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Constitution Provides Tools to Defend State Law Restricting Money in Elections from Citizens United Challenge

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Vermont Attorney General Bill Sorrell turned victory into defeat. Vermont won a suit filed by Vermont Right to Life seeking to bar enforcement of provisions of Vermont's campaign finance law. US District Court Judge William K. Sessions III issued the 80 page decision on June 21.The decision dismissed all claims by the plaintiff and affirmed all by the state. 

Notwithstanding this important victory, on July 25 Vermont Attorney General Bill Sorrell announced that he will not enforce certain provisions of Vermont's campaign finance law in future cases and that he will seek a change in the law, opening the floodgates of money in Vermont state elections.

One of the first beneficiaries of this non-enforcement was Attorney General Bill Sorrell himself. An out-of-state PAC started purchasing nearly $184,000 of TV ads in support of Attorney General Sorrell's re-election campaign against Chittenden County State's Attorney T.J. Donovan soon after Mr. Sorrell's announcement that he would not enforce Vermont's limits on "independent" PAC contributions.

The authors of this article reviewed US Supreme Court cases and found four grounds on which Vermont can enforce and defend its campaign finance law--notwithstanding the Supreme Court decision in Citizens United. These grounds, and the US Supreme Court cases supporting, them are described in a detailed letter to Vermont Attorney General Bill Sorrell and Assistant Vermont Attorney General Megan J. Shafritz. They include state sovereign immunity, standing, the political question doctrine, and an exception to Citizens United carved out by the Supreme Court for foreign sources of money.

Most importantly, the authors found recent US Supreme Court decisions showing that the usual exception to sovereign immunity--called "the Young fiction"--does not apply when the fundamental sovereign legitimacy of the state government is at risk by a suit against the state. Nothing is more fundamental to the legitimacy of state government than election integrity that ensures a government of, by, and for the people. That election integrity was unnecessarily put at risk by Mr. Sorrell's non-enforcement of Vermont campaign finance law.

August 22, 2012

Bill Sorrell, Vermont Attorney General

Megan J. Shafritz, Esq.,

Assistant Attorney General, Civil Division Chief

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Office of the Attorney General

109 State Street, 3rd Floor

Montpelier, Vermont 05609-1001

Dear Attorney General Sorrell and Assistant Attorney General Shafritz:

Thank you very much for responding to my email to Attorney General Sorrell regarding the defense of Vermont law restricting corporate and individual spending in Vermont elections. This letter also responds to public statements about sovereign immunity made on August 16 by Mr. Sorrell during a debate in Burlington with TJ Donovan, his opponent in the Democratic Primary.

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Defending Vermont election finance law is important to all Vermont citizens who want to prevent a regime in Vermont in which our Vermont candidates--or anyone acting on their behalf--"have the constitutional right to purchase their election," Buckley v. Valeo, 424 U.S. 1, 260 (1976) (White, J. dissenting).

Because your letter and Mr. Sorrell's statement reflected a fundamental misunderstanding of the law related to sovereign immunity I asked Rob Hager, an expert in this area of law who prepared an amicus brief in the recent Montana election finance case, to join me in the following detailed letter.

In this letter we will show that US Supreme Court decisions provide ample grounds for Vermont to enforce its election finance law and for the defense of that law from suit by a private party. These US Supreme Court decisions suggest that, while the Ex Parte Young exception to sovereign immunity you mention is certainly applicable to many civil rights matters, the exception is not applicable where the fundamental sovereign legitimacy of a state is put at risk by a private party lawsuit. Attorney General Sorrell's recent public statement equating the use of 11th Amendment sovereign immunity to protect state election integrity laws that prevent purchase of elections with the proper federal enforcement of civil rights laws against states in the South several decades ago shows that his understanding of 11th Amendment jurisprudence may be somewhat out of date.

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James Marc Leas is a member of the National Lawyers Guild

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