cutler files federal filing

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

DENNIS BAILEY, )

)

Plaintiff )

)

v. ) Civil No.:1:11-cv-00179-NT

)

STATE OF MAINE COMMISSION ON )

GOVERNMENTAL ETHICS )

AND ELECTION PRACTICES )

)

Defendant )

and )

)

ELIOT CUTLER )

)

Intervenor-Defendant )

)

DEFENDANT-INTERVENOR’S

MOTION FOR SUMMARY JUDGMENT AND

INCORPORATED MEMORANDUM OF LAW

MOTION

Defendant-Intervenor Eliot Cutler moves this Court, pursuant to Rule 56 of the Federal

Rules of Civil Procedure, for summary judgment on all counts of Plaintiff’s Complaint. The

reason for this motion, as more fully set forth in the incorporated memorandum of law and

accompanying Joint Statement of Material Facts, is that there is no disputed issue of material fact

and the Defendant and Defendant –Intervenor are entitled to judgment as a matter of law.

INCORPORATED MEMORANDUM OF LAW

INTRODUCTION

Contrary to the efforts by Plaintiff Dennis Bailey to paint himself as a “citizen journalist”

whose constitutional rights have been trampled on by the Defendant State of Maine Commission

Case 1:11-cv-00179-NT Document 69 Filed 02/08/12 of 28 PageID #: 1718

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on Governmental Ethics and Election Practices (the “Commission”), the undisputed record in

this case establishes that this is a case of political character assassination by political operatives

working at the direction of one candidate against another candidate, accomplished via an

anonymous political attack website known as the “Cutler Files.” Thus, the record establishes

that Rosa Scarcelli’s husband, Thomas Rhoads, began the research that was ultimately used to

create the Cutler Files website shortly after his wife entered the race for Governor in the State of

Maine; that he did so specifically to strengthen her position with the Democratic Governors’

Association; that in addition to Scarcelli’s husband and senior political advisor (Bailey), others

involved with the Scarcelli campaign, including a public relations firm and a campaign worker,

offered suggestions as to content and research for the site; that Bailey and Rhoads had a keen

interest in anonymity and a willingness to “slither by” questions posed to them about their role in

the website in order to hide the connection between the website and the Scarcelli campaign; and

that as early as November of 2009 (well before Scarcelli lost the primary in June, 2010), the

candidate herself wrote to Rhoads and Bailey that “I think it’s highly important to start a blog

campaign” against Cutler and then again in July of 2010 (shortly before the Cutler Files was

posted) that “we need to start blogging all the goods.”

The record further reflects that, contrary to the allegation in the complaint that the value

of the website was de minimus, Bailey was paid over $68,000 by two gubernatorial campaigns

running against Eliot Cutler while he worked on the Cutler Files; that the out-of-pocket

expenditures on the website actually exceeded the statutory $100 financial reporting threshold

for independent expenditures (contrary to what Bailey and Rhoads told the Commission during

its investigation); that voter history information on Eliot and Melanie Cutler published on the

Cutler Files was not available to the general public but was obtained by Bailey and Rhoads


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through State voter records purchased by the Scarcelli campaign at a cost of $10,000 with a

requirement that use of the records be “directly related to a campaign”; and that candidate

Scarcelli and her husband valued the opposition documents and research that were ultimately

published on the Cutler Files at $30,000 and, after Scarcelli lost the primary, tried to sell those

documents for that amount to other campaigns opposing Eliot Cutler.

Finally, the undisputed record puts to rest one of the central underpinnings of the

Plaintiff’s position in this case – that the Scarcelli campaign was over before the Cutler Files was

published. To the contrary, it is undisputed here not only that the Rosa for Maine campaign was

continuing to file reports with the State during the relevant time period, but that Scarcelli—with

the advice of Rhoads and Bailey—was making preparations for “her next move,” and in that

regard, her team was particularly focused on defeating Cutler in the general election. Thus,

emails generated in that time frame reveal Rhoads, Scarcelli and Bailey hoping that Independent

candidate Shawn Moody (for whom Bailey was working at the time) would make a strong

enough showing to take votes away from Cutler, suggesting that they start “a prayer circle” for

Republican Paul LePage, and warning that they needed a plan if Cutler were to prevail.

In short, the record establishes beyond dispute that the Cutler Files was not a “news story,

commentary or editorial,” but was a negative campaign advertisement with no other reasonable

interpretation than advocating the defeat of Eliot Cutler, the content and idea of which were

created by Dennis Bailey and Thom Rhoads as part of a campaign strategy in their roles as

members of Rosa Scarcelli’s political campaign. Furthermore, the web site was not “distributed

through the facilities of any … periodical publication,” but was instead financed and published

by Dennis Bailey during a time when he was being paid tens of thousands of dollars to manage

the press relations of the competing gubernatorial candidate Shawn Moody, and simultaneously


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providing strategic and public relations advise to Scarcelli with respect to her future political

endeavors. The Cutler Files was therefore not subject to the statutory exemption in 21-A M.R.S.

§1012(3)(B)(1), nor was it Constitutionally entitled to that or any other exemption from Maine’s

campaign attribution and disclaimer laws. The Commission did not violate any statutory or

Constitutional rights of Dennis Bailey in fining him $200 for this clear violation of Maine’s

campaign finance laws. This Court should therefore enter judgment in favor of the Commission

and Defendant-Intervenor on each of Bailey’s claims.

STATEMENT OF FACTS

The undisputed facts relevant to Intervenor Eliot Cutler’s motion for summary judgment

are set forth in full in the accompanying Statement of Material Facts. In brief, they are as

follows. Plaintiff Dennis Bailey, through his public relations firm, Savvy, Inc., is in the

business of “generating awareness [and] influence” for his clients. JSMF ¶¶ 3-7. He was hired

to promote Rosa Scarcelli for governor by the Rosa for Maine campaign in September, 2009, and

was paid at least $33,000 for his work on the campaign. JSMF ¶¶21-22. His position was that of

senior political advisor and within the campaign and he was responsible for campaign

communications. JSMF ¶¶24-25. In that position, he had the authority to make decisions with

respect to campaign communications on behalf of the campaign himself. JSMF ¶26.

Although Savvy, Inc. did not go under contract with Rosa for Maine until September,

2009, the campaign was officially launched on July 15, 2009. JSMF ¶¶17-19. At or around that

time, candidate Rosa Scarcelli signed a pledge in which she promised not to participate in, and to

condemn negative attacks on other gubernatorial candidates. JSMF ¶20. That notwithstanding,

her husband Thomas Rhoads, who was an active volunteer in his wife’s campaign, began doing

opposition research on Eliot Cutler, an independent candidate for governor, in the late summer of


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2009. JSMF ¶¶27-32, 36. Scarcelli was aware of this activity on the part of her husband. JSMF

¶41-42.

In mid-October, 2009, Rhoads prepared, and sent to Bailey for editing, a document he

called “Top 10 Eliot Cutler Vulnerabilities,” in which he detailed a number of negative charges

against Cutler.1 JSMF ¶¶44-47. Scarcelli has testified that the purpose of her husband’s research

on Eliot Cutler was to put her in a strategic position to convince the Democratic Governors’

Association that she was the best Democratic candidate. JSMF ¶42. Thus, Scarcelli asked her

husband to prepare a briefing book on Cutler as she prepared to make a trip to the DGA and

Rhoads did so. JSMF ¶¶42-58. That memo reflects the thinking of the Rosa for Maine

Campaign at the time. JSMF ¶¶49-61. It identifies Cutler as a serious threat, it suggests that there

are problems with his background and it proposes that “making him a pariah and putting him on

the defensive early could kill Cutler’s changes of ever achieving crucial momentum state-wide.”

JSMF ¶¶ 55-57.

The sentiments expressed by Rhoads in the DGA Memo were echoed by others in the

campaign at the time. JSMF ¶¶49-61. For example in a November 24, 2009 email, Bailey

referenced discussing a strategy to “take Cutler out now.” JSMF ¶50. Scarcelli’s Campaign

Manager Patsy Wiggins responded “I agree. Let’s talk Monday.” JSMF ¶¶50-51 And Scarcelli

added:

I agree as well. There is enough skepticism now, that I feel we need to dislodge him

before he develops roots. I think it’s highly important to start a blog campaign against

him. . .

JSMF ¶ 51.

In addition to providing the “Top 10 Vulnerabilities” document to Bailey, Rhoads also

provided it to a political consultant with a public relations firm called Link Strategies that was

1 This document was ultimately incorporated into the Cutler Files Website. JSMF ¶¶48,124,139-145.


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working for the Rosa for Maine campaign and to Wiggins, who, in turn, suggested forwarding it

to DGA. JSMF ¶¶49,52, 58-60, 61-66. In an email string entitled “How do you think this would

look on a blog for starters,” Bailey and Rhoads discussed not only content for a proposed website

but also suggestions provided by the Link Strategies consultant for that website. JSMF ¶¶63-69.

In another email, the Link Strategies consultant cautioned against releasing the information

directly from the campaign because, he said, it would be “kinda awkward.” JSMF ¶66.

Over the next couple of months, Bailey and Rhoads agonized over how to publicize what

they had developed about Cutler without attribution. JSMF ¶¶67, 70-84,104-114. They tried to

interest various reporters but made it clear that the reporters “absolutely can’t say” where the

information came from. JSMF ¶¶70, 74-75, 77-80. They also worried about timing, with

Rhoads opining to one reporter that after the primary might be “too late.” JSMF ¶ 80.

In June, 2010, Scarcelli lost the primary. After the loss, Scarcelli and her husband

attempted to hawk the Cutler research to other campaigns in order to pay down the debt of the

Rosa for Maine campaign. JSMF ¶¶ 95-103. Their asking price was $30,000, a price that was

calculated in part because of the amount of work that had gone into preparing the information.

JSMF ¶¶ 97-99. Not surprisingly, however, no other campaign showed an interest in the

product. JSMF ¶ 103.

After the Democratic primary, Bailey went to work for Shawn Moody, who was an

independent candidate for governor in the general election. JSMF ¶¶88-89. Bailey was paid at

least $35,000 for his work on the Moody campaign. JSMF ¶91. However, even while collecting

a retainer from Moody, Bailey continued to work with Scarcelli and Rhoads as they began

thinking about Scarcelli’s next political move. JSMF ¶¶85-86,92-94,100-102. They considered

a potential win by Cutler in the election to be a major obstacle to Scarcelli’s future and were


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therefore focused intently on defeating Cutler. JSMF ¶¶92-94, 104-113, 154-156. And in that

regard, the information Bailey and Rhoads had developed about Cutler before the primary played

a major role. JSMF ¶¶104-118.

Thus, communications between Rhoads, Scarcelli and Bailey during the beginning of

July focused heavily on the Cutler research. JSMF ¶¶104-124. On July 1, 2010, Rhoads and

Bailey met to discuss plans for publishing the material themselves. JSMF ¶¶104-108. Then, five

days later, Scarcelli, referring to the Cutler material, wrote to the two men that “we need to start

blogging all the goods. We need to liven the party up!” JSMF ¶¶109-110. Rhoads agreed,

writing to Scarcelli and Bailey on July 10, 2010 “I think it makes most sense to go out with it

[the Cutler research] on our own independently on a website.” JSMF ¶¶111-112. Scarcelli’s

response to Rhoads’ suggestion -- “and give it to Paul” -- referring to gubernatorial candidate

Paul LePage, demonstrates her assent as well as the lengths the group was willing to go to see

Cutler defeated . JSMF ¶¶112-113.

Bailey prepared a mock up of the site on July 15, 2010, using material he and Rhoads had

drafted while working for the Rosa for Maine campaign in the primary. JSMF ¶¶114-116. They

then enlisted the help of an attorney working for Scarcelli who had previously worked on the

Rosa for Maine campaign to do some research. JSMF ¶¶119-122. Bailey and Rhoads also spent

a considerable amount of time considering the issue of anonymity. JSMF ¶¶75-76,81-82,105-

108, 127. They worried about how the site might adversely affect Scarcelli, and also how it

would look if they went to great lengths to hide their identities. JSMF ¶¶106-108 Shortly before

going live with the website, Bailey wrote:


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The fewer who know the better. I would like someone else to actually upload this stuff

so I don’t have to lie when the press calls. One thing I learned from the Wikileaks story:

he uploads files from different coffee shops so the IP a dress [sic] can’t be traced.

JSMF ¶127.

The Cutler Files went live on August 30, 2010. JSMF ¶128. It included information

about its authors that was patently false. JSMF ¶¶131,135-36,186-87. It also included deceptive

and defamatory charges against Cutler, so on September 3, 2010 the Cutler campaign filed a

complaint about the website with the Commission. JSMF ¶129,133,138-145. The Rosa for

Maine campaign had on-going financial activity through August, 2010 and the campaign did not

officially terminate until it filed its last report on December 30, 2010. JSMF ¶87. Thus, the

Rosa for Maine campaign existed for the entire period the website was publicly accessible on the

internet. JSMF ¶¶19,87,128,136.

In connection with the Commission’s investigation and resulting public interest in that

investigation, Bailey provided false information to the Commission about his participation, see

e.g. JSMF ¶¶146-47 (Bailey to Wayne “I have limited info [about Cutler Files] but I’m certainly

willing to share what I know”); compare JSMF ¶148-49 (“I think I said [to Wayne] I was not

directly involved in the material. I didn’t write the material”) with JSMF ¶124,139-40,144-45

(“I’m going to finish the Thornburg piece today”) as did Rhoads, compare JSMF ¶160 (“The

idea of a website did not emerge until the summer of 2010”) with JSMF ¶¶67-73,76,124 (emails

between Bailey and Rhoads on January 14, 2010 with subject line “How do you think this would

look on a blog – for starters?”). Scarcelli was not interviewed by the Commission, but what she

said in her public statement about her participation was also false. Compare JSMF ¶161 (“Let

me be clear – as I have said from the beginning, there was no involvement by me or my

campaign in the Cutler Files website – in any way, shape or form”) with JSMF ¶51 Scarcelli


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writes: “I feel we need to dislodge [Cutler] before he develops roots. I think it’s highly

important to start a blog campaign against him”), JSMF ¶52 (Scarcelli campaign manager asking

Rhoads to send the Cutler research to a staff person at the DGA), JSMF ¶66 (Link Strategies

consultant suggests “having a blogger write about this stuff”); JSMF ¶¶95-97,100 (Scarcelli

offering to sell the Cutler research to Libby Mitchell); JSMF ¶109 (Scarcelli writes: “Perfect.

This is why we need to start blogging all the goods.”); JSMF ¶¶38-40, 124,140 (Cutler Files

website contained voter information not available to the general public that was purchased by the

Rosa for Maine campaign for purposes and activities “directly related to a campaign.”).

Furthermore, contrary to what Rhoads and Bailey told the Commission during its

investigation, the out-of-pocket expenditures on the website actually exceeded the statutory $100

financial reporting threshold for independent expenditures. JSMF ¶172. The website also

included voter history information on Eliot and Melanie Cutler that was not available to the

general public but was obtained by Bailey and Rhoads through State voter records purchased by

the Rosa for Maine campaign from the State of Maine for purposes and activities “directly

related to a campaign” at a cost of $10,000. JSMF ¶ 38-40, 124,140.

ARGUMENT

I. THE STANDARD FOR SUMMARY JUDGMENT

On a motion for summary judgment, the moving party bears the burden of showing

that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed.R.Civ.P. 56(a). Once the movant has made this preliminary showing “the

nonmoving party must “produce specific facts, in suitable evidentiary form, to establish the

presence of a trialworthy issue.” Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st

Cir.1999) see also Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir.2011) (“A properly


https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1004365&cite=USFRCPR56&originatingDoc=I37c2d57f8d1511e0a8a2938374af9660&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)

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supported summary judgment motion cannot be defeated by conclusory allegations, improbable

inferences, periphrastic circumlocutions, or rank speculation.”) (citations omitted).

In this case, Plaintiff asserts five claims against Maine’s Commission on Governmental

Ethics: Count I is a claim pursuant to 42 U.S.C. § 1983 that 21-A M.R.S. § 1014 and 21-A

M.R.S. §1012(3)(B)(1) as applied to Plaintiff constituted a violation of Plaintiff’s rights under

the First Amendment; Count II is a claim pursuant to 5 M.R.S. § 11007(4)(C) that the same

constituted a violation of Maine’s Administrative Procedures Act; Count III is a claim pursuant

to 42 U.S.C. § 1983 that the same constituted a violation of Plaintiff’s Equal Protection rights;

Count IV appears identical to Count I but grounded in different facts alleging a de minimus

expenditure of money; and Count V is a claim pursuant to 5 M.R.S. § 11007(4)(C) that the fine

imposed by the Commission violated 21-A M.R.S. § 1014(4). As discussed more fully below,

the Commission is entitled to judgment as a matter of law on all five of these claims.

II. THE ATTRIBUTION REQUIREMENTS OF 21-A M.R.S. § 1014 ARE CONSISTENT WITH THE

FIRST AMENDMENT AS APPLIED TO DENNIS BAILEY_(COUNTS I , AND IV)

A. The Legal Standard

The attribution requirements of the version of the Maine Campaign Finance laws in effect

at the time the Cutler Files was posted on the internet require that

[w]henever a person makes an expenditure to finance a communication expressly

advocating the election or defeat of a clearly identified candidate through

broadcasting stations, newspapers, magazines, campaign signs or other outdoor

advertising facilities, publicly accessible sites on the Internet, direct mails or other

similar types of general public political advertising or through flyers, handbills,

bumper stickers and other nonperiodical publications, the communication … must

clearly state the name and address of the person who made or financed the

expenditure for the communication….


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21-A M.R.S. § 1014(1) and (2) (West 2010)2 (emphasis added). The same statutory provision

requires a disclaimer as to whether the communication was authorized by any candidate. Id.

Closer to the election, any communication that “names or depicts a clearly identified candidate”

and is disseminated during the 35 days before a general election must also include an attribution

and disclaimer. 21-A M.R.S. § 1014(2-A). It is uncontested that the Cutler Files was a “publicly

accessible site[] on the Internet,” that “advocate[ed] the … defeat of a clearly identified

candidate,” and that “name[d] or depict[ed] a clearly identified candidate” and was disseminated

before and within the “35 days before a general election.” JSMF ¶180. It is also uncontested that

the website did not ever “state the name and address of the person who made or financed the

communication,” JSMF ¶165, but instead contained false and misleading information about its

authors. JSMF ¶¶131-32,135-37,185-87. The website was therefore in facial violation of 21-A

M.R.S. § 1014(2) and (2-A).

In evaluating the as-applied First Amendment challenge brought by the Plaintiff in this

case, the Court must determine whether enforcing the statute against Dennis Bailey has a

substantial relation to the governmental interests that support the statute. Nat'l Org. for Marriage

v. McKee, 649 F.3d 34, 57 (1st Cir. 2011) (“NOM I”)3. The First Circuit, in upholding the

attribution and disclaimer provisions of 21-A M.R.S. § 1014 as “unquestionably constitutional”

under a First Amendment challenge, recognized three “sufficiently important” and/or

“compelling” governmental interests. Id.

2 In 2011, the Maine Legislature amended certain portions of Section 1014. The above quoted language was

amended in a manner not relevant here by adding the words “cable television systems,” between the words

“broadcasting stations” and “newspapers.” The citations to statutes contained in this brief will be to the statutes in

effect in 2010. 3 This memorandum adopts the case nomenclature of the First Circuit. See Nat’l Org. for Marriage v. McKee, ---

F.3d ---, 2012 WL 265843at *1 (Jan. 31, 2012) (NOM II) (referring to its earlier decision at 649 F.3d 34 as “NOM

I”).


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The first was an informational interest in “providing the electorate with information as to

where political campaign money comes from and how it is spent.” Id. (quoting Buckley v. Valeo,

424 U.S. 1, 66 (1976)). The First Circuit noted that this informational interest was sufficiently

important because:

It allows voters to place each candidate in the political spectrum more precisely than is

often possible solely on the basis of party labels and campaign speeches. The sources of a

candidate's financial support also alert the voter to the interests to which a candidate is

most likely to be responsive and thus facilitate predictions of future performance in

office.

Id. (quoting Buckley, 424 U.S. at 67). The sources of a candidate’s financial opposition are

equally important to a voter attempting to make such predictions.

The second informational interest is highlighted by the recent Supreme Court case

Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, (2010). In describing this interest, the

First Circuit emphasized that the government has a particularly strong interest in identifying the

speakers responsible for attacks on candidates in light of “the rise of internet reporting”:

However, the informational interest is not limited to informing the choice between

candidates for political office. As Citizens United recognized, there is an equally

compelling interest in identifying the speakers behind politically oriented messages. In an

age characterized by the rapid multiplication of media outlets and the rise of internet

reporting, the “marketplace of ideas” has become flooded with a profusion of information

and political messages. Citizens rely ever more on a message's source as a proxy for

reliability and a barometer of political spin. Disclosing the identity and constituency of a

speaker engaged in political speech thus “enables the electorate to make informed

decisions and give proper weight to different speakers and messages.”[fn]33

Citizens

United, 130 S.Ct. at 916; see also Cal. Pro–Life Council, Inc. v. Getman, 328 F.3d 1088,

1105 (9th Cir.2003) (recognizing that, in the “cacophony of political communications

through which ... voters must pick out meaningful and accurate messages [,] ... being able

to evaluate who is doing the talking is of great importance”).

NOM I, 649 F.3d at 57. The First Circuit further stated:

As the Court observed in First National Bank v. Bellotti, 435 U.S. 765, 98 S.Ct.

1407, 55 L.Ed.2d 707 (1978), “the people in our democracy are entrusted with the

responsibility for judging and evaluating the relative merits of conflicting arguments.


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They may consider, in making their judgment, the source and credibility of the advocate.”

Id. at 791–92, 98 S.Ct. 1407 (footnote omitted).

Id. at 57 n. 33.

Finally, in Nat’l Org. of Marriage, the First Circuit recognized (but did not rely on) a

third governmental interest in “gathering data necessary to enforce substantive election law

restrictions.” Id. at 57 n. 34. The First Circuit ultimately held that

“Citizens United has effectively disposed of any attack on Maine's attribution and

disclaimer requirements.” Nat'l Org. for Marriage, 723 F.Supp.2d at 267. … The

requirements are minimal, calling only for a statement of whether the message was

authorized by a candidate and disclosure of the name and address of the person who

made or financed the communication. Me.Rev.Stat. tit. 21–A, § 1014(1)–(2). These are

precisely the requirements approved in Citizens United, 130 S.Ct. at 913–14 (citing 2

U.S.C. § 441d), and they bear a close relation to Maine's interest in dissemination of

information regarding the financing of political messages. The disclaimer and attribution

requirements are, on their face, unquestionably constitutional.

Id. at 61.

B. Applying Section 1014 to Dennis Bailey and the Cutler Files is Constitutional Because

Bailey Does Not Have Additional Constitutional Rights as a Citizen Journalist

The “press”—including any bloggers or citizen journalists who style themselves as

members thereof— has no “constitutional privilege beyond that of other speakers.” Citizens

United, 130 S.Ct. at 905 (majority opinion) (quoting Austin v. Michigan Chamber of Commerce,

494 U.S. 652, 691 (1990) (Scalia, J., dissenting)). Bailey therefore has no basis for an as-

applied constitutional challenge by virtue of labeling himself a blogger or a citizen journalist.

Furthermore, the press exemption is not a constitutional mandate. Austin, 494 U.S. at 668 (“the

press’ unique societal role may not entitle the press to greater protection under the Constitution,”

but it does provide a justification for legislatively created exemptions to constitutionally

permissible limitations). Although Citizens United overruled portions of McConnell and Austin,

those earlier cases were not inconsistent with Citizens United on the point that the press


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exemption is not a constitutional mandate: McConnell was silent on the issue, Citizens United,

130 S. Ct. at 913; and Austin held only that a media exemption was constitutionally permissible,

not that it was constitutionally mandatory. Austin is thus still binding precedent on this point.

Indeed, a recent Federal District Court decision in Colorado rejected an as-applied

challenge to municipal campaign finance attribution and disclosure ordinance that contained no

press exemption at all:

Ms. Olson has presented no case law, and the Court has found none, holding that

the First Amendment requires that the press must be excluded from campaign

funding disclosure requirements.

Olson v. City of Golden, Colo., 07-CV-01851-MSK-KMT, --- F. Supp. 2d. ---, 2011 WL

3861433, at *9 (D. Colo. Sept. 1, 2011). Press entities (including “bloggers” and “citizen

journalists”) are not entitled to any additional protection under the First Amendment than is an

ordinary citizen. The government has just as strong an interest in applying campaign finance

laws to “citizen journalists” as it does in applying such laws to ordinary citizens. See, e.g.,

Eugene Volokh, Freedom for the Press As an Industry, or for the Press As A Technology? From

the Framing to Today, 160 U. Pa. L. Rev. 459, 506-521 (2012) (widely canvassing First

Amendment jurisprudence, including campaign finance laws, and concluding that the Supreme

Court’s decisions since 1931 “generally take the all-speakers-equal view” and reject the idea that

users of mass communication or members of the press have any heightened constitutional rights).

Therefore, the Court need not determine whether Bailey was or was not a citizen

journalist or a blogger in order to determine if the law was Constitutionally enforced against him;

instead, the court must determine whether applying the attribution and disclaimer provisions of

Section 1014 to Bailey furthers the governmental interests behind that statute. Olson, 2011 WL

3861433, at *9-10. Whether Bailey should be covered by Maine’s “press exemption” is not a


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matter of Constitutional law, but of statutory construction.4 The statutory construction aspect of

Maine’s press exemption is more fully addressed in Section IV below. Furthermore, because

Section 1014 does not contain a minimum financial threshold, the court need not separately

analyze Bailey’s two as-applied First Amendment claims, but should instead focus on whether

enforcing Section 1014 against Bailey furthers any of the governmental interests that support

Section 1014.

Bailey cannot succeed on an as-applied or a de minimus challenge to Section 1014

because, contrary to the allegations in the complaint that the value of the website was de minimus

and that Bailey was not working for any candidate, the record reflects that Bailey was paid over

$68,000 by two gubernatorial campaigns running against Eliot Cutler while he worked on the

Cutler Files; that the out-of-pocket expenditures on the website actually exceeded the statutory

$100 financial reporting threshold;5 that the voter history information on Eliot and Melanie

Cutler contained on the website was not available to the general public but was obtained by

Bailey and Rhoads through State voter records purchased by the Scarcelli campaign at a cost of

$10,000; that time and effort was contributed by additional campaign professionals working for

the Scarcelli campaign; and that candidate Scarcelli and her husband valued the opposition

documents and research that was ultimately published on the Cutler Files at $30,000 and tried to

sell it for that amount to other campaigns opposing Eliot Cutler after Scarcelli lost the primary.

4 It is worth noting, however, that this same media exemption has been upheld as Constitutional in several Supreme

Court cases addressing federal and state expenditure laws. FEC v. Massachusetts Citizens for Life, 479 U.S. 238

(1986); Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 667 n.5, 110 S. Ct. 1391, 1401 n.5, (1990)

overruled in part by Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010); McConnell

v. Fed. Election Comm'n, 540 U.S. 93, 228, 124 S. Ct. 619, 709, (2003) overruled in part in part by Citizens United

v. Fed. Election Comm'n, 130 S. Ct. 876, 175 L. Ed. 2d 753 (U.S. 2010). The Olson court also upheld a

subsequently enacted ordinance that created a “news story” exemption identical to Maine’s. Olson, 2011 WL

3861433, at *2, *6. 5 As a matter of law, an expenditure of over $100 is not de minimus for purposes of Section 1019-B, and therefore

could not be de minimus for purposes of §1014 which provides no financial minimum. NOM I, 649 F.3d at 59-61;

see also Ctr. for Individual Freedom, Inc. v. Tennant, 1:08-CV-00190, --- F. Supp. 2d. ---, 2011 WL 2912735 *45

(S.D.W. Va. July 18, 2011) (upholding a statute, like Maine’s statute, with no monetary minimum for the attribution

and disclaimer requirements).


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The amount of money involved, and Bailey’s financial ties to competing gubernatorial

candidates demonstrate that all three governmental interests would be furthered by enforcement

of Section 1014 against Bailey. The first interest is furthered because attributing the website to

Bailey would have helped inform the electorate where and against whom campaign money was

being spent, and “allow[] voters to place each candidate in the political spectrum more precisely

than [would be] possible solely on the basis of party labels and campaign speeches.” NOM I,

649 F.3d at 57. The second interest is furthered because identifying Bailey as the speaker would

have been “a proxy for reliability and a barometer of political spin.” Id. And the third interest in

aiding the “gathering data necessary to enforce substantive election law restrictions” is furthered

because enforcing the attribution provisions against Bailey—who had known ties to the Scarcelli

and Moody campaigns—would have aided the government and the public in determining that the

website contained non-public voter information that the Rosa for Maine campaign disclosures

indicate had been purchased by her campaign at a cost of $10,000. This last interest is especially

important in light of the fact that in this case false and misleading statements were made to the

Commission and to the press by Bailey, Rhoads, and Scarcelli about their respective

involvement. Had Bailey and Rhoads fully disclosed the costs that went into the website, Bailey

would likely also have been fined by the Commission for his violation of Section 1019-B.

C. Applying Section 1014 to Dennis Bailey Furthers the Governmental Interests Because He

Was Paid to Handle the Press Communications of Two Competing Candidates, Each of

Whom Had Signed The Maine Code of Fair Campaign Practices Pledge.

One provision of Maine’s Campaign Finance Laws rests entirely on the Commission

enforcing Section 1014 against individuals who are being paid (in Bailey’s case $68,000 in

retainers) to manage the communications of competing gubernatorial campaigns: The Maine


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Code of Fair Campaign Practices. 21-A M.R.S. § 1101 is meant to prevent negative campaign

practices like anonymous political attack websites:

The purpose of this bill is to provide a mechanism to identify and discourage the

use of negative campaign practices which by distorting the truth, unfairly

influence the voters and skew the election process.6

Statement of Fact to LD 2158, An Act to Discourage Negative Campaign Practices, (establishing

the Maine Code of Fair Campaign Practices, codified at 21-A M.R.S. § 1101 et seq). The pledge

is not mandatory, but once a candidate voluntarily signs such a pledge, Maine has an increased

informational interest in enforcing its attribution and disclaimer requirements of Section 1014

against any person involved in or acting in coordination with that candidate’s campaign,

including, Dennis Bailey. Furthermore, because there is no penalty for a candidate violating the

pledge, the only way a candidate is held accountable for a violation of the pledge is that the

signed code forms are accepted by the Commission and retained as public records. This allows

the public to determine for itself when the candidate has violated the pledge. Thus, in order for

the signed pledge forms to have the government’s intended effect, the attribution and disclaimer

6 At least two members of the Supreme Court have identified a compelling governmental interest “in promoting a

civil and dignified level of campaign debate.” See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 382 (1995)

(Scalia, J. dissenting). Justice Scalia, joined by Justice Rehnquist presciently cautioned against any extension of a

constitutional protection for anonymous negative campaign advertisements:

Observers of the past few national elections have expressed concern about the increase of

character assassination-“mudslinging” is the colloquial term-engaged in by political candidates

and their supporters to the detriment of the democratic process. Not all of this, in fact not much of

it, consists of actionable untruth; most is innuendo, or demeaning characterization, or mere

disclosure of items of personal life that have no bearing upon suitability for office. Imagine how

much all of this would increase if it could be done anonymously. The principal impediment

against it is the reluctance of most individuals and organizations to be publicly associated with

uncharitable and uncivil expression.

McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 382-83 (1995) (Scalia, J. dissenting). Furthermore, in an 8-1

decision the majority in Citizen’s United effectively adopted this portion of the McIntyre dissent. Citizens United,

130 S. Ct. at 915 (for communications that “refer[] to [a candidate] by name shortly before a primary and contained

pejorative references to her candidacy [on-speech attributions and disclaimers] provide the electorate with

information, and insure that the voters are fully informed about the person or group who is speaking. Identification

of the source … may be required as a means of disclosure, so that the people will be able to evaluate the arguments

to which they are being subjected.”) (internal quotations and citations omitted).


18

requirement of Section 1014 must be enforced with respect to professional campaign consultants

who are paid $68,000 to manage the press communications of two candidates for governor.

A “candidate for the office of governor” who signs a pledge to follow the Maine Code of

Fair Campaign Practices—including in this case both Rosa Scarcelli and Shawn Moody—makes

the following pledges (among others):

I shall not participate in and I shall condemn defamation of and other attacks on any

opposing candidate or party that I do not believe to be truthful, provable and relevant to

my campaign.

I shall not use or authorize and I shall condemn material relating to my campaign that

falsifies, misrepresents or distorts the facts, including, but not limited to, malicious or

unfounded accusations creating or exploiting doubts as to the morality, patriotism or

motivations of any party or candidate.

I shall promptly and publicly repudiate the support of any individual or group that resorts,

on behalf of my candidacy or in opposition to that of an opponent, to methods in

violation of the letter or spirit of this code.

21-A M.R.S. § 1101(2). The term “any opposing candidate” includes all “candidate[s] for the

office of Governor” whether they are a primary candidate or a general election candidate for that

office. 21-A M.R.S. § 1101(2); 21-A M.R.S. § 1(5). Both candidates for whom Bailey worked

signed this pledge. JSMF ¶¶20,90.

The existence of the signed pledges by the two candidates who were paying Bailey tens

of thousands of dollars to manage the media communications for their campaign makes

enforcement against Bailey particularly important. The facts suggest that Scarcelli was aware of

the (if not directing) the work being done by Bailey and Rhoads, and that Shawn Moody had no

idea that his only paid campaign staff (Bailey) was involved. In an interview with the

Commission, Shawn Moody stated that, consistent with the pledge he signed, he “would not

have condoned a negative website like the Cutler Files” if he had known about it. JSMF ¶163.

In the absence of the Commission enforcing Section 1014 against a paid political consultant to


19

the Shawn Moody campaign, Moody would have (and did have) no way to comply with his

pledge. In the absence of enforcing Section 1014 against a paid consultant to the Scarcelli

campaign, the public would have no way to hold Scarcelli accountable for her failure to comply

with her pledge. Again, this is particularly true in this case because Bailey, Rhoads and

Scarcelli all provided false or misleading statements about their involvement to the public.7

D. Applying Section 1014 to Dennis Bailey Is Constitutional Because Bailey Gave Up Any

Interest in Anonymous Campaign Communication About Cutler By Accepting $68,000

to Manage The Communication of Two Competing Gubernatorial Candidates

Although the government’s interest in enforcing Section 1014 may decrease when “the

name and address of the author add little, if anything, to the reader's ability to evaluate the

document's message,” McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 348-49, 115 S. Ct.

1511, 1520 (1995), Bailey cannot maintain an as-applied or a de minimus challenge under

McIntyre because he was being paid tens of thousands of dollars to handle the media

communications of two competing gubernatorial campaigns. Both Bailey and the candidates for

whom he worked were public figures within the gubernatorial campaign. Therefore, his name

and address would have served as a “barometer for political spin” and added much “to the

reader's ability to evaluate the document's message.” NOM I, 649 F.3d at 57; cf. McIntyre, 514

U.S. at 348-49.

7 Scalia’s warnings in McIntyre, about how much “character assassination-‘mudslinging’ … would increase if it

could be done anonymously” and how candidates might even engage in “dirty tricks” and anonymously attack

themselves “with the hope and expectation that it will be attributed to, and held against, the other side,” McIntyre,

514 U.S. at 382-83 (Scalia, J. dissenting), becomes even more prescient when compared to the actual methodology

used by Dennis Bailey and Thomas Rhoads in the Cutler Files. Scalia’s comments were made in contemplation of a

two-candidate election. In this multi-candidate election, the Cutler Files authors (agents of a Democratic candidate

and an Independent candidate) attempted to target those who might be swayed into believing the anonymous

character assassination and mudslinging against Cutler and simultaneously mislead those who might be turned off

by the “really tasteless” attack into believing that the authors of the website were from the Republican party. For

example, part of the language of the site stated that “Cutler calls himself an ‘independent,’ even claims to have once

been a Republican. But a lifetime of working for big name Democrats, at a Democratic law firm and supporting and

contributing to Democratic causes and candidates – including Barack Obama – shows otherwise.” JSMF ¶¶129,

138-145. This comment takes on additional meaning when it is apparent that its authors were Democrats.


20

Any as-applied claim to an attribution requirement must take into account the “character

or strength of the author's interest in anonymity.” McIntyre, 514 U.S. at 351. Dennis Bailey, as a

member of the control group of both Rosa Scarcelli’s and Shawn Moody’s gubernatorial

campaigns, and as a paid consultant thereto, necessarily gives up his interest in anonymity in

regard to any communication he disseminates attacking other candidates for the same public

office. See Brown v Socialist Workers '74 Campaign Committee, 459 US 87, 111-12 (1982)

(O'Connor, J., concurring in part and dissenting in part) (“Once an individual has openly shown

his close ties to the organization by campaigning for it,” the individual’s privacy and anonymity

concerns are reduced and “the governmental concerns are greatest precisely for the actions of

campaign workers that might improperly influence voters.”); State v. Petersilie, 432 S.E.2d 832,

842 (N.C.,1993) (“In the context of a campaign it is necessary for accusers of candidates to

identify themselves, even if they speak the truth, in order for the electorate to be able to assess

the accusers' bias and interest.”); Seegmiller v. KSL, Inc., 626 P.2d 968, 973-74 (Utah,

1981)(“information concerning public officials and public figures is more likely to be relevant in

the decision-making process of self-government, and it may be assumed that one who forsakes

the anonymity of private life and enters the limelight of the public arena is prepared to engage in

a full-blown discussion of public issues with the attendant personal risks. No such assumption is

appropriate with respect to a private figure.”); Buchanan v. Associated Press, 398 F Supp 1196

(1975, DC Dist Col) (paid consultant to a campaign is a public figure for issues relating to that

campaign); See also, Time Inc. v. Hill, 38 US 374, 384 n. 8 (recognizing “the rule that a public

figure … is subject to the often searching beam of publicity and that, in balance with the

legitimate public interest, the law affords his privacy little protection.")


21

For all of the above reasons, the Court should enter summary judgment against Bailey on

his Counts I and IV, regarding his as-applied First Amendment claims.

III. THE ATTRIBUTION REQUIREMENTS OF 21-A M.R.S. § 1014 ARE CONSISTENT WITH THE

EQUAL PROTECTION CLAUSE AS APPLIED TO DENNIS BAILEY_(COUNT III)

The theory for Bailey’s Equal Protection Claim is not clear from the pleadings, but the

Supreme Court has upheld an identical “news story” exemption under an equal protection

challenge. Austin, 494 U.S. at 666-68 overruled in part by Citizens United, 130 S. Ct. 876. The

Eight Circuit has noted that this equal protection holding is still controlling:

In Citizens United, the Supreme Court did not explicitly overrule … the Court's equal

protection holding in Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 110 S.Ct.

1391, 108 L.Ed.2d 652 (1990), overruled in part by Citizens United, 130 S.Ct. at 913.

Because the Supreme Court has instructed courts to wait for it to overrule its own

decisions, see Agostini v. Felton, 521 U.S. 203, 237–38, 117 S.Ct. 1997, 138 L.Ed.2d 391

(1997), the district court did not abuse its discretion in determining Minnesota Citizens is

unlikely to win on the merits of [the equal protection] claim.

Minnesota Citizens Concerned for Life, Inc. v. Swanson, 640 F.3d 304, 323 (8th Cir. 2011)

(Riley, J. concurring), reh'g en banc granted, opinion vacated (July 12, 2011). See also Citizens

United, 130 S. Ct. at 923 (Roberts, J. concurring) (noting that as “a matter of legislative grace …

the law currently grants a favored position to media corporations”). Citizen’s United also

rejected a claim that the law was “underinclusive because it requires disclaimers for broadcast

advertisements but not for print or Internet advertising.” noting “[w]e rejected these arguments in

McConnell, supra, at 230-231, 124 S.Ct. 619. And we now adhere to that decision as it pertains

to the disclosure provision). Citizens United, 130 S. Ct. at 915 (majority opinion).

Because Maine’s law does not unduly burden a fundamental right to speech, NOM I, 649

F.3d at 61 (“The requirements are minimal, calling only for a statement of whether the message

was authorized by a candidate and disclosure of the name and address of the person who made or

financed the communication”), the Court must apply rational basis scrutiny. Such distinctions


22

among media entities are routinely upheld by the courts. In re Grand Jury Proceedings, 810 F.2d

580, 586-87 (6th Cir. 1987) (statutory distinctions between types of media to which a reporter’s

shield law applies does not violate equal protection). Medlock v. Leathers, 311 Ark. 175, 178,

842 S.W.2d 428, 430 (1992) (unequal taxation between different types of media entities does not

violate equal protection).

Furthermore, even if the Court applies the same heightened level of scrutiny as it applies

to the First Amendment claims, the Commission’s interpretation of the news story exemption as

only reaching “periodical publications” is substantially related to the governmental interests

because the periodicity of the publication provides a “barometer for political spin” and aids “the

reader's ability to evaluate the document's message.” NOM I, 649 F.3d at 57. Indeed, Federal

courts have already rejected the position put forth by the Plaintiff that essentially all

communications published on the internet should be subject exempt from campaign finance

laws. See Shays v. FEC, 337 F. Supp. 2d 28, 65 (D.D.C. 2004), aff’d. 414 F.3d 76 (D.C. Cir.

2005).

The Court should therefore enter summary judgment against Bailey on his Count III.

IV. THE COMMISSION’S INTERPRETATION OF AND APPLICATION OF MAINE’S CAMPAIGN

FINANCE LAWS ARE CONSISTENT WITH THE PLAIN LANGUAGE OF THE STATUTE AND

ENTTITLED TO DEFERENCE (COUNT II AND V)

Determining whether Bailey is entitled to the press exemption is a matter of statutory

interpretation. In a statutory challenge to agency action under Maine’s APA, this Court acts as

an intermediate appellate tribunal reviewing an agency action. Me. R. Civ. P. 80-C.; 5 M.R.S.A.

§ 11007. Appellate review is limited to whether the Commission abused its discretion,

committed an error of law, or made findings not supported by substantial evidence on the whole

record. Friends of Lincoln Lakes v. Bd. of Envtl. Prot., 2010 ME 18, ¶¶ 12-13, 989 A.2d 1128,


23

1133; Questions of statutory interpretation are reviewed de novo. Id. The court upholds the plain

meaning of a statute, but when statutory terms are ambiguous, the Court defers to the agency’s

interpretation of a statute that is within its area of expertise unless the interpretation is

unreasonable. Allied Resources v. Dep’t of Public Safety, 2010 ME 64, ¶¶20-21, 999 A.2d 940.

Particular deference is given “when the legislature has expressly imposed upon an agency the

duty to make a statute operative.” Me. Ass’n of Health Plans v. Superintendent of Ins., 2007 ME

69, ¶ 42, 923 A.2d at 929-30.

Maine’s definition of expenditure for purposes of all the Campaign Finance Laws,

including Section 1014,

[d]oes not include: [a]ny news story, commentary or editorial distributed through the

facilities of any broadcasting station, newspaper, magazine or other periodical

publication, unless the facilities are owned or controlled by any political party, political

committee, candidate or candidate's immediate family.

21-A M.R.S. § 1012(3)(B)(1).

In order to qualify for this exception, Bailey would need to make three evidentiary

showings: (1) The Cutler Files was “distributed through the facilities of … [a] periodical

publication”; (2) Those facilities were not “owned or controlled by any … candidate or

candidate’s immediate family”; and (3) The Cutler Files was a “news story, commentary or

editorial.” Bailey did not make any of these showings before the Commission, nor can he on the

undisputed facts in this case. It should be noted that neither of the first two showings can be

made in the context of an anonymous website that does not disclose who owns or controls the

distribution of the exempt “news story, commentary or editorial.” In other words, a press entity

attempting to qualify for this exception cannot do so anonymously.8

8 At the federal level, FEC actually has separate administrative proceedings to determine whether a person or entity

qualifies for the press exemption. [Consider citing to FEC opinions]


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1. The Cutler Files was Not Distributed Through the Facilities of a Periodical Publication

The plain language of the statue applies the attribution and disclaimer provisions to

publicly accessible sites on the internet unless they qualify as “periodical publications,” and there

is substantial evidence in the administrative record to support the Commission’s findings that

“[t]he Cutler Files website did not have any of the indicia of a periodical publication that may be

exempted from the definition of “expenditure” in 21-A M.R.S. §1012(3)(B)(1).”

2. Distribution of the Communication Disseminated through the Cutler Files Website was

“Owned or Controlled” by the Candidate Rosa Scarcelli and/or Her Husband Thomas

Rhoads

Bailey cannot show that the distribution of the Cutler Files was not controlled by a

candidate or her immediate family.9 Under Maine’s Campaign Finance law, the term

“‘Candidate’ means any person who has filed a petition under either sections 335 and 336

[petition for nomination by primary election] or sections 354 and 355 [general election petition]

and has qualified as a candidate by either procedure….” 21-A M.R.S. § 1(5). Under either

procedure each person becomes a “candidate for Governor” as defined by Maine law. Compare

21-A M.R.S. § 335(5)(A) with § 354(5)(B). See also. 21-A M.R.S. §§ 1017 and 1101 (referring

to each as “a candidate for the office of Governor.”). Although the financial reporting

requirements for “a candidate for the office of Governor” may change after losing a primary, see

21-A M.R.S. § 1017(2) (E) and (F), 1017(9), nothing in the law provides that a person ceases to

be a “candidate” within the meaning of the press exemption. The undisputed facts show that the

Rosa for Maine campaign did not officially terminate until December 2010, well after the period

in which the Cutler Files was disseminated.

9 This issue was not reached by the Commission because it concluded that the “periodical publication” criterion had

not been met. If the court determines that the Cutler Files is a “periodical publication” the court should consider

whether a remand to the agency is necessary to determine whether the Cutler Files was “owned or controlled” by

Scarcelli or Rhoads.


25

The undisputed facts in this case show that candidate Scarcelli was sending Bailey emails

stating that “we” need to start blogging all the goods. The undisputed record also shows that the

candidate’s husband, Thom Rhoads worked closely with Bailey on all aspects of the website’s

dissemination, including its content, and the strategy and timing of its release. Therefore, even if

the Cutler Files might otherwise be subject to a press exemption, the level of control of the

candidate Scarcelli and/or her husband Thom Rhoads.

3. The Cutler Files Was Not a “News Story, Commentary or Editorial.”

Even if Bailey could make the first two showings, the Supreme Court has held that

communications similar to the Cutler Files do not qualify as a “news story, commentary or

editorial” when the communications are not published as part of the organization’s “proper press

function” or when the communication has a similarity to the express advocacy of campaign

advertising. So for example, in FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986), the

Court held that a special edition newsletter of a nonprofit pro-life corporation did not qualify as a

proper press function, despite the organization’s regular periodic publication of a newsletter.

The court listed several criteria, or “considerations of form” that indicated that the non-periodic

publication was not a “proper press function”:

It was not published through the facilities of the regular newsletter, but by a staff which

prepared no previous or subsequent newsletters. It was not distributed to the newsletter’s

regular audience, but to a group 20 times the size of that audience, most of whom were

members of the public who had never received the newsletter. No characteristic of the

Edition associated it in any way with the normal MCFL publication. The MCFL

masthead did not appear on the flier and, despite an apparent belated attempt to make it

appear otherwise, the Edition contained no volume and issue number identifying it as one

in a continuing series of issues.

Id. at 250. Even assuming that the blog published by Bailey could meet the first two

requirements of the news story exemption, the Cutler Files could not. The Cutler files was not

distributed to Bailey’s regular audience, it did not contain any characteristic that associated it in


26

any way with any “normal publication” that Bailey produced. It did not contain Saavy Inc.’s or

Bailey’s “masthead,” nor did it identify itself as one in a continuing series of issues. Indeed, it

only appeared during the two months immediately before the gubernatorial election, and it has

not published any content before or since that time. Under the Massachusetts Citizens for Life

criteria, it was not part of Bailey’s proper press function- even assuming Bailey had a proper

press function.

Nor was it a “news story”: it was a negative political advertisement. The Supreme

Court has rejected the idea that a communication dedicated to the electability of a particular

candidate can be characterized as a “news story.” In Citizen’s United, the court found that a self-

styled “documentary film” was the functional equivalent of express advocacy, and therefore the

equivalent of a political “advertisement”:

The movie, in essence, is a feature-length negative advertisement that urges viewers to

vote against Senator Clinton for President. In light of historical footage, interviews with

persons critical of her, and voiceover narration, the film would be understood by most

viewers as an extended criticism of Senator Clinton's character and her fitness for the

office of the Presidency. The narrative may contain more suggestions and arguments than

facts, but there is little doubt that the thesis of the film is that she is unfit for the

Presidency. The movie concentrates on alleged wrongdoing during the Clinton

administration, Senator Clinton's qualifications and fitness for office, and policies the

commentators predict she would pursue if elected President. ….

Citizens United argues that Hillary is just “a documentary film that examines certain

historical events.” Brief for Appellant 35. We disagree. The movie's consistent emphasis

is on the relevance of these events to Senator Clinton's candidacy for President. ….

As the District Court found, there is no reasonable interpretation of Hillary other than as

an appeal to vote against Senator Clinton. Under the standard stated in McConnell and

further elaborated in [Federal Election Comm'n v. Wisconsin Right to Life, Inc., 551 U.S.

449, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007)], the film qualifies as the functional

equivalent of express advocacy.

Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 890, 175 L. Ed. 2d 753 (2010). Just

like the movie described above, the Cutler Files was understood by the Commission and would


27

be understood by most views as an extended criticism of Eliot Cutler’s “character and [his]

fitness for the office of the [Governor].” The Cutler File’s “consistent emphasis” is on the

relevance of the information and historical events to Eliot Cutler’s candidacy for Governor.

For all of the above reasons, the Court should enter judgment against the Plaintiff on

Count II. In addition, the record shows that the Plaintiff was never fined solely for any violation

that he corrected within ten days of receiving notice from the Commission. Therefore, the Court

should enter judgment against the Plaintiff on Count V.

CONCLUSION

For all of the forgoing reasons, this Court should enter summary judgment in favor of the

Commission and Defendant-Intervenor on Counts I, II, III, IV, and V of the Complaint.

Dated: February 8, 2011 /s/ Melissa A. Hewey

Melissa A. Hewey, Bar No. 3587

David M. Kallin, Bar No. 4558

Drummond Woodsum

84 Marginal Way, Suite 600

Portland, ME 04101

207-772-1941


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CERTIFICATE OF SERVICE

I hereby certify that on February 8, 2012, I electronically filed the Motion for Summary

Judgment with Incorporated Memorandum of Law and the Joint Statement of Material Facts

with attachment with the CM/ECF system, which will send notification to all counsel of record.

/s/ Melissa A. Hewey


cutler files federal filing

Documents

senior political

democratic

gubernatorial

ohio elections

publicly accessible

competing

proper press

activities