Dennis Bailey v. State of Maine Commission On

2012 | Cited 0 times | D. Maine | September 30, 2012



On January 31, 2011, the Maine Commission on Governmental Ethics and Election Practices (the "Commission") fined the Plaintiff, Dennis Bailey, $200 for failing to provide his name and address on "the Cutler Files," his anonymous website advocating the defeat of gubernatorial candidate Eliot Cutler. The Commission found Bailey in violation of 21-A M.R.S.A. § 1014, which requires that election advocacy communications: (1) state the name and address of the person financing the communication; and (2) state whether the communication is authorized by a candidate. The Plaintiff appealed the Commission's action in Cumberland County Superior Court pursuant to Maine Rule of Civil Procedure 80C and 5 M.R.S.A. § 11002. Pursuant to Rule 80C(i), the Plaintiff joined three independent constitutional claims challenging section 1014 as applied to him. He claims that section 1014's attribution and disclaimer requirements: (1) impermissibly burden his right to speak anonymously; (2) discriminate against him as a citizen journalist and internet news source; and (3) are unconstitutional as applied to his de minimis expenditure. Eliot Cutler intervened, removed the case to this Court, and filed for summary judgment. Shortly thereafter, the Plaintiff and the Commission filed cross-motions for summary judgment. These three motions are now before the Court. For the following reasons, the Plaintiff's Motion for Summary Judgment is DENIED and the Defendants' Motions for Summary Judgment are GRANTED.


A.Relevant Provisions of 2010 Maine Election Law

The Plaintiff's suit is based on the application of Maine's 20101 disclosure requirements2 to the Cutler Files website. The disclosure requirements of 21-A M.R.S.A. § 1014(2) apply to expenditures3 not authorized by a candidate,4 financing communications5 "expressly advocating the election or defeat of a clearly identified candidate." 21-A M.R.S.A. 1014(1). If in written form, these communications must contain the words "NOT PAID FOR OR AUTHORIZED BY ANY CANDIDATE" (the disclaimer requirement) and must provide the name and address of the person who made or financed the expenditure for the communication (the attribution requirement). 21-A M.R.S.A. § 1014(2). The disclosure requirements also apply to an expenditure made for a communication that clearly identifies a candidate and that is disseminated closer to an election to influence that election. 21-A M.R.S.A. § 1014(2-A).6

Section 1012 contains a press exemption which excludes from the definition of "expenditure," "any 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.A. § 1012(3)(B)(1).

A person making independent expenditures aggregating in excess of $100 during an election must file a detailed, itemized report with the Commission with a statement made under oath or affirmation stating whether the expenditure was made in cooperation with a candidate. 21-A M.R.S.A. § 1019-B.

Section 1014(4) permits fines of up to $200 for violations of section 1014 within twenty days prior to an election and fines of up to $100 for violations made outside of twenty days prior to an election that are not corrected within 10 days of notice of the violation. 21-A M.R.S.A. § 1014(4).


1. The 2010 Election and the Cutler Files Website

The Plaintiff, Dennis Bailey, is a well-known figure in Maine state politics and the owner and principal of Savvy, Inc., a public relations firm, which he founded in 2000, and which describes itself as "Maine's premier public relations firm offering professional expertise in media and public relations, crisis communications, political campaign management, speechwriting and more." Defendants' Joint Statement of Material Facts ¶ 5 ("DJSMF") (Doc. 70). Bailey owns and controls a personal blog called "SavvySpin" on which he periodically posts news and commentary. The Savvy, Inc. website contains a link to the "SavvySpin" blog.

Bailey has a degree in journalism from the University of Maine and has worked in both journalism and politics. Bailey worked as a reporter for several Maine newspapers and as a freelance reporter for several national publications. In the '90s, Bailey worked as press secretary for Maine U.S. Congressman Tom Andrews; press secretary for Maine gubernatorial candidate Tom Allen; press secretary and political advisor for Angus King during his first campaign for governor; and press secretary, policy advisor, and speech writer for Governor King after the election. In September of 2009, Bailey was hired as a political consultant by the Rosa Scarcelli gubernatorial campaign. The Rosa for Maine campaign paid Bailey a total of $33,000 for his services in the primary election campaign.

In late summer of 2009, when Scarcelli's husband Thomas Rhoads7 learned that Eliot Cutler was going to enter the race for governor, he began downloading negative articles on Cutler from the internet. In October of 2009, Rhoads drafted a document entitled "Top Ten Eliot Cutler Vulnerabilities," which he emailed to Bailey.

Scarcelli lost the Democratic primary on June 8, 2010, but Cutler remained in the race as an independent. Following Scarcelli's loss, Scarcelli and Rhoads tried unsuccessfully to sell Rhoads's research to Democratic gubernatorial candidate Libby Mitchell's campaign for $30,000.8 After Scarcelli's primary defeat, independent gubernatorial candidate Shawn Moody hired Bailey to work for his campaign.9 Moody's campaign paid Bailey $35,000 for his services during the general election.

In July of 2010, Bailey and Rhoads discussed posting their research on Cutler on an anonymous website. Bailey created a mockup of what was to become the Cutler Files website, which included content written by Rhoads and Bailey. Bailey e-mailed the Cutler Files mockup to Rhoads on July 15, 2010 and spent about three days at the beginning of August creating the Cutler Files website using software on his computer.

On August 4, 2010, Bailey registered a domain name,, and paid the registration fee and the fee for two months of web hosting through Savvy, Inc. The Cutler Files website became publicly accessible on August 30, 2010. It did not include a statement identifying the name of the person who made or financed the website or a statement that the website was not authorized by any candidate.

On September 9 or 10, 2010, the following statement appeared on the bottom of the Cutler Files home page:

Who we are: We are a group of researchers, writers and journalists who are frustrated that Maine's mainstream media is either unwilling or incapable of adequately investigating the backgrounds of candidates for higher office. We are not authorized by or affiliated with any candidate or political party, and we have not been compensated in any way for our effort.

DJSMF ¶ 135. The statement included contact information for Waterville, Maine attorney Daniel Billings. The disclaimer "NOT PAID FOR OR AUTHORIZED BY ANY CANDIDATE" also appeared at this time on the bottom of the home page and on several other pages of the site.

The parties dispute how frequently Bailey added content to the website or otherwise changed the site. However, the parties agree that the content was complete as of September 29, 2010, when the Cutler Files website consisted of the home page and nine additional pages on different topics related to Cutler. On the home page of the Cutler Files in place as of September 1, 2010, the website stated:

Over the next several weeks, THE SECRET FILE ON ELIOT CUTLER will reveal the facts about his life, facts you'll find nowhere else, to help voters see the full picture of the man -- his arrogance and ego, his ties to big corporations and foreign countries and how he has spent a lifetime working directly against the interests of Maine and the US. You'll see why Cutler is unfit to be Maine's next governor.10

DJSMF ¶ 129. When the website content was complete, the home page had links to the nine additional topics, which were entitled: "The Bangor Bison," "Cutler in Maine," "Saying 'NO' at OMB," "Cutler in DC," "China's Lobbyist," "The Thornburg Mess," "Eliot's Fantasy," "Reward Offered," and "Cutler in Long Underwear."

The Cutler Files website was discontinued on October 29, 2010, four days before the November 2, 2010 general election for governor. The monthly web hosting fee for November 2010 would have been due on October 29, 2010. Defendants' Joint Statement of Additional Material Facts ("JSAMF") ¶ 202 (Doc. 82). During the two months in which the Cutler Files website was publicly accessible, visitors to the site made 46,989 page requests.

After it became public that Bailey had created the Cutler Files website,11

Bailey received three or four anonymous voicemail messages on his office phone. Bailey reports that his secretary quit after he went public as the Cutler Files creator because "[t]he situation became so uncomfortable and intolerable." Bailey Declaration ¶ 50 (Doc. 73-1). Bailey testified that in the voicemails:

They called me names, jerk, asshole, coward. They said, we hope you fail in everything you do, you should leave the state, you're scum. Those kinds of things . . . there was one where the guy said I'm going to do everything I can to make sure you fail, which I took as a threat. I don't know what that means. You know, what is he going to do?

Bailey Dep. 209:21-25, 210-211, 212:1 (Doc. 82-5). Bailey testified that "they were really mad at me for being anonymous." Bailey Dep. 210:2-4.

2. Proceedings Before the Commission

On September 7, 2010, the Cutler campaign filed a complaint with the Commission requesting an investigation into the Cutler Files website and potential violations of the Maine election laws. At a public meeting on September 9, 2010, the Commission authorized an investigation by Commission staff into the Cutler Files website.

Based on invoices Rhoads and Bailey provided to the Commission, the Commission determined that Bailey had spent $91.38 to create and publish the Cutler Files, less than the $100 threshold for section 1019-B's reporting requirements. This total included the domain name registration cost, two months of web hosting fees, and the price of research materials used for the site's content, including articles downloaded from the internet and documents obtained from the Cumberland County Registry of Deeds.

The Commission found Bailey, whose identity the Commission protected, in violation of 21-A M.R.S.A. §§ 1014(2) and (2-A). The Commission determined that Bailey had designed the website, edited all of the content, and made all modifications to the website, though it found that Rhoads had contributed some content. The Commission found no evidence suggesting that a gubernatorial candidate in the 2010 general election had authorized the website. The Commission also determined that expenditures for the Cutler Files were not excluded from 1014(2) and (2-A) under the press exemption because it found that the Cutler Files website was not a periodical publication. The Commission concluded that the website expressly advocated for Eliot Cutler's defeat up to the gubernatorial election, bringing it under sections 1014(2) and (2-A). The Commission concluded that the website did not have a disclaimer from August 30 to September 9 or 10 or provide attribution from August 30 to October 29, in violation of 1014(2) and (2-A). The Commission finally determined that the $91.38 expended in creating the Cutler Files was not de minimis but did not reach the $100 threshold for section 1019-B's reporting requirements. Bailey was fined $200 for his violations of sections 1014(2) and (2-A).


I. The Constitutional Claims -- Counts I, III and IV

A. Summary Judgment Standard

For purposes of the parties' cross-motions for summary judgment on the Plaintiff's independent constitutional claims brought under 42 U.S.C. § 1983, the Court may consider all the evidence in the record gathered during discovery, and it is not limited to the record before the Commission. Fed. R. Civ. P. 56(c); Baker's Table, Inc. v. City of Portland, 743 A.2d 237, 241 (Me. 2000).

Under Federal Rule of Civil Procedure 56, the Court shall grant summary judgment if the movant shows "that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "In applying this principle, it is important to bear in mind that not every genuine factual conflict necessitates a trial. It is only when a disputed fact has the potential to change the outcome of the suit under the governing law if found favorably to the non-movant that the materiality hurdle is cleared." Martinez v. Colon, 54 F.3d 980, 984 (1st Cir. 1995).

If the moving party will not bear the burden of proof at trial, the moving party can make a prima facie case that it is entitled to summary judgment by either submitting evidence that negates an essential element of the nonmoving party's claim, or demonstrating that the nonmoving party's evidence is insufficient to establish an essential element of its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party may defeat the movant's prima facie entitlement to summary judgment by demonstrating to the Court specific facts in the record overlooked or ignored by the moving party that support the essential elements of the party's claim. Id. at 324; see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

B. Count I: First Amendment Challenge to Application of Section 1014

In Count I, the Plaintiff alleges that the Commission's application of section 1014's attribution requirement is unconstitutional under the First Amendment of the U.S. Constitution,12 Article I, Section 4 of the Maine Constitution,13 and 42 U.S.C. § 198314 because it impermissibly burdens his right to speak anonymously.

Laws like section 1014 require disclosure of information by those engaging in political speech but do not prohibit or otherwise restrict the content of political speech. The seminal case in this area is Buckley v. Valeo, 424 U.S. 1 (1976), wherein the Supreme Court addressed challenges to the Federal Election Campaign Act (FECA) and its contribution and expenditure limits and reporting and disclosure requirements.15 The Supreme Court applied strict scrutiny to FECA's limitations on contributions and expenditures, but it used "exacting scrutiny" to analyze FECA's reporting requirements. Acknowledging that "compelled disclosure has the potential for substantially infringing the exercise of First Amendment rights," the Supreme Court explained that a slightly less rigorous standard was appropriate because "[u]nlike the overall limitations on contributions and expenditures, the disclosure requirements impose no ceiling on campaign-related activities." Id. at 67, 64. Under exacting scrutiny, there must "be a 'relevant correlation' or 'substantial relation' between the governmental interest and the information required to be disclosed." Id. at 64. The Court found that the disclosure requirements directly served three substantial government interests. First, they served to provide information to the electorate; second, they deterred actual corruption and the appearance of corruption by exposing contributions and expenditures to the light of publicity; and third, they served a recordkeeping function allowing officials to gather information to determine whether contribution limits had been met. Id. at 66-68.

Disclosure laws necessarily burden the right to anonymity. As the Supreme Court recognized in Buckley:

It is undoubtedly true that public disclosure of contributions to candidates and political parties will deter some individuals who otherwise might contribute. In some instances, disclosure may even expose contributors to harassment or retaliation. These are not insignificant burdens on individual rights, and they must be weighed carefully against the interests which Congress has sought to promote by this legislation. In this process, we note and agree . . . that disclosure requirements certainly in most applications appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist.

Violations of the recordkeeping and reporting requirements subjected the offender to misdemeanor charges. Id. at 63-64.

1. Maine's election laws have been amended to exempt internet and email activities costing less than $100. P.L. 2011, ch. 689, § 13 (codified as amended at 21-A M.R.S.A. § 1014(6)(C) (Supp. 2011)). Of course, the Court applies the law in effect at the time of the 2010 gubernatorial election.

2. The Court refers to both the attribution and disclaimer requirements found in section 1014 as the "disclosure requirements."

3. An expenditure includes: "A purchase, payment, distribution, loan, advance, deposit or gift of money or anything of value made for the purpose of influencing the nomination or election of any person to political office . . . ." 21-A M.R.S.A. § 1012(3)(A)(1).

4. Section 1011 provides: "This subchapter applies to candidates for all state and county offices and to campaigns for their nomination and election." 21-A M.R.S.A. § 1011. This section was subsequently amended to include candidates for municipal office. P.L. 2009, ch. 366, § 1.

5. The statute applies to communications made "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 . . . ." 21-A M.R.S.A. § 1014(1).

6. Whenever a person makes an expenditure to finance a communication that names or depicts a clearly identified candidate and that is disseminated during the 21 days before a primary election or 35 days before a general election through the media described in subsection 1, the communication must state the name and address of the person who made or financed the communication and a statement that the communication was or was not authorized by the candidate. The disclosure is not required if the communication was not made for the purpose of influencing the candidate's nomination for election or election. 21-A M.R.S.A. § 1014(2-A).

7. In his Response to the Defendants' Joint Statement of Material Facts, the Plaintiff requested that the Court strike as irrelevant over 100 of the Defendants' factual statements mostly linking 2010 Democratic gubernatorial primary candidate Rosa Scarcelli and her husband Thomas Rhoads to the Cutler Files website. The Court agrees that many of the challenged facts are not relevant to the Plaintiff's legal claims. However, the Court has included some facts about Rhoads's research on Eliot Cutler because they are relevant to the Court's analysis. To the extent the Court relies on these facts, the Plaintiff's objections are OVERRULED and his motion to strike is DENIED.

8. Rhoads and Scarcelli asked for $30,000 because of the amount of time that Rhoads spent compiling the articles and because Link Strategies had charged the Scarcelli campaign $30,000 for similar material.

9. On July 6, 2010, Bailey wrote a post critical of Cutler on SavvySpin entitled "Eliot Cutler Called Me a Whore," which responded to a sarcastic email that Cutler had sent Scarcelli after Bailey began to work on the Moody campaign.

10. The last line of this paragraph referring to Cutler's fitness for Governor was deleted from the Cutler Files home page at some point between the version of the home page dated September 1, 2010, Doc. 70-69 at 1, and the version of the homepage dated October 4, 2010, Doc. 70-64 at 2.

11. Bailey publicly revealed himself as the Cutler Files creator shortly after the Commission's December 16, 2010 meeting finding the Cutler Files in violation of section 1014.

12. "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ." U.S. Const. amend. I.

13. "Every citizen may freely speak, write and publish sentiments on any subject, being responsible for the abuse of this liberty; no laws shall be passed regulating or restraining the freedom of the press . . . ." Me Const. art. I, § 4. Section 4 of the Maine Constitution is "no less restrictive than the Federal Constitution." City of Bangor v. Diva's, Inc., 830 A.2d 989, 902 (Me. 2003) (quoting State v. Janisczak, 579 A.2d 736, 740 (Me. 1990)).

14. "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . ." 42 U.S.C. § 1983.

15. In addition to data collection and reporting requirements which included the name and addresses of donors to political committees and candidates, FECA required every individual who made a contribution or expenditure of over $100 in a calendar year to file a statement with the FEC.

16. The statute provided: No person shall write, print, post, or distribute, or cause to be written, printed, posted, or distributed, a notice, placard, dodger, advertisement, sample ballot, or any other form of general publication which is designed to promote the nomination or election or defeat of a candidate, or to promote the adoption or defeat of any issue, or to influence the voters in any election, or make an expenditure for the purpose of financing political communications through newspapers, magazines, outdoor advertising facilities, direct mailings, or other similar types of general public political advertising, or through flyers, handbills, or other nonperiodical printed matter, unless there appears on such form of publication in a conspicuous place or is contained within said statement the name and residence or business address of the chairman, treasurer, or secretary of the organization issuing the same, or the person who issues, makes or is responsible therefor. Id. at 338 n.3.

17. Justice Thomas dissented from Part IV in part because the majority ignored McIntyre's concern for anonymous speech. Id. at 980.

18. The Court takes judicial notice of the results of the November 2, 2010 general election: LePage 37.6%, Cutler 35.9%, Mitchell 18.8%. Bureau of Corporations, Elections & Commissions, Elections Div., General Election Tabulations,

19. "No state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV.

20. "No person shall be . . . denied the equal protection of the laws, nor be denied the enjoyment of that person's civil rights or be discriminated against in the exercise thereof." Maine Const. art. 1, § 6-A. The equal protection clauses of the United States Constitution and the Maine Constitution provide co-extensive protection. Town of Frye Island v. State, 94 A.2d 1065, 1069 (Me. 2008).

21. The Court notes that the press occupies a unique and important role in American society. It "serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve." Mills v. Alabama, 384 U.S. 214, 219 (1966). The Maine press exemption closely tracks the federal exemption, which was enacted to ensure that news broadcasters and publishers would not be discouraged from serving their crucial societal role by the enactment of campaign finance laws. In enacting the federal press exemption, Congress explained that it did not want "to limit or burden in any way the first amendment freedoms of the press" and that it wanted "to assure the unfettered right of the newspapers, TV networks, and other media to cover and comment on political campaigns." H.R. Rep. No. 93-1239, p. 4 (1974). See also Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 667-78 (1990), rev'd, 130 S. Ct. 876 (2010); Fed. Election Comm'n v. Phillips Publ'g, Inc., 517 F. Supp. 1308, 1312 (D.D.C. 1981) (analyzing the federal press exemption). The State's interest in insuring that election coverage and commentary by the press is not constrained is a compelling interest. Based on the Commission's interpretation of the press exemption to include news, editorial, and commentary from the internet equivalents of broadcast stations, newspapers, magazines and periodical publications, discussed infra, the press exemption would seem to have the requisite fit to withstand strict scrutiny.

22. Section 1014 expressly applies to communications contained in "publicly accessible sites on the Internet." 21-A M.R.S.A. § 1014(1).

23. The Court takes judicial notice of the fact that many of the television broadcast networks and newspapers in Maine have online components. The Commission indicated that these facilities fall within the press exemption.

24. "Web sites are not published through broadcast stations, they are not newspapers, and they are not magazines or journals or other periodicals." Plaintiff's Response to Defendants' Motions for Summary Judgment at 9 (Doc. 78).

25. The federal press exemption is essentially identical to section 1012. It provides: The term expenditure does not include . . . any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate . . . . 2 U.S.C.A. § 431(9)(B)(i).

26. The Court disagrees with the Plaintiff that it is inappropriate to focus on the form of the publication. The Plaintiff argues that: "Speech is speech, news is news, and commentary is commentary regardless of form and regardless of whether published on a continuous basis or published only on a website." Plaintiff's Reply at 10 (Doc. 88).

27. At oral argument, the Commission noted that press entities who are entitled to the exemption are not anonymous. They generally have a masthead which identifies the individuals who are responsible for their content. The Court does not consider this factor, however, because the press exemption itself does not contain any requirement that an entity have a masthead or that it honestly disclose its authors, and there is no evidence in the record that those who benefit from the exemption have all met this criteria.

28. As the Commission pointed out at oral argument, even the print media must follow the disclosure requirements when they engage in campaign activity. For example, if they distribute campaign literature as an insert, that material must comply with section 1014. 21-A M.R.S.A. § 1014(3-B). See Reader's Digest Assoc. Inc. v. FEC, 509 F. Supp. 1210, (S.D.N.Y. 1981)(magazine publisher acting in a manner unrelated to its publishing function would not fall within press exemption.)

29. Section 1019-B places a significant reporting burden on persons making expenditures over $100. The Plaintiff argues that because § 1019-B has a $100 threshold, an expenditure under § 1014 under $100 is de minimis. This argument mixes apples and oranges and completely disregards the State's recordkeeping interest.

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