When is an independent expenditure-only committee, or Super PAC, truly independent of the candidate the Super PAC supports?  Surprisingly few courts in the post-Citizens United world have decided this question.  A recent Vermont Superior Court decision, however, provides a rare example of a court grappling with this issue.

The case involved allegations of coordination between Vermont Attorney General candidate William Sorrell and a Super PAC supporting Sorrell.  After appearing in a joint press conference to endorse Sorrell, former Vermont Governor Howard Dean allegedly consulted with the Super PAC about the media placement of a television advertisement he narrated in support of Sorrell.  Sorrell’s general election opponent alleged that Dean’s actions meant that the Sorrell campaign and the Super PAC had coordinated their activities and that, consequently, the Super PAC was not independent of the candidate.  The Vermont Superior Court rejected this argument.  In doing so, the court emphasized that the opponent had failed to establish under Vermont’s coordination laws that the Sorrell campaign “consented” to Dean’s acting on its behalf or otherwise “controlled” Dean’s actions.  The court also highlighted the absence of evidence that confidential information was obtained by Dean or shared with the Super PAC.

Importantly, the case was decided only after an evidentiary hearing.  The case therefore illustrates why complex fact issues—such as those involving agency and the sharing of confidential information—may pose challenges to defendants seeking to dismiss coordination claims at the pleadings stage.  In any event, although relatively few at present, we anticipate that legal battles like this one over the definition of “coordination” and Super PAC “independence” may well be at the forefront of campaign finance litigation in the coming years.