Is Scott Milne violating campaign finance laws by appearing in ads for his company?

The Vermont Democratic Party has called on state media organizations to stop running advertisements for Milne Travel, a business owned by Scott Milne, a Republican candidate for lieutenant governor. 

Milne has recently appeared in television ads for his travel agency. The Democrats allege Milne is spending corporate funds "in service of boosting his name recognition for political gains."

"Advertisements for Mr. Milne’s travel company allow Milne to illegally use corporate funds and skirt around campaign finance laws to boost his name recognition for political gain," party officials said in a statement.

The television ad featuring Milne does not make a reference to his political candidacy. In the advertisement, Milne says he hopes the Covid-19 pandemic will soon subside, and that a "brighter day is on the horizon."

"When you are ready to travel again, we're right here, ready to help, just as we've been since 1975," Milne says.

But the Democratic Party charges that Milne's ad doesn't focus on his business, but his personal story. 

"It's in fact kind of a bio narrative that you would put in a campaign ad, so that's where the concern lies," R. Christopher Di Mezzo, a spokesperson for the party, said in an interview.

The current ad does not highlight Milne's backstory. But in 2016, when he was running for U.S. Senate, Milne also appeared in ads for his company, which mentioned that his parents founded the company in the 1970s.

Is running and appearing in ads for his company while seeking the lieutenant governor's office really an illegal use of corporate funds, as the Democrats claim?

The Democratic Party pointed to federal and state campaign finance laws to back up their claim. 

State law defines an "electioneering communication" as one that clearly refers to a candidate for office, and either supports, or opposes that candidate. Federal law has a similar definition: candidates and corporations must report expenditures that promote the election of candidates. 

But campaign finance experts said that just because Milne appears in ads for his company while running for office at the same time doesn’t mean he is running afoul of the law. 

Brian Porto, a professor at Vermont Law School who specializes in election law, said that after reviewing state statutes, he can’t find "clear evidence of a violation."

"He may be using ‘corporate funds’ from his company, but using your company's funds to promote your company's product -- in this case, travel services -- is perfectly legal," Porto said.

"Admittedly, Mr. Milne appears in the ads, but their purpose is to promote his company, not him," Porto said, adding he didn’t see how the ads "intend to promote [Milne’s] candidacy."

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"If the viewer didn't already know that Milne was a candidate, she certainly wouldn't learn from the ad that he was a candidate," he said. 

Porto noted that the advertisements could "boost his general name recognition" and suggested that an "ethical compromise" would be for Milne to not appear in them until after the election. 

The Vermont Secretary of State’s Office referred to state elections statutes and declined to comment.
 
Burlington attorney and longtime Progressive John Franco, who has represented Vermont political candidates in campaign finance cases, called the Democrats' claim that the ads were an illegal use of corporate money "BS."

Franco said that he doesn't doubt that Milne might be trying to use the ads for a political advantage. But that doesn't mean he’s violating the law.  

"I have no doubt that that's what's going on. But is it a campaign finance violation? No," Franco said. "This complaint by the Democrats doesn't even meet the straight face test. There's nothing about this ad that's a campaign ad. It just isn't."

Jared Carter, a constitutional law professor at Vermont Law School, echoed that Milne may be running the ads to increase his name recognition. But he said Milne -- who has advertised his business for years in print, on radio and television -- is still engaging in "protected commercial speech that is not connected to his campaign."

"So to say that Scott can't advertise the business that carries his name because he happens to be running for lieutenant governor, at least from a constitutional perspective, sounds dubious," Carter said. The ads never mention Milne’s campaign, he noted. 

"It's virtually impossible, at least under their interpretation it would seem, for him to be able to advertise his business while also running for lieutenant governor," he added. "So I think on the surface that's how it strikes me, as probably not with a lot of merit."

Milne declined an interview request. In an email he said: "Our ads are perfectly appropriate and will continue running their planned schedules."

Brendan Fischer of the Campaign Legal Center, a campaign finance watchdog group, said questions about whether candidates seeking office can appear in ads for their businesses frequently come up at the federal level. 

Fischer said these cases rarely present a "super clear line" between an advertisement "that does not constitute a federal electioneering in communication and an ad that could be construed as promoting the person's candidacy." He said Milne’s ad occupied this "gray area." 

Fischer said Milne opened the door to questions being raised by mentioning a "pressing public, or political issue," referring to the Covid-19 pandemic. 

"The connection between the content of the ad to sort of pressing political issues, and the naming of the candidate himself could be factors that would be considered," Fischer said. 

DISCLOSURE: Milne Travel is an underwriter with VTDigger. 

The Vermont Democratic Party said "Advertisements for Mr. Milne’s travel company allow Milne to illegally use corporate funds." 

While Milne’s ads may have the effect of boosting his name recognition, there is no support for the VDP’s claim that the ads are illegal.

Democrats could and do argue that Milne is "skirting" the law by appearing in his company’s advertisements while he is seeking public office.
 
But legal experts say that unless the advertisements refer to Milne’s candidacy, they would not violate Vermont campaign finance laws.

We rate the VDP’s statement false.