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Vt. limits on political gifts in limbo

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MONTPELIER – It seems like everything is going Rob Roper's way these days. The 38-year-old chairman of the state's Republican Party is on a roll. Last year, the Vermont GOP won a lawsuit before the U.S. Supreme Court, overturning the state's strictest-in-the-nation campaign finance law.

Then in late May, Republican Gov. James Douglas vetoed the new campaign finance bill to the surprise of many Democratic lawmakers. Roper was one of the most vocal opponents of the bill, which would have placed further limits on donations to candidates running for legislative seats and state offices.

Finally, this week the Democrat-controlled Legislature – including a few Republican lawmakers who voted for the bill the first time around – backed Douglas' veto, sustaining it by a single vote.

Now experts are debating whether Vermont has any contribution limits for candidates, parties or political action committees.

On Thursday, Roper, who has brought a less public but equally intense style to the GOP chairmanship job once occupied by James Barnett, could have been congratulating himself as he sat in party headquarters in the Capitol Plaza Hotel and Conference Center on State Street in Montpelier.

But if he was celebrating, Roper was doing it quietly.

Instead he offered advice to legislators who, starting in January, will be navigating through the legal fog the state now finds itself in as it tries to regulate how much influence money plays in politics. His suggestion? Be smart. Avoid another costly lawsuit and delay, and simply re-approve the campaign finance laws that existed on the books before 1997.

"They could do it in a day," Roper said.



Vermont lawmakers almost certainly have to do something. After the U.S. Supreme Court tossed aside the 1997 campaign finance law, state officials, led by Attorney General William Sorrell who had argued that case for the state, exhumed the limits on contributions to political campaigns that existed before 1997.

They may have breathed life into the statute, but they are also keeping a watchful eye on its heart monitor. Even Sorrell acknowledges that the doctrine of "revival" under which it was rescusitated is a lot harder to defend than a new campaign finance bill.

The corpse may be walking, but it is still dead, said James Bopp, the Terre Haute, Ind., lawyer who won the Supreme Court case for two of the plaintiffs, the Vermont Republican Party and Vermont Right to Life. Under the justices' ruling, the state has no contribution limits on the books, he said. Not on donations to political parties, to political action committees or individual candidates.

That is because the pre-1997 law was repealed to make way for the one torn down by the court. Although the main issue in that case was the constitutionality of spending limits (they were deemed illegitimate), the justices specifically told Vermont lawmakers to go back to square one on setting contribution limits as well, Bopp said.

A final decision may come any day. Federal District Court Judge William Sessions has been considering what final judgment to derive from the Supreme Court ruling and should decide the issue of contribution limits as well, Bopp said.

"I have found no legal support for the proposition that the old limits are somehow revived," Bopp said. "What that means is they have no limits."

If that is true then anyone could donate a spare $200,000 or $1 million to a candidate of their choice, and not be subject to prosecution.

"I don't think they can do anything now, legally" if someone accepts more money than allowed under the pre-1997 law, Bopp said. "The Supreme Court has already ruled."

Sorrell calls that the "Wild West" scenario. He doesn't agree with Bopp.

"There is this doctrine of revival, which has been accepted by courts around the country, and it is consistent with the legal maxim 'the law abhors a vacuum,'" Sorrell said.

But he acknowledges that a new law would be easier to defend than a revived statute.

"Is there likely to be litigation against the pre-1997 law going back into effect? I don't know. I wouldn't be surprised either way," Sorrell said.

Roper said if there is such litigation it won't be from his party. But someone else might challenge that law. Or a candidate might just choose to accept larger donations that were allowed before 1997 and defend themselves if the state tries to prosecute.

Under the most extreme – although unlikely – case it might mean the state has no law regulating campaign spending.

"There are a lot of other pieces to the law that also were caught in the court case," Secretary of State Deborah Markowitz said.

Just what parts of the campaign finance law could be impacted is not clear. Reporting and disclosure requirements could be affected for instance.

Douglas said he wouldn't want someone to bring forward a lawsuit to prevent the state from operating under the pre-1997 rules.

"I would never tell an American citizen they don't have access to the courts of our country, but I would discourage it," he said.



Contribution limits matter because they are one way to deal with the risk that some people, groups or companies with more money will gain too much influence over who runs the government, advocates say.

"It allows the people with money to have a disproportionate influence and disproportionate impact on the process," Markowitz said. "I think Vermonters think we need to do what we can to limit the amount of influence money has in politics."

Paul Burns of the Vermont Public Interest Research Group agreed.

"The more wealthy individuals can give to candidates running for office the less the average individual's voice will be heard. Most Vermonters couldn't imagine giving even a $500 gift to someone running for office, much less thousands of dollars … we would be kidding ourselves to think that in exchange for giving large contributions like that you aren't getting something in return."

But Bopp said the simple fact is that contributions have to be very high to put the integrity of the system at risk.

"There was simply no evidence of corruption or realistic appearance of corruption in contributions under $1,000 in the state of Vermont," Bopp said. "The standard the Supreme Court has adopted is that you can only preclude large contributions that have an inherent risk of quid pro quo corruption," he said. "Most politicians are honorable, their votes are not for sale and unless you are talking about a large amount of money an appreciable number of them are not susceptible to being compromised by a contribution."

Douglas said he has always believed that the timely disclosure of campaign contributions is the best defense.



Douglas' veto of this year's bill came after a deafening silence from his administration on the bill, according to supporters of the legislation.

Sen. Jeanette White, D-Windham, the chair of the Senate Government Operations Committee, said objections were raised by Roper and the Vermont Right to Life Committee.

"(Douglas) never, ever gave us input on the bill," White said.

Rep. Donna Sweaney, D-Windsor, the chair of the House Government Operations Committee, said the veto in late May came as a shock. Lawmakers worked hard to build bipartisan support for the reform bill, she said, and that resulted in Republicans supporting it in committee and the floor.

In addition to receiving testimony and support in committee from the offices of the Vermont Secretary of State and the Vermont Attorney General, Sweaney said the House committee carefully addressed each of the constitutional issues raised last year by the U.S. Supreme Court as they wrote the law.

They even recorded how they came to those decisions to ensure there would be evidence to back up the law if it was challenged in court again, she explained.

"That's why this veto was such a surprise to everyone," Sweaney said.

But the governor said if they didn't know what he thought, they should have.

"I made it very clear to those committees early in the session how I felt about the bill," Douglas said.

He said Roper was in the committee rooms testifying on the bill for much of the time it was discussed.

"The chairman of the Republican Party was quite articulate about his view and it shouldn't surprise people to know I share them," Douglas said.

Douglas said he expressed his own concerns directly when he had his normal early-session meetings with legislative committees. He met with the key house committee on Jan. 24 and with its Senate counterpart a month later, according to his staff.

His administration was also in touch with Republicans on those committees, according to the governor's office.

But if they were aware of Douglas' concerns, many Republicans choose to support the bill anyway when it was passed with substantial margins – including the support of some GOP House members.

Both in committee and on the House floor during the session, Rep. Dennis Devereux, R-Mount Holly, supported the bill. As a member of the Government Operations Committee, Devereux saw the bill's rewrite after leaving the Senate.

"I was mad when the governor vetoed the bill," Devereux. "And I told them that, too."

But the first-term state representative said he voted to sustain the governor's veto last week.

"I wanted to work with these guys," Devereux said. "I didn't want to go against the party on this one."

Devereux added that he hopes both parties can come together next year and agree on a "newer and better bill."

All the Republicans in the House voted to sustain Douglas' veto. However, only one of them spoke in support of the governor's position on floor.

Douglas said he can understand why.

"I think at that point in the day people wanted to go home," he said. "People knew how they were going to vote."

The governor vetoed the bill in large part because its limits on contributions to candidates from in-state parties were far too strict. Douglas said under the law, out-of-state groups – whose independent spending on behalf or against a candidate or issue cannot be curtailed by Vermont under the U.S. Supreme Court ruling – would have too much influence, Douglas said.

One of those outside groups, the Republican Governor's Association, has been a long-running supporter of Douglas. The RGA raised and spent close to $100,000 – virtually all from outside Vermont – last year in the last few days before the election.

Douglas was also the target of similar groups opposing his re-election – for instance Dean's Democracy for America – although the amounts spent appear to be smaller.

Roper said that one reason it is better to have that money go through the political parties is that it is easier to track. For instance he has found it difficult to follow the money coming into the state to lobby for some legislative issues like allowing doctors to help patients end their lives, Roper said.

But Ian Carleton, the chairman of the Vermont Democratic Party, said he remains confused about why Douglas vetoed the bill.

"When I looked at the law it looked reasonable. It looked like it took into consideration everything that the U.S. Supreme Court and the lower court said about how best to regulate campaign finance," he said. "It's to Jim Douglas' detriment to have this bill vetoed. It is only going to increase people's cynicism about the relationship of money and politics in Vermont."



So the solution is simple, right? There is still a lawmaking session between now that the next election to hash the issue out.

The problem is that, since this year's legislation was vetoed, it may be too late for any new law to be put on the books before the 2008 election. That is because candidates will likely start raising and spending money between now and the next legislative session.

The answer, Douglas said, is to do what Roper suggests and re-pass the pre-1997 law. Since the state is now operating on a sort of handshake agreement to abide by that law now it won't be mean changing the rules half-way through.

"If they embrace the status quo there would be no change," Douglas said of the campaign limits on the books before 1997. "Generally it was a pretty good law."

It's no surprise that Douglas thinks that law was a good one – he benefited immensely from the fact that it did not contain limits on party contributions to candidates, said Burns.

For instance in 2002 half of Douglas' campaign expenditures came from the party, Burns said.

"He just wants that loophole to remain so that he can potentially benefit in the future," he said.

And shoring up the pre-1997 law is not enough. For instance it has the same contribution limits for someone running for statewide or local office.

"If ($2,000 per election cycle contribution) is the right number for the governor's race it can't possibly be the right number in a House of Representatives race," Burns said, noting that state House races cost on average $2,000. "Allowing a single person to fund half of the candidate's expenses is an unreasonable level of influence."

In any case, lawmakers have other plans, besides just codifying the pre-1997 limits, they said.

Sweaney vowed that when the Legislature comes back in January, campaign finance reform will be at the top of her committee's agenda. And she doesn't expect to make many changes to the law they passed this year.

She said she'll make sure that someone from the governor's office is in the committee room every time they discuss the legislation.

"And he can just go ahead and veto it again if that's what he wants," Sweaney said.

Senate Democrats easily bucked Douglas' veto of the bill this week, but their counterparts in the House came one vote short of the 98 needed. But with a full membership present in the House chamber – three supportive Democrats were absent from the July 11 vote – the measure could be passed with a veto-proof margin.

Sen. Edward Flanagan, D-Chittenden, a staunch campaign finance reform supporter, scoffed at the idea of the Legislature passing the pre-1997 law as some Republicans have suggested.

"If the governor thinks that people are OK with giving politicians thousands of dollars in donations, then he must be really out of touch with Vermonters," he said.

But Bopp warned that if Vermont passes strict contribution limits again and they are made into law, the state – which still owes him legal expenses from the last case –might be in court again.

This time the U.S. Supreme Court justices might toss out such limits altogether.

"I think that whether campaign limits at all will be countenanced by the court I think is an open question," Bopp said. "Accept reasonable contribution limits. If they keep pushing the envelope they are going to end up with no contribution limits at all."