Campaign finance law: Third time a charm?
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By LOUIS PORTER Vermont Press Bureau - Published: January 3, 2010
Vermonters running for office this year are already raising and spending money, but the rules that try to limit the influence of campaign money on government are murky.
Legislators may – again – pass a bill this year limiting donations from individuals, political action committees and parties. But there will be factors that will complicate that decision.
For one thing, it is an election year, a time when lawmakers have typically stayed away from campaign finance bills. And at least four senators are already running for higher office, as are Lt. Gov. Brian Dubie, who presides over the Senate, and Secretary of State Deborah Markowitz, the state's chief election officer.
Finally, a new lawsuit, brought by some of the plaintiffs and the lawyer who successfully challenged the state's last set of campaign finance laws before the U.S. Supreme Court, will move forward.
The previous lawsuit by Vermont Right to Life and attorney James Bopp, who frequently challenges states' campaign finance laws, resulted in the country's top court tossing out central parts of Vermont's rules governing money in politics, which were passed in 1998.
Since then, under the advice of Attorney General William Sorrel, the state has operated under the laws that preceded the 1998 changes. Twice lawmakers have passed a bill implementing a new set of campaign finance laws, and twice Gov. James Douglas has vetoed the measure.
Lawmakers have tried to set more stringent limits on contributions from any given donor and especially from PACs and parties. Douglas objects to the way the bills would curb giving by parties.
"The proposed party contribution limits extend unfair political protection to incumbents by establishing an obstacle for challengers," Douglas said in April 2008 when he vetoed the proposed law for the second time.
Last year, members of the Senate passed a somewhat modified version of the bill, which is now in the House. Legislators there may take up the provision this legislative session.
That is important because, despite the fact that candidates have so far lived by the pre-1998 laws, exactly what the campaign finance laws in Vermont are now is not entirely clear, some legislators said.
"If you ask five people if there is a campaign finance law you will probably get five different responses," said Sen. John Campbell, D-Windsor, the majority leader. "That tells me we have to address it."
"I think Vermont politics are very clean. You don't find influence peddling as in other places," Campbell said. But "when you don't have those clear-cut guidelines is when you get in trouble. It is important to have clear and concise language that all can follow."
Since the Senate has already voted to approve the bill, S.92, it will be up to the members of the House whether a campaign finance measure will move.
"I believe the Government Operations Committee will take campaign finance up for consideration," said Speaker of the House Shap Smith, D-Morristown.
Senate President Pro Tem Peter Shumlin, D-Windham and a candidate for governor, agreed.
"We are currently making the assumption that the old law goes into effect since the U.S. Supreme Court struck down our good law," he said.
But "I think it is critical that Vermont have clarity around the campaign finance laws," he added. "There is no better lesson in why we need campaign finance reform than to be running for statewide office and be trying to raise money. The sooner we get money out of politics the healthier our democracy will be."
Douglas, one of the few people involved in the discussion who isn't running for re-election or for higher office, said it would be better to have a new campaign finance law passed and signed. But he added that he still has concerns about the current and recent proposals from lawmakers.
"I think it is better to have a campaign finance law that is in the statutes and is enforceable," he said. "I would prefer to have a law, but given the controversy around some of the provisions, I do not think it is a priority given all of the challenges we need to address this session."
"I don't think we have had a problem over the last couple years," he added. Douglas said that as a non-lawyer he does not know if the "revival" doctrine under which Sorrel proposed reinstating the old rules for the last couple of election cycles is legally binding. "I respected it as if it were in effect."
It did get a boost from a court decision in the last election cycle in which a judge supported the idea that the old laws were in effect, according to the attorney general's office.
Another question is when any campaign finance law that might be passed would go into effect. A half-dozen or more candidates for statewide office are already raising and spending money.
"It is unusual to have election bills, particularly related to campaign finance, pass during an election year," said Markowitz. "Candidates and campaigns have already gotten going."
If new limits or disclosure requirements affecting campaigns and political donors were to go into effect in the middle of an election it could be unfair, some worry.
However, the House and Senate have twice passed a bill very similar to the one they may consider this year, so its provisions wouldn't be completely unfamiliar. And there is a need for clarity to be brought to existing campaign finance rules, now a mix of the laws that preceded the 1998 bill and the portions of that measure that were not tossed out.
"It is complicated and we have testified in the Legislature that it would be better if we had a campaign finance bill that was passed and signed into law and we could then use to educate campaigns and contributors," Markowitz said.
Shumlin said: "We should pass campaign finance reform, and it should go into effect on passage."
Another possibility is that the lawmakers could approve such a law but not have it go into effect until after this election cycle.
Meanwhile, the new lawsuit by Vermont Right to Life and Bopp is waiting in the wings. That suit challenges different portions of the state's campaign finance rules – portions that also exist in many other states and in federal rules – around the disclosure requirement for political action committees and individuals.
Those provisions – challenged on free speech grounds – dictate when such committees must identify their donors and how politically active groups and individuals must identify themselves.
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