Will we see more money in the ballot box?
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By LOUIS PORTER Vermont Press Bureau - Published: February 7, 2010
MONTPELIER – How political money is raised and spent in Vermont may be more important now than at any time in recent years, with the state expected to host campaigns that are longer, more expensive and more hotly contested than at any other time.
But the rules governing campaign finance in Vermont, already unclear, were made less certain in late January when the U.S. Supreme Court issued a ruling giving corporations and unions more leeway in how they are involved in elections.
The U.S. Supreme Court, which in 2006 tossed out Vermont's toughest-in-the-nation campaign finance limits, recently ruled that corporations and unions could spend their own money with few limits to influence campaigns, as long as they did not coordinate with candidates.
On its surface that decision might not seem to have a direct effect on campaigns for Vermont's state offices, because such expenditures are already allowed in state races.
The decision, however, could affect federal elections, including congressional seats, since they are governed by federal law.
"I don't think the Supreme Court decision has any effect" on Vermont campaigns, Gov. James Douglas said last week. "They can make independent expenditures now."
Douglas did not criticize the court's decision, either.
"I don't support or oppose it," he said. "I believe in the First Amendment."
But the Citizens United case could still change the face of Vermont elections, some political watchers believe. That's because the case may change how corporations approach elections, which could affect how they do so in Vermont, even if their legal status in the Green Mountain State is no different than it was several weeks ago, said Secretary of State Deborah Markowitz.
"I believe that Citizens United marks a radical change in campaign spending in the nation and will trickle down to Vermont," said Markowitz, who is a candidate for governor. "Right now, special interests dominate policy discussions in Washington, D.C. Special interests are deeply involved in policy discussions in the Statehouse. This decision gives them another way to be involved."
Senate President Pro Tem Peter Shumlin, D-Windham, agreed.
"It is going to undermine elections in Vermont by giving Wall Street even more influence," said Shumlin, another Democratic candidate for governor. "This is the biggest blow to democracy in the history of America."
Shumlin said he would like to see a campaign finance law put into place for this year that requires disclosure of who pays for independently funded ads on radio and television He would also like to see nearly immediate disclosure of such spending.
But that kind of requirement may run into trouble, according to James Bopp, the Indiana attorney on the winning side in the case that undid Vermont's 1998 limits on campaign finance contributions and spending. That's because if new campaign finance requirements in the wake of the Citizens United case are simply designed to make it difficult for corporations to spent money – rather than designed only to provide voters with information they need – they may violate free speech rights the justices said they were protecting in the case.
"These measures would have to advance a compelling governmental interest. They cannot just be used to punish corporations for doing this," Bopp said. "A lot of the proposals being floated around are simply punishments."
Incidentally, Bopp said he agrees with the Democrats that the Citizens United case will have an effect in Vermont.
"There is not a direct effect," he said. "But Citizens United was a very comprehensive decision. Indirectly it has a very substantial effect."
Former Democratic state Sen. Matt Dunne, also running for governor, said he would like lawmakers to pass even broader campaign finance laws this year, even though the campaign is under way. Dunne said he would like to require personal finance disclosures from statewide candidates (something Vermont gubernatorial candidates have done by tradition but not rule). He said he also would like limits on corporate independent expenditures for companies that do business in or have connections to Vermont.
Dunne said he believes such limits could be written in a way that would be legally defensible.
"It is in the tradition of Vermont to push the envelope when it is the right thing to do," Dunne said.
The problem, Dunne said, is that there is a growing perception of a revolving door between companies and state government and a growing cynicism about politics and its relationship with money in Vermont.
Dunne singled out Entergy, the company that owns the Vermont Yankee nuclear plant, as a likely source of independent campaign expenditures. The plant is seeking a new operating license for which it needs legislative and regulatory approval.
Larry Smith, a spokesman for the company, said Entergy has been involved in Vermont political campaigns only through its employee-run political action committee. Such PAC donations and activities are governed by campaign finance law not changed by the U.S. Supreme Court ruling in the Citizens United case.
Lt. Gov. Brian Dubie, a Republican candidate for governor, has not weighed in on the campaign finance question. He has been concentrating on talking about jobs and the economy around the state, according to his staff.
In the meantime, current and former legislators – who are also candidates for statewide office in some cases – are considering whether the state should pass a new set of campaign finance laws to go into effect before the fall election.
Add to that an active campaign finance lawsuit by some of the same people – including Bopp — who overturned the state's last set of campaign finance rules to do away with remaining laws around disclosure of campaign donations.
Funnily enough, a little-noticed part of the U.S. Supreme Court's decision in the Citizens United case may help the state defend itself against that lawsuit, said Eve Jacobs-Carnahan, assistant attorney general who is representing Vermont in that case. Motions for summary judgment – the request for the federal judge to decide the case without a full trial – were due by Saturday.
"Even though most of the (Citizens United) case had to do with whether corporations could make expenditures from their treasuries, there was another part of the case that had to do with disclosure of information according to campaign finance rules," she said. "It gives us a wonderful precedent. It totally supports Vermont's efforts to preserve the disclosure requirements."
Even what laws are on the books in Vermont is in doubt. That's because Attorney General William Sorrell said he believes that when the U.S. Supreme Court threw out Vermont's 1998 campaign finance rules in 2006, the old limits returned and remain in force.
Bopp, Sorrell's opponent in that case, does not agree.
"My opinion hasn't changed. There are no contribution limits there," Bopp said. "It is wiped out."
But it is unclear whether lawmakers would pass laws that would go into effect during the middle of a campaign. Twice since the U.S. Supreme Court tossed out the state's campaign finance law, legislators have passed new versions, only to see Douglas veto them. Douglas argued they did too much to limit the involvement of political parties and therefore protect incumbents.
State Sen. Doug Racine, D-Chittenden, voted for a new set of campaign finance laws passed by the Senate last year, and now in the House.
"I still support that bill. I would like to see the House pass it, but that is obviously up to them," Racine said. Depending on its final form, it might or might not be fair to put the measure into effect this year, Racine said.
"I think it is still worth doing whether it affects this year or takes effect next cycle," he said.
Meanwhile, Sen. Susan Bartlett, D-Lamoille, the fifth Democratic candidate for governor, said that perhaps the best campaign finance law would simply be a requirement that all significant donations be quickly and fully disclosed in an electronic database or report; then voters could decide whether the donations influence the candidates.
But Bopp said unless there is a compelling reason – such as interest by a significant number of voters in the information – campaign donation information should not be released. Even then exceptions can be made, Bopp said.
"If it is likely that release of this information will result in the (donors) being harassed, then it is not justified no matter what," he said. In other states, donors to campaigns against gay marriage laws have been targets of what Bopp called "a concerted campaign by the homosexual lobby … to punish their opponents."
The argument over disclosure may be the only one of the ambiguities in the state's campaign finance landscape ironed out this year, as Bopp faces off with the state over its laws.
Meanwhile, all of the legal cases active and resolved, and bills pending or proposed, will add up to a confusing mess with candidates, donors and companies in Vermont unsure what laws they are operating under – and voters unsure who is influencing elections.
louis.porter@timesargus.com
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