MONTPELIER — An appeals court ruling this fall on contributions to super PACs may help legislative negotiators resolve differences over stalled campaign finance reforms and have a bill ready for lawmakers to consider in January.
The House and Senate passed differing bills in the last session and were unable to reconcile the differences before lawmakers left town in May. The conferees will resume the discussions today, but one major disagreement may be dropped because of the appeals court’s order.
The House bill seeks to limit donations from individuals to super PACs, an idea opposed in the upper chamber. Opponents of the $5,000 contribution cap passed by the House argued it would inevitably be challenged in court, and they fear another expensive loss for the state.
The U.S. Supreme Court tossed out Vermont’s previous campaign finance law in 2006. That left Vermont taxpayers on the hook for the plaintiff’s $1.6 million in legal fees.
Sen. Jeanette White, a Windham County Democrat and chairwoman of the Committee on Government Operations, said conferees will be briefed on a New York-based case that allowed at least one PAC to accept unlimited contributions from individuals.
The 2nd Circuit Court of Appeals granted an injunction to New York Progress and Protection PAC, which challenged New York’s $150,000 cap on individual contributions. The group was supporting a conservative candidate in the race for New York City mayor and wanted to accept $200,000 from one person.
The district court had denied the PAC’s request for an injunction against the New York cap before the appeals court overruled that decision. The appeals court did not rule on the underlying issue but cited previous cases in allowing the PAC to accept unlimited contributions.
“Although we express no opinion on the ultimate outcome, the plaintiff here has substantial likelihood of success on the merits. The Supreme Court held in Citizens United v. FEC that the government has no anti-corruption interest in limiting independent expenditures,” the decision states. “It follows that a donor to an independent expenditure committee such as NYPPP is even further removed from political candidates and may not be limited in his ability to contribute to such committees. All federal circuit courts that have addressed this issue have so held.”
White said that case is likely to scuttle the House’s desire for a cap in Vermont.
“They seem to be indicating you can’t limit the contributions to super PACs,” she said. “If it’s upheld, that’s the same one, the same circuit court, that applies to us. So, we probably won’t be able to get that through.”
White said she “would love” to cap contributions to PACs but doesn’t think the state should move forward while the New York case is pending. Rather, the state can seek more stringent reporting requirements, she said.
“We’ll push as far as we can,” White said.
Vermont Law School professor Cheryl Hanna said the decision is “further evidence that courts are going to continue to say that money is political speech.”
“I don’t think the decision should be any surprise,” she said.
States have sought contribution limits on numerous occasions as a way to prevent big donations from undermining democracy. So far, however, courts do “not seem to be buying this argument of appearance of corruption,” Hanna said.
“That’s a really big argument, and the courts are looking for the very narrow argument,” she said. “The Legislature just has to know that if they do pass this law or other laws that do limit contributions that federal courts have not been persuaded by the arguments in other states.”
Still, despite knowing a court challenge is likely, some lawmakers want to push forward with contribution limits, Hanna said.
“I think what happens in Vermont is that there are a lot of Vermont lawmakers that are always trying to test how far we can go with progressive reforms,” she said.
The House bill also allows for unlimited giving from parties to candidates, but eliminated a provision in the Senate version that would have limited to $50,000 the amount that a single individual can donate to political entities during each two-year election cycle.
White said the negotiators will review the positions held by both sides during the last session and determine where agreement can be found.
“I don’t know where over the summer people have come down on those issues,” she said.
The conferees are looking to have a compromise bill ready for lawmakers to consider shortly after they reconvene in January, according to White.
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