by Rob Roper
After a reprieve from the issue following two successful vetoes by governor Jim Douglas in 2007 and 2008, Democrats in Montpelier now see a clear path to passing their vision for reshaping how citizens can participate financially and otherwise in elections.
The new incarnation is S.20, sponsored by Sen. Jennette White (D-Windham). It looks a lot like its dead ancestors, which were written, in large part, by the special interest group VPIRG. What the bill seeks primarily to do is limit a citizen’s right to contribute to the candidate(s) of his or her choice in order to, ostensibly, reduce the role of big money in politics.
However, all this bill would really do is shift the “big money” out of the transparent areas of campaign finance law (all donations to candidates and political parties over $100 must be publicly reported) and into the shadowy realm of outside interest groups and 501c4’s like, not surprisingly, VPIRG.
These organizations do not have to report who their individual donors are, they are not subject to any legally set contributions limits, and they are not responsible or accountable in any way to the voters. Yet, in a world where big money wants to influence elections and significant but transparent donations to parties or candidates have been made illegal, this is where the money will go.
Voters saw in the last election how David Blittersdorf, the wealthy CEO of NRG Systems, funneled an additional $20,000 in support to Peter Shumlin beyond what current campaign finance law allowed him to donate directly to the candidate by making his contribution to Green Mountain Future. This was a 527 nonprofit established for the singular purpose of attacking Shumlin’s opponent, Brian Dubie. We can expect more of this kind of thing if S.20 becomes law.
The major obstacle facing S.20 now that the veto threat is gone is the United States Supreme Court. Vermont’s previous campaign finance law was declared unconstitutional by the U.S. Supreme Court in Randall v. Sorrell. The attorney who won that case, James Bopp, testified repeatedly before the house and senate Government Operations Committees that these new regulations would suffer a similar fate.
In his testimony of 2007 and 2008, Alan Gilbert of the Vermont chapter of the ACLU agreed.
Campaign contribution limits are recognized by the Court as an infringement on the First Amendment rights of citizens. Because the only legitimate, compelling interest the Court recognizes to allow contribution limits is to address “corruption or the appearance of corruption.” The simple desire to limit money in politics does not pass constitutional muster. The bar of proof is very high. In essence, the state must show that, a) there is corruption or the appearance of corruption, then, b) demonstrate how the contribution level set by the state addresses that problem. Legislators are not free to pull numbers out of a hat.
Given the Roberts’ Court’s strongly pro First Amendment track record on campaign finance law so far (see the Citizens United v. FEC and Wisconsin Right to Life v. FEC), odds are it would be sympathetic to striking down S.20, and could perhaps use a challenge to S.20 as the pretense for striking down all campaign contribution limits nationwide.
The senate Government Operations Committee will begin taking testimony on S.20 this week. Members of that committee are:
Senator Jeanette White (D-Windham), Chair
Senator Claire Ayer (D-Addison), Vice Chair
Senator Margaret Flory (R-Rutland), Clerk
Senator Peter Galbraith (D-Windham)
Senator Anthony Pollina (D-Washington)