VT Campaign Finance Law

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(HOST) Last month, the United States Supreme Court struck down Vermont’s Campaign Finance Law. Commentator Cheryl Hanna shares her thoughts on what’s next for Vermont’s political landscape.

(HANNA) It was no surprise that the Supreme Court struck down Vermont’s Campaign Finance Law.

Back in 1976, it had ruled that expenditure limits were unconstitutional as a violation of free speech. In a six to three decision, the justices reaffirmed that states can’t tell candidates what they can spend.

The Court also struck down our contribution limits, which capped donations to the governor at $400, for example – although the Court was far less clear why.

For Justic Breyer, who authored the plurality decision, the law amounted to an incumbent protection plan, making it too difficult for challengers to effectively mount a campaign. Yet, what dollar amount would pass the First Amendment test remains anybody’s guess.

The idea that the First Amendment embodies a dollar amount was absurd to Justices Scalia and Thomas, who argued that all campaign contribution limits are unconstitutional. Justice Kennedy didn’t go that far but questioned whether campaign finance reform had achieved anything positive.

This hodgepodge of reasoning leaves the legislature with little guidance when it returns to the Statehouse after this fall’s elections.

It could reinstate our old law, which is likely constitutional, given that the limits are fairly high; it could try to find that magic constitutional number that’s low but not too low, a strategy that will undoubtedly result in further litigation; or it could simply abolish contribution limits altogether.

We may yet be testing that third option this campaign season. Even though the Secretary of State has said that the pre-1997 law is in effect, it’s questionable whether such a position would hold up in court.

For now, most candidates have agreed not to accept more than $2,000 from any individual. But if some of the statewide races really heat up, all bets could be off.

What the legislature was really trying to get at by passing such a restrictive law was reducing the appearance that money buys access to government. No one claims that Vermont is corrupt; but, rather, there’s the sense that average Vermonters can’t affect policy if they aren’t big money contributors.

Unfortunately, it’s not at all clear that setting contribution limits somewhere between four hundred and two thousand dollars for governor, for example, will do much to solve that problem.

Nationally, campaign finance has done very little to keep money out of politics.

Given the Court’s ruling, if the legislature really wants to make government more open, it might think more broadly than just limiting campaign contributions.

For example, it might consider lengthening terms, so candidates aren’t fundraising every two years; or expanding public financing of campaigns; or making it easier for citizens to learn who is giving how much to whom. Maybe more professional staff would reduce reliance on lobbyists, from whom legislators get most of their information. These are among the many ideas worthy of debate.

Balancing free speech rights with the need to keep government honest is no easy task. But Vermont, with its strong democratic traditions, has the best chance of getting it right.

Cheryl Hanna is a professor at Vermont Law School in South Royalton.

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