Campaign Finance Redux

There may be a deal in the works on campaign finance reform.  Sean Parnell, president of the Center for Competitive Politics, wonders if it might -- like the last such effort -- be overturned in the courts.   And, worse, that it might not be

Vermont political leaders have announced that a bill severely restricting the right of individuals to contribute to the campaigns of candidates whom they support is on the fast track in the legislature.

Before rushing through the bill, the legislature may want to slow down to consider the ramifications of their actions.

Barely 18 months ago, the Supreme Court ruled in Randall v. Sorrell that a 1997 Vermont campaign finance law was unconstitutional.  Besides overturning the law, Vermont was recently forced to pay out $1.4 million in legal fees, adding to however much the state spent on its own resources defending the case.

The unconstitutional 1997 law included contribution limits of $200 per election for state representative races.   The current proposal appears to set contribution limits at $250 per cycle, or $500 per election.

The latest proposal is cleverly designed to address some concerns expressed in Justice Stephen Breyer's plurality opinion overturning the 1997 law.  Notably, the new proposal indexes contribution limits for inflation, raises limits on political parties, and applies the limits per cycle (primary and general) rather than per election.

These changes to the '97 law do not guarantee that the new proposal would easily pass Constitutional muster.   Some Justices could be inclined to revisit the 1976 Supreme Court case Buckley v. Valeo that permitted contribution limits.

Justice Anthony Kennedy, concurring with Breyer's plurality opinion overturning Vermont's law, wrote, "On a routine, operational level the present system requires us to explain why $200 is too restrictive a limit while $1,500 is not.  Our own experience gives us little basis to make these judgments, and certainly no traditional or well-established body of law exists to offer guidance."

But the Court has also said that it has "no scalpel to probe" in regards to discerning the Constitutionality of every contribution limit statute, making a successful challenge to any contribution limit law far from certain but potentially monumental. 

The debate over the contribution limit proposal should not be limited to just discussions of its Constitutionality.   Even if ultimately found Constitutional, the proposal undermines basic First Amendment rights and harms the democratic process.

Governor Jim Douglas correctly pointed out in his veto message last year that contribution limits can protect incumbent officeholders.

Incumbents begin each election with significant advantages in name recognition. They are able to attract press coverage because of their office, and they often receive assistance from their office staff and government-paid constituent mailings. Through constituent favors, they can also add to their support.

To offset these advantages, challengers must spend money. By limiting the ability of challengers to raise and spend money, campaign finance laws lock into place the advantages of incumbency and disproportionately harm challengers.

Research by Rodney Smith of U.S. House and Senate election results confirms what the above logic suggests. Since contribution limits were first enacted at the federal level successful challenger campaigns have plummeted by 50 percent.

Exceedingly low contribution limits can also discourage challengers from even entering a race.   Former Chief Justice Warren Burger wisely opined that opined that the loss of seed money, in the form of early, large contributions would discriminate against many challengers. With contribution limits the unknown challenger is unable to raise money quickly from a small number of dedicated supporters and other contributors are less likely to give to unknowns. The likely result is that many qualified challengers are discouraged from running.

Most importantly, though, stringent contribution limits undermine fundamental First Amendment rights.   Justice Burger again explains, "We do little but engage in word games unless we recognize that people - candidates and contributors - spend money on political activity because they wish to communicate ideas, and their constitutional interest in doing so is precisely the same whether they or someone else utters the words."

Vermonters should be concerned about this attempt to suppress their First Amendment rights while further entrenching the status quo.

   

Sean Parnell

Comments

[Rob Roper]

The ultimate irony here may be that the VT Democrats and VPIRG are teeing up a softball for the Roberts court to knock out of the park -- a case to eliminate all campaign finance laws altogether.

Alan Gilbert of the ACLU (funny how the Vermont media never give much mention the ACLU's opposition to this particular effort) testified before the Senate Gov Ops committee last Friday that a lawsuit could end up doing "more harm than good." The strong implication was, that if they passed the bill, they'd lose in court.

Jim Bopp, the attorney who won Randall v. Sorrell and then won Wisconsin Right to Life v FEC had the same opinion, if more bluntly stated.

The Committee Chairwoman, Jeanette White (D-Windham) however, decided to agree with the Sorrell -- the LOSER of Randal v. Sorrell, who's "defense" of the last law was litterally laughed out of the Supreme Court -- that the bill was defensible.

Now, would any rational thinking person make this bet? Answer: not with her own money. But then, the millions of dollars she's about to thorow away is not Sen. White's money. It's the taxpayers.