Where Do We Go from Here
| Jurisdiction | Vermont,United States |
| Citation | Vol. 2006 No. 12 |
| Publication year | 2006 |
Winter 2006 - #12. Where Do We Go From Here
Introduction
In 1997 Vermont sought to rein in the cost of running for office and to make political participation more affordable for candidates and their supporters by enacting "An Act Related to Financing of Election Campaigns, Disclosure Requirements and Limits on Campaign Contributions and Expenditures," better known as Act 64.(fn1) As its title indicated, Act 64 was a comprehensive campaign finance law. It was also bold. It limited the amount of money that individuals, political parties, and political committees could contribute to candidates for statewide or legislative office(fn2) and the amount of money that candidates could spend in their campaigns.(fn3) Moreover, the contribution and expenditure limits applied to candidates whether or not they chose to participate in the public financing system that Act 64 created.(fn4) The expenditure limit was a direct challenge to Buckley v. Valeo, the case on which the United States Supreme Court's campaign-finance jurisprudence has pivoted for three decades.(fn5) Based on Buckley, federal law limits contributions, but not expenditures, in congressional campaigns and it permits candidates to opt out of the public financing system that exists for presidential primaries, thereby freeing them to raise as much money as they can during the primaries.(fn6)
Vermont lost its challenge to Buckley v. Valeo on June 26, 2006, when the United States Supreme Court, in Randall v. Sorrell,(fn7) held that both the contribution limits and the expenditure limits in Act 64 were unconstitutional infringements on the freedom of speech.(fn8) But the Court's decision did not invalidate the entire statute. Prominent among the provisions of Act 64 that survives after Randall is the public financing system that the Act established for elections for governor and lieutenant governor beginning in 2000.(fn9) But no candidate applied for Vermont campaign finance grants during the 2006 election cycle, so the Vermont legislature has opted to use the campaign fund created by Act 64 to cover the administrative costs of running the primaries and the general election, appropriating $474,490 in FY 2006 for that purpose.(fn10) Thus, Vermont's public financing system is effectively moribund, at least for the purpose for which it was designed, namely, to lower the price of admission to politics for ordinary Vermonters, both as candidates and as supporters of candidates.
This need not be so. In contrast with its Vermont counterpart, Maine's public financing system is alive and well. Three of Maine's five candidates for governor in the 2006 general election participated in the public financing system created by the Maine Clean Election Act, as did 309 of the 381 candidates (81 percent) for the Maine General Assembly.(fn11) Each gubernatorial candidate who qualified for public funds in 2006 received a grant of $200,000 for the primary and a grant of $400,000 for the general election.(fn12) This contrast raises the question: Why, despite the bold reformist spirit of Act 64, is Vermont's public financing system barely surviving while its counterpart in Maine thrives? This article aims to answer that question in hopes of reviving discussion about the public financing of elections in Vermont and of breathing new life into the "Vermont Campaign Finance Option."(fn13) Randall v. Sorell may have been a speed bump, or even a closed gate, on the road to a more inclusive democracy in Vermont; it need not be a brick wall though, especially if Vermonters can revive their progressive spirit in support of the public financing of election campaigns.
Act 64: The Key Features
When Act 64, which then-Governor Howard Dean signed into law on June 26, 1997, took effect on November 4, 1998, it promised to change the relationship between money and politics in Vermont dramatically by limiting campaign contributions and expenditures in state elections despite a longstanding federal prohibition against expenditure limits in political campaigns. The principal difference between Act 64, in its original form, and the campaign-finance rules announced in Buckley v. Valeo was that Act 64 limited both the amount of money that an individual, a political committee, or a political party could contribute to a campaign for state office and the amount of money that a candidate could spend to win a state office in Vermont. In contrast, Buckley held that contribution limits were constitutional, but that expenditure limits violated the First Amendment's guarantees of freedom of speech and association. According to the Buckley Court, contribution limits were constitutional because (1) a contributor did not engage in speech when contributing funds to a political campaign, even when those funds facilitated speech by the candidate,(fn14) and (2) the government's interest in preventing "corruption and the appearance of corruption" was sufficient to justify a limit on contributions, as contributions can be "a quid pro quo for improper commitments from the candidate."(fn15) Expenditure limits, however, were unconstitutional because (1) candidates' expenditures were "speech" under the First Amendment and (2) expenditure limits were unnecessary to prevent corruption or the appearance of corruption in political campaigns.(fn16) Thus, by including in Act 64 limits on both contributions to and expenditures by candidates for state offices, the Vermont legislature challenged the rule of Buckley v. Valeo directly and unmistakably.
Act 64 limited contributions to candidates for state representative (and local offices, too) to $200 per individual, partnership, corporation, labor union, or other organization that was not a political party or a PAC "in any two-year election cycle,"(fn17) namely, the twenty-four-month period that begins the day after a general election.(fn18) It also limited, during the same two-year period, contributions to candidates for state senator and county offices ($300),(fn19) and to candidates for governor, lieutenant governor, secretary of state, treasurer, auditor of accounts, and attorney general ($400).(fn20) No more than 25 percent of the contributions that a candidate received during an election cycle could come from contributors who were not Vermont residents or from PACs or political parties that were not organized in Vermont.(fn21) A PAC could not accept a contribution totaling more than $2,000 from an individual, partnership, corporation, labor union, political party, or another PAC during the two-year election cycle.(fn22) Finally, contributors were required to make contributions greater than $50 by check(fn23) and to give their contributions to campaign treasurers directly instead of acting through an intermediary.(fn24)
A more dramatic and controversial feature of Act 64 was the limit it placed on campaign expenditures by candidates, individuals who were not candidates, PACs, and political parties. These limitations flew in the face of the Supreme Court's conclusion, in Buckley, that expenditure limits violate the freedoms of speech and association, respectively. Moreover, the expenditure limits in Act 64 applied not only to candidates who participated in the public financing system that the Act established, but to all candidates for state offices, including those who financed their campaigns from private contributions, and even those who relied exclusively on personal or family funds.(fn25) That arrangement was starkly different from the federal campaign finance law, shaped by Buckley, which lacked expenditure limits for congressional elections and permitted candidates for president who opted out of the public-financing system that exists for presidential elections to raise and spend unlimited sums.(fn26)
Act 64 limited expenditures by candidates for governor to $300,000(fn27) and by candidates for lieutenant governor to $100,000 during an election cycle.(fn28) It limited expenditures by candidates for secretary of state, state treasurer, auditor of accounts, and attorney general to $45,000 during the same time period.(fn29) Candidates for state senator could spend up to $4,000 plus $2,500 for each additional seat in multiseat senate districts, and candidates for county office could spend up to $4,000, during a two-year election cycle.(fn30) In the same time frame, candidates for state representative could spend up to $3,000 in a two-member house district and up to $2,000 in a single-member house district.(fn31) Incumbents were subject to lower expenditure ceilings than challengers to offset incumbents' greater name recognition and access to contributions; incumbent candidates for statewide offices could spend up to 85 percent of the expenditure limits for their respective offices,(fn32) and incumbent candidates for the legislature could spend up to 90 percent of the expenditure limits for their respective offices.(fn33)
Act 64 limited not only expenditures by candidates, but also expenditures by individuals and organizations that spend money on behalf of candidates. The Act treated as a campaign expenditure by the candidate on whose behalf it was made "any expenditure [of more than $50] intended to promote the election of a specific candidate or group of candidates, or the defeat of an opposing candidate or group of candidates, if intentionally facilitated by, solicited by or approved by the candidate or the candidate's political committee."(fn34) In other words, under Act 64, these "related campaign expenditures" counted toward the limits on both the contributions that a candidate could collect and the expenditures that a candidate could make. Two exceptions existed; one covered expenditures of less than $50 and the other applied to expenditures by...
To continue reading
Request your trial