It would have taken Solomon to decide the court case challenging Vermont's campaign finance reform bill. The most radical effort in the nation, Act 64 capped both contributions and spending for statewide offices. But this summer, a ménage à trois of plaintiffs--the Republican Party, the Vermont Right to Life Committee, and the ACLU--challenged the bill in federal district court in Burlington, Vermont. They argued that the reform violated the First Amendment rights of freedom of speech and assembly and was, thus, more dangerous to democracy than any alleged appearance of government for sale by the politicians to the special interests. Defending the bill were the state of Vermont, the Vermont Public Interest Research Group, and the Boston-based National Voting Rights Institute (NVRI).
Judge William Sessions III found a Solomon-like solution: In a tone of restrained passion, he supported the "attempt by the Vermont legislature to address the real-world problem of excessive money in politics." He then split the bill down the middle and, as Governor Howard Dean noted, "gutted it." It was excruciatingly clear from Sessions's 90-page decision in Landell v. Sorrell that he hated doing it. Unlike the biblical babe, the truncated act can live on. While both sides in the legal dispute coo over how beautiful it still is, they look to the Supreme Court to either kill it off completely or sew back on the amputated parts.
Sessions's August decision upheld contribution caps, a constraint the Supreme Court has repeatedly approved. Vermont limits are by far the lowest in the nation: $400 for statewide candidates, $300 for senate or county office candidates, and $200 for house candidates. The judge, however, rejected as unconstitutional the bill's crucial but unprecedented spending limit of $300,000 for the gubernatorial race, with a 15 percent penalty for incumbents. The court also threw out a provision barring candidates from raising more than 25 percent of funds from out-of-state sources. While upholding the $2,000 cap on donations from individuals or groups to parties, Sessions found that the same cap on contributions from parties to candidates "while not per se unconstitutional is unconstitutionally low."
In his decision, Sessions added that "[i]n 1998, the Vermont Democratic Party received over $52,000 amounting to 66 percent of its revenue from just 43 contributors. The Vermont Republican Party received over $300,000, more than 46 percent of its revenue from 39 donors." You could almost hear Sessions's teeth crunching as he bit the bullet and wrote: "Today, this Court has upheld the Act to the furthest extent that the First Amendment will allow." (The full decision is posted at www.vtb.uscourts.gov/cfrfinal.pdf.)
he Vermont case came on the heels of the Supreme Court's January decision in Nixon v. Shrink, which appeared to open the door for a reappraisal of its 1976 decision in Buckley v. Valeo. "In Shrink," as Sessions wrote, "four Justices opined that neither Buckley nor the First Amendment should be read as an inflexible bar to spending limits." A fifth remained silent on the issue.
Deploring the erosion of public confidence and hinting that the effect of money on politics had grown sufficiently serious to warrant a reinterpretation, the High Court majority declared: "Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions."
The door that Buckley shut and Shrink cracked hinges on the question of whether limitations on the role of money in politics inherently violate the First Amendment rights of freedom of speech and assembly. Justice John Paul Stevens wrote in a concurring opinion, "Money is property; it is not speech."
Corruption on Trial
The Vermont trial put on display two opposing conceptions of money and politics. James Bopp, a kind of circuit-riding conservative lawyer for right-wing causes including the Right to Life lobby, declared that corruption is only "a quid pro quo exchange of money or goods for service." Bopp travels the country litigating against abortion, assisted suicide, and campaign finance reform.
See the Campaign Finance Special Section!
Much of the defense's testimony, on the other hand, tried to show that while few Vermont lawmakers took actual bribes--the only example was a particularly clueless tobacco lobbyist handing out $40 checks on the state house floor to legislators who had just voted in support of his industry--they succumbed to more subtle but no less destructive corruption. Peter Shumlin, president pro tem of the senate, said that his heavy fundraising on behalf of Democrats in the 1996 election cycle "was one of the most distasteful things that I've had to do in public service." Money bought access. "Access," as Shumlin says, "equals influence."
"That is ridiculous," counters Bopp. "People, corporations, and unions find those people who agree with their position and support them because they're already convinced. It's not just an auction block. Looking for people to buy is stupid because they don't stay bought."
The proof, he argues, is that the wealthy are getting the short end of the stick. "Don't tell me that people with money are getting their way," says the Indiana-based litigator. "They are paying the highest tax in history, and the money is going to bureaucrats, people on welfare, in transfer payment from people with money to people without."
ven in nice little Vermont, with a population the size of Washington, D.C., lawmakers receive largesse not only from local businesses and individuals, but from such national corporations and trade organizations as R.J. Reynolds, Philip Morris, Monsanto, Parke-Davis, Anheuser-Busch, the National Association of Chain Drug Stores, and the American Insurance Association. In the 1994 race, Dean received more contributions just from pharmaceutical interests than the Republican challenger David Kelley collected in total.
In 1994 Monsanto, which manufactures bovine growth hormones, lobbied heavily against a bill requiring labeling for the genetically engineered chemical that boosts milk production in cows. Just before the election, the company gave gifts to Republicans--seven legislators, most in key positions--who had strongly opposed the legislation.
That same pattern was repeated last session when the legislature was considering a bill to regulate pharmaceutical costs to bring them in line with far cheaper prices in Canada. Drug companies bought up 17 lobbyists and spent more than $160,000.
Shumlin says, "I heard directly from pharmaceuticals that they would be working actively against Democrats in Vermont. The death of the pharmaceutical bill was a great example of effective lobbying by interests absolutely contrary to public interest. There is no question they influenced legislators in two ways. One, through the threat of not having access to generous campaign contributions, and two... ." He pauses and adds, "There is no two."
What Next for Reform?
On the political front, Vermont reformers hope to patch the bill in ways compatible with Sessions's decision. Likely they will try to set higher, and thus constitutionally acceptable, limits on what parties can contribute to candidates. They may also try to mimic Maine's provision under which the state matches expenditure levels when those not accepting public money outspend those who do.
Legally, both sides look to the Supreme Court. Bopp is confident that the Court will look at Sessions's language and see that "his expressed predisposition to the bill" led him to "bend over backwards" to endorse reforms he understood were unconstitutional. John Bonifaz of the NVRI believes that "Sessions's ruling laid the ground for the Supreme Court to undertake a comprehensive re-examination of campaign finance reform."
"The exercise of those freedoms [of speech and association]," Sessions wrote in his conclusion, "by some through large money contributions in our political system threatens to drown out the freedoms of speech and association of so many others--those who cannot make such large contributions. The integrity of our democracy is inextricably bound to the voices of those of lesser means." ¤