Justices Suspicious of Vermont Campaign Finance Law

For most Americans, the tiny state of Vermont evokes images of maple syrup and flannel-clad environmentalists, not rampant corruption.

And perhaps for that reason many Supreme Court justices on Tuesday appeared skeptical about the Green Mountain state's claim that its campaign finance law, the strictest in the land, was necessary to keep its officials clear of corruption.

"How many prosecutions for political corruption have you brought?" Chief Justice John Roberts asked the state's attorney general, William H. Sorrell.

"None," Sorrell conceded moments after declaring that the state law entitled Act 64 would free politicians from making decisions based on their major campaign contributors.

Roberts continued to drill Sorrell on what level of corruption Vermont was dealing with that its legislators felt it necessary to cap so tightly the amount campaigners can raise and spend. The chief justice did not seem surprised that Vermont has no former governors behind bars or a "serious" corruption problem, though he did appear pleased after forcing Sorrell to admit so.

The court has traditionally viewed political campaign funding as a free speech issue, and has said that the only justification for overriding a candidate's First Amendment right to free expression would be the state's interest in minimizing corruption or the appearance of corruption.

Act 64, which was passed in 1997 but has never fully gone into effect, limits the amount of private contributions to a candidate, political committee or party. It also limits expenditures each can make and establishes rules for receiving public financing for campaigns.

Supporters of the act were hoping that the high court would settle once and for all whether the current law of the land, 1976's Buckley v. Valeo, prohibited any and all mandatory campaign spending limits. But the strictness of the law, combined with the political realities of Vermont, seemed to make Act 64 a less-than-perfect test case.

One of the court's more liberal justices, David Souter, seemed particularly troubled by the possibility that Act 64's spending cap would give incumbents a clear advantage over challengers, who often compete in primaries but under the law would receive no extra funds for doing so.

"The challenger has an uphill fight. If he's lucky enough to win and gets to the general election, he's going to be broke," Souter said.

"We certainly don't limit campaign volunteers," Sorrell responded.

"I don’t think you necessarily will get a ringing statement that you can never do spending limits. You don’t need to go that far to get a result in this case," observed Erik Jaffe, who filed a brief opposing the act on behalf of the Center for Competitive Politics.

Jaffe, who said he felt confident the law would be struck down, guessed that the court's prevailing opinion would be that the monetary limits set by the law were unconstitutionally low, and that at least one justice, like Antonin Scalia or Clarence Thomas, would issue a concurring opinion prohibiting mandatory spending limits.

The act was signed by then-Gov. Howard Dean, who has continued to back the law. The Democratic National Committee filed an amicus brief supporting the Vermont attorney general's position.

"We support this law to demonstrate the party is serious about ending the culture of corruption in Washington, especially on the Hill and in this administration," said DNC spokesman Dag Vega. "But we are not suggesting a one-size-fits-all approach to campaign finance reform," he stressed.

Some political observers have questioned how much oversight the judiciary should have in campaign finance laws, which is a relatively new and murky policy arena. States like Vermont argue that they should be allowed to experiment with legislation.

Related to financing rules, voters increasingly believe that special interests' role in politics is a turn-off. In a January FOX News/Opinion Dynamics poll, 65 percent of respondents said they believed elected officials made policy decisions guided by their major contributors.

"We think the creative solutions Vermont put forward would definitely help motivate other states to enact their own laws," Vega said. "That hopefully will drive special interest money out of politics."