Constitutional law scholar Cheryl Hanna urged the House Government Operations committee on Friday to be cautious about instituting new campaign finance reforms.
Hanna, a well-known Vermont Law School professor, advised legislators on how they could best avoid potential lawsuits in light of recent federal court rulings, including a U.S. Supreme Court decision in 2006 that threw out Vermont’s attempts to curb campaign spending.
Rep. Annie Mook, D-Bennington, told Hanna that other witnesses urged the committee to be “risky” and “brave” in instituting substantive oversight of money in politics.
But Hanna replied cautiously: “No matter what you do, I suspect there could be a constitutional challenge to this [legislation]. That’s just the nature of the world these days.”
“It’s very hard to do anything without risking that,” Hanna said. “You can be completely risk-adverse and do nothing.”
But she added the Citizens United decision, which allows corporations and unions to spend unlimited amounts on independent electioneering communications, suggests that stricter and more frequent disclosures of spending and donations to such entities could withstand judicial scrutiny.
Hanna also explained to lawmakers that a federal ban on direct corporate contributions came into effect partly because such donations, the Supreme Court reasoned, gives the strongest appearance of political corruption.
“The Supreme Court has upheld that under the theory that that gives the most appearance of corruption, if you have direct corporate contributions to candidates,” said Hanna.
A ban on corporate donations, a longtime bone of contention for lawmakers like Sen. Peter Galbraith, D-Windham, died in the Senate last week, after much political controversy.
It’s unclear if that provision will be revived by House lawmakers at this point.
Other topics Hanna touched on during her discussion included whether to have legislation take effect only contingent on the outcome of certain campaign finance court cases, and whether limiting lobbying expenditures could pass legal muster.
Currently, legislation as passed by the Senate makes donation caps for independent expenditure only political action committees – sometimes known as Super PACs – contingent on the outcome of the Vermont Right to Life v. Sorrell case, now in litigation.
Even though some committee members were upset about recent political attacks from Vermonters First in the form of mailings, Hanna told them that this constituted political speech, and that courts would likely see suppressing such speech as not fundamentally different than suppressing someone on the street who shouts out political criticism in a public forum.
House Government Operations chair Donna Sweaney expressed interest in requiring more disclosure from such lobbying efforts, which are made during the legislative session, but are not available to the public until the end of the legislative session. The disclosure provision would be part of a separate elections bill her committee is working on.
Hanna dove deep into the nuances of campaign finance law, in which decisions and laws from other states have a direct bearing on how Vermont crafts its laws.
A recent decision from Montana that liberalized regulations on donations means that Vermont stands little chance of reversing the spirit of the Citizens United decision, said Hanna.
Rep. Michele Consejo, D-Sheldon, seemed especially concerned that Super PACs can say what they like about candidates, and candidates are often powerless to counter attacks.
A few guiding principles guide much of the litigation and law surrounding campaign finance, said Hanna. States regulating campaign donations and expenditures must meet the high standard of showing that their regulations prevent actual corruption or its appearance.
That’s because political donations facilitate speech and political association, two fundamental First Amendment rights. To regulate or suppress those rights in any way puts the burden on a state to show that there’s a compelling governmental interest for those regulations.