A House panel wants to cap donations to Super PACs in a risky decision that could make Vermont the first state to limit contributions since the Citizens United U.S. Supreme Court decision in 2010.
A majority of the members of the House Government Operations Committee on Wednesday reached consensus on a $5,000 cap on donations from any single entity to Super PACs.
These political action committees, sometimes known as independent expenditure PACs, can accept unlimited donations and make unlimited expenditures under current law as long as the spending isn’t coordinated with political candidates.
The bold push for a cap flies in the face of a pair of 2010 court decisions, known as Citizens United and SpeechNow, which held that capping donations to groups that spend money independently of candidates is unconstitutional.
Attorney General Bill Sorrell decided in July 2012 that he wouldn’t enforce donation caps to Super PACs, pending further guidance from Vermont courts or the federal 2nd Circuit Court of Appeals.
“Since the Supreme Court’s decision in Citizens United v. Federal Election Commission, a number of federal appellate courts have held that limiting contributions to PACs that make only independent expenditures is not constitutionally permissible,” he wrote in July 2012, in a guide for political candidates.
Since the November elections which featured influential Super PACs, Sorrell has requested that the Legislature clarify its stance on the question, according to Assistant Attorney General Eve Jacobs-Carnahan.
“It’s up to the Legislature to decide whether they think that it’s so important for them to put limits on Super PACs, and treat them the same as other PACs, that they’re willing to take a risk in the uncertain context of the law,” Jacobs-Carnahan said.
The cap will probably provoke a lawsuit, several sources said.
Adam Skaggs, senior counsel for the Brennan Center for Justice, a nonpartisan institute that tracks campaign finance law and litigation, isn’t aware of any other state passing such a cap post-2010.
Rep. Donna Sweaney, D-Windsor, who chairs the House Government Operations Committee, believes that Vermont may be the first, and said that it’s important to at least make a definite policy statement.
“We do wind up, a lot of times, going out to be the first,” Sweaney told VTDigger. “We would like to see reasonable amounts of money, and more people donating, rather than a few people with a lot of money influencing our elections.”
Sweaney isn’t afraid of a lawsuit. “If we were, we wouldn’t get anything done. We wouldn’t have civil unions or civil marriage.”
Earlier she told her committee there would “probably” be a legal challenge to the “groundbreaking” measure. But she added: “We’ve done a lot of firsts in Vermont. I’m wondering if this isn’t the time to take this step right off the diving board, and say, OK, we’ll take it to the Supreme Court if we have to.”
“But this is the way a state can protect itself from horrendous amounts of money,” she told her committee members.
Sweaney isn’t afraid of an expensive lawsuit. “If we were, we wouldn’t get anything done,” she said. “We wouldn’t have civil unions or civil marriage.”
If the state lost a suit challenging the provision, they would have to pay the plaintiff’s attorneys fees and other litigation costs. When the U.S. Supreme Court struck down Vermont’s law in 2006, the state paid out $1.6 million in court costs.
The House’s draft version differs importantly from legislation approved by the Senate last month. The Senate opted to restrict money to Super PACs only if federal courts rule favorably in the Vermont Right to Life Committee, Inc. v. Sorrell case, now under appeal in the 2nd Circuit.
But Senate Government Operations chair Sen. Jeanette White, D-Windham, said she backs an unconditional cap, and her committee voted 5-0 to that effect. It was the Senate Appropriations Committee, and later the full Senate that voted to make the cap contingent on court decisions, to avoid risk of costly lawsuits, White said.
Judges in the Right to Life case wouldn’t necessarily rule on the narrow question of the constitutionality of the cap, she said, which could make waiting pointless. Sweaney prefers to pass the cap now, instead of potentially waiting years before a final ruling in the case is issued.
In the June 2012 decision, which favors the state, federal Judge William Sessions addressed the uphill struggle lawmakers and lawyers face defending caps on Super PAC donations. (The case is now under appeal.)
“To date, the full weight of authority lines up against regulating contributions to independent-expenditure-only groups,” he wrote in his opinion. “As such, the State’s burden in justifying contribution limits on independent-expenditure-only groups is considerable.”
Vermont Law School professor Cheryl Hanna is similarly doubtful about the state’s chances in court.
Hanna says the “law of the land,” as defined by the Citizens United, SpeechNow, and several federal appellate court decisions, now makes donations caps on independent expenditure groups off-limits.
“It’s increasingly unlikely that the U.S. Supreme Court, even though it hasn’t directly addressed this particular issue, would uphold contribution limits to PACs that make independent expenditures,” Hanna told VTDigger.
Hanna clarified that even with this cap, corporations and unions, among other associations, could still make unlimited independent expenditures and receive unlimited donations, which by law don’t need to be disclosed, as per the Citizens United decision.
The Securities and Exchange Commission is considering a disclosure requirement for companies that make independent political expenditures, Hanna said.
Harvard Law School professor Lawrence Lessig who visited the committee last week said the only way to address political corruption is to place Super PACs on the same level as other PACs, by imposing similar caps. Lessig, sometimes described as a liberal and an activist, also told the committee that the U.S. Supreme Court could probably be won over on the legality of the cap.
“I think the Senate is going to have a lot to say about whether that provision is ultimately in the bill that lands on the governor’s desk,” said Paul Burns, executive director of VPIRG, the nonpartisan advocacy.
Last month, the Senate killed a ban on direct corporate contributions for candidates; a year ago, the Senate called for a constitutional amendment to overturn Citizens United, which permits unfettered corporate spending on independent campaign advertising.
At the heart of the legal dispute over Super PACs is a question about whether genuinely independent political spending, which isn’t coordinated with a candidate, can cause political corruption, or the appearance thereof.
Federal courts have indicated that truly independent expenditures can’t corrupt politicians, leaving states with the tough burden of justifying restrictions on free speech and association rights.
Paul Burns, executive director of VPIRG, the nonpartisan advocacy group, said reconciling the House and Senate versions of the bill could prove difficult. “I think the Senate is going to have a lot to say about whether that provision is ultimately in the bill that lands on the governor’s desk,” he said.
A previous attempt to reform campaign finance was vetoed in 2009 by Gov. Jim Douglas.
