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Justices question Vermont's restrictive campaign finance rules

WASHINGTON—The Supreme Court appeared skeptical Tuesday that Vermont's extraordinary campaign finance restrictions were a lawful way to cleanse politics, and suggested instead that the tough rules were probably a gag on constitutionally protected speech.

Throughout a spirited one-hour argument, Vermont's Attorney General William H. Sorrell insisted that his state had a compelling interest in curbing the influence of money in politics, and imposing stiff limits on campaign contributions and expenditures was a reasonable way to do that.

But justices across the court's political spectrum weren't buying it. They seemed unconvinced that Vermont's political system suffered from the kind of corruption that would warrant such drastic measures. And they seemed to suspect that Vermont's remedy would be toughest on challengers to strong incumbents, effectively making the political process worse.

"Why are your limits not giving incumbents a tremendous advantage?" Justice Stephen Breyer asked. "When do the limits become so low that they shut off the possibility of a challenge?"

Justice Antonin Scalia jumped at Sorrell's assertion that Vermont's restrictions are justified by corruption, which he said was becoming a "problem."

"To the extent that legislators can be bought for as little as $51?" Scalia asked, somewhat sarcastically. "Very sad."

Chief Justice John Roberts peppered Sorrell with inquiries about how the state had come to identify its problems with campaign donations.

"Have there been any political prosecutions in your state?" Roberts asked. Sorrell said there hadn't been, but there was a widespread public perception of corruption.

"Well, if voters think someone has been bought, they vote them out, right?" Roberts posited. Sorrell said he couldn't show a correlation between the two.

The justices went much easier on James Bopp, the lawyer representing a group of Vermont citizens and interest groups who oppose the law.

Bopp said Vermont's limits were "fundamentally incompatible with any reading of the First Amendment." He said the court has typically embraced the view that the more speech, the better, and Vermont's restrictions were a "direct restraint on candidate speech."

Asked by Justice Anthony Kennedy whether the law could be justified by the proposition that money buys privileged access to politicians, Bopp flatly said no.

"There are less restrictive ways of dealing with that, like restrictions on when you raise money," he said. "The state would have to demonstrate that Vermont is the most corrupt state in the union to justify" its drastic limits, Bopp said.

The case, a major challenge to the court's existing campaign finance doctrines, springs from a 1997 law passed with the encouragement of former Gov. Howard Dean. It sharply limits campaign contributions to as little as $200 for some races, the most restrictive caps in the nation.

It also imposes expenditure limits on candidates, which directly conflicts with a landmark 1976 high court ruling that equated campaign spending with political speech beyond the reach of state regulation.

Prior to the arguments, the expenditure caps seemed like the law's most controversial feature, and likely to draw the most attention from the justices. The arguments made clear, however, that the justices were much more concerned about the limits on political donations, and their effect on the political process.

Sorrell explained that the limits wouldn't hurt candidates' ability to campaign, because Vermont is a small state with inexpensive access to television advertising, one of the primary reasons why elections are so costly.

His pitch was for campaigns to return more to voter interaction, with candidates knocking on doors and attending community meetings rather than holding big fundraisers.

"The issue is whether we address the problems of corruption, and bring more people into the election process," Sorrell said.

But the justices pointed out that the limits didn't account for such things as challengers who might blow their allotted expenditures in a tough primary, only to be left helpless to challenge an incumbent in the general election. They also doubted Sorrell's assertion that state data about average campaign expenditures show that candidates don't need buckets of money to win.

"You're talking about on average, but not in the competitive races," Scalia said, "the contested races. That's where it pinches."

The court is due to decide the case by late June.


(c) 2006, Knight Ridder/Tribune Information Services.

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