- The Washington Times - Tuesday, August 13, 2002

In 1997, Vermont declared war against representative and responsive government under the banner of campaign finance reform. It dictated how much money or its equivalent candidates should use in campaigning. The fatuous hope was to encourage incumbents to treat political supporters and opponents alike by reducing their political debts incurred in fund raising.

Urgently needed and constitutionally coveted political speech was the law's first casualty. But the U.S. 2nd Circuit Court of Appeals in Landell vs. Sorrell (Aug. 7, 2002) sustained Vermont's outlandishness in an opinion that shocks by its shallowness.

During his 1997 Inaugural address, Vermont Gov. Howard Dean convicted money of responsibility for major political evils. The latter, he lamented, included such cardinal sins as incumbents unbuttoning their ears more for their political supporters and campaign contributors than for their opponents or the politically inert.

Once upon a time in the United States, a healthy earmark of representative government and democratic elections was that a victorious candidate would promote the ideas and policies of his political flock; otherwise, voter choice among candidates would be as meaningless as in Communist China.

Mr. Dean and the Vermont General Assembly, however, held a postmodern vision of how democracy ought to work: namely, within circumscribed campaign budgets to avoid squandering time to explain candidate policy positions in conjunction with fund-raising events.

Political utopia was promised. Brilliant and altruistic statesmen would dominate elected offices. The average disinterested voter would become vastly more involved and sophisticated about candidates because the latter would devote less resources and time raising funds from groups who cared greatly about electoral outcomes. Every person's views would be equally weighty in government offices whether or not they voted, participated in a campaign, supported the victor, championed his opponent or made a campaign contribution as a proxy of the intensity of their political views.

The General Assembly thus passed Act 64, an omnibus campaign finance reform law whose chief infirmity capped political expenditures for state offices. Gubernatorial candidates are confined to $300,000 over a two-year election cycle; candidates for lieutenant governor are limited to $100,000; and, other statewide candidates confront a $45,000 ceiling. State Senate candidates are generally permitted $4,000; and, candidates for state representative are generally limited to $2,000 in political expenses.

These ceilings are staggeringly perverse. The political illiteracy of the average citizen is appalling. What is desperately needed to revitalize our democracy and system of representative government is more, not less, candidate speech and corresponding voter education. And that cannot be done without money. Inexpensive front-porch campaigning like William McKinley in 1896 or communicating views through bullhorns as opposed to the print and electronic media would be exercises in futility in contemporary America.

Greater candidate expenditures, predictably, are generally associated with greater voter interest, understanding, and participation. As Circuit Judge Ralph Winter noted in a dazzling dissent, Eugene McCarthy spent a then-record shattering $12 per vote received in the 1968 New Hampshire presidential primary. His performance crippled President Lyndon Johnson's re-election aspirations, and sparked a nationwide debate and massive public involvement over the Vietnam War.

In 2000, Vermont's political scene was heated by controversial exchanges over civil unions and other divisive issues. Political expenditures soared past previous records with Act 64's ceilings suspended by a district court ruling. Voter turnout leaped 34.5 percent, with citizen participation climbing correspondingly.

Candidate expenditure ceilings thus enfeeble, not reinvigorate, our democratic dispensation. That is why the United States Supreme Court held them unconstitutional in Buckley vs. Valeo (1976), in which Eugene McCarthy was a plaintiff. But the precedent did not daunt the circuit court in Landell.

The 2-to-1 panel majority, speaking through Circuit Judge Chester J. Straub, noted that the Vermont General Assembly had summoned into being numerous "findings" that arguably were not present in Buckley to justify its cannonading of the First Amendment. With neither empirical nor intuitive support, finding (1) proclaims that, "Election campaigns for statewide office and state legislative offices are becoming too expensive. As a result, many Vermonters are financially unable to seek election to public office and candidates for statewide offices are spending inordinate amounts of time raising campaign funds."

But a campaign is "too expensive" only in the eyes of the beholder. No number can be plucked from the heavens as the benchmark for determining "too much" candidate speech. Some voters crave greater exposure to candidate views. Others crave less. Ditto for different views among candidates themselves. Thus, the General Assembly's pronouncement that campaigns in Vermont are too expensive conveys no more than a hollow nonfactual sentiment unworthy of judicial respect.

The same can be said of the Assembly's declaration that "inordinate" time is devoted to fund raising. It set no benchmark for distinguishing between the ordinate and inordinate. And none could be set with credibility since there is no public consensus about the matter.

Judge Straub, nevertheless, insisted that Act 64's expenditure ceilings were indispensable to saving Vermont's democratic process from the corruption of incumbents listening more to the views of their contributors and political supporters than to other citizens of the state. Ceilings, presumably, will slash the number of political debts owed by victorious candidates and thus the incidence of preferential access.

But isn't a primary idea of popular elections that the majority responsible for electing a candidate should have their views and support preferred to those of the losing side? Otherwise, grass-roots democracy would wither because the incentive for citizen participation and backing a winning candidate would evaporate.

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