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Hanna: McCutcheon Redux

If money really does talk, there were a whole lot of Americans last week who felt their voices weren’t being heard.

That’s because the Supreme Court’s decision in the McCutcheon case opened the door for wealthy individuals to give campaign contributions to as many candidates as they choose without being subject to an aggregate limit.

The decision follows a line of cases that began with Vermont’s own campaign finance case in 2006, and includes the super-PAC Citizen’s United decision. In these cases, a majority of the Court, often by one vote, has steadfastly insisted that government limits on campaign contributions and spending violate the right of free speech and hamper participation in electoral politics.

There are plenty of arguments on both sides of this issue, and I don’t need to rehash those here. Vermonters are all too familiar with the debate over free speech, on one hand, and the need to preserve democracy by limiting the influence of money, on the other.

Indeed, Vermont just passed our own campaign finance reform bill in January, which, very wisely, anticipated the decision in McCutcheon by not allowing our own aggregate limits to go into effect until after the Court’s decision.

One part of the decision that's gotten relatively little media attention but deserves more contemplation is this: a major point in the majority’s opinion was that there may be other ways to reduce concerns about corruption and money in politics than restricting campaign contributions.

First, said Chief Justice John Roberts, Congress could limit money transfers among the candidates and parties. Now, a candidate can transfer money to a party, and the party can transfer money to a more needy candidate, essentially circumventing the aggregate limits. The Chief made clear that new laws segregating money so you couldn’t do this kind of bait and switch would likely pass constitutional muster.

Another thing Congress could do is get serious about disclosure. With modern technology, the Court said, “disclosure offers a particularly effective means of arming the voting public with information.” It was very notable that the Court looked to private organizations to provide that information, similar to what the on-line media outlet, VTDigger, has done by creating a searchable database for state elections. Secretary of state Jim Condos has also done an admirable job of trying to make state databases more user friendly.

Of course, as the dissent correctly reminds us, none of these alternatives are a substitute for curbing the harms caused by lifting the ban on aggregate campaign contributions. Nevertheless, both federal and state lawmakers could do a lot more to tighten up their own rules and provide more timely and assessable information to voters about who is contributing how much to whom. While the Court has now created many barriers to campaign finance reform, the people aren’t entirely without a voice – if only they could get their elected representatives to listen.

The late Cheryl Hanna was a professor at Vermont Law School in Royalton.
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