With new gubernatorial candidates seeming to announce their candidacy every day, it appears likely that Vermonters are in for a long and expensive election cycle – since despite the fact that most candidates will probably advocate to end the influence of money in politics and overturn Citizen’s United - no candidate has of yet opted for public campaign financing.But given the ongoing litigation over Vermont’s public financing laws, this aversion to pursuing a publicly financed campaign shouldn’t surprise us.
Last Spring, Dean Corren, a former publically financed candidate for Lt. Governor, filed a civil suit in Federal District Court against the State of Vermont alleging the state’s campaign finance laws were unconstitutional. At the heart of his claim was an enforcement action alleging that an email sent out by the Vermont Democratic Party constituted a contribution to his campaign and allegedly violated a law that ostensibly bars publically financed candidates from receiving private contributions.
In response, the State of Vermont has asked the Federal District Court to abstain from deciding the constitutionality of the campaign finance laws. The state argues that with its enforcement action still pending in state court the Federal Court should dismiss the case. On the other hand, attorneys for the candidate argue that deciding constitutional issues is exactly what Federal Courts do and that in light of the now fully active campaign season, it’s critical that the constitutional questions this case raises be answered promptly by the Federal Court.
Ultimately, the case comes down to a simple question: if a candidate pursues public financing can the state burden that candidate’s constitutional rights by prohibiting all additional private contributions to that candidate’s campaign. Ironically, it’s possible that the Citizen’s United and McCutcheon cases decided by the U.S. Supreme Court recently and much maligned as having opened the flood gates to money in politics, will impact Vermont’s publically financed candidates just as much as they do those candidates who pursue private contributions to finance their campaigns.
The outcome of this case is critical to any Vermonter interested in publically financed elections. While the state certainly has an obligation to enforce campaign finance laws, if those laws are unconstitutional or impose disproportionate penalties, the chilling effect on the willingness of any candidate to forgo privately funded campaigns and opt for public financing will be great. In the end, without a resolution of these fundamental issues, the effectiveness of Vermont’s public financing of elections hangs in the balance.
