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U.S. Supreme Court to hear arguments Tuesday on campaign finance

MONTPELIER, Vt. --A typically blunt statement by Howard Dean nine years ago about campaign contributions -- "money does buy access and we're kidding ourselves and Vermonters if we deny it" -- is at the heart of a case that comes before the U.S. Supreme Court on Tuesday.

Advocates of campaign spending limits say this case is their best hope in 30 years; opponents believe the justices will use the opportunity to firmly close the door once and for all on any such limits. All agree that the case provides the Roberts Court with a chance to put its imprint on how elections are financed and regulated around the country.

"Justice O'Connor, the swing voter in the recent campaign finance cases, has left the court," said Richard Hasen of Loyola Law School. "The Vermont case could present the new Roberts Court with an opportunity to begin imposing significant restrictions on the ability of the government to limit the role of money in politics."

Dean's statement in 1997 came as the then-governor called upon the Legislature to enact campaign finance reform: Lawmakers delivered by limiting campaign contributions and spending as well as by creating a system of public financing.

Opponents, claiming the law unfairly infringed on free speech rights, filed legal challenges. So far a federal judge and a federal appeals court have endorsed Vermont's effort but most legal analysts say Vermont's odds of prevailing in the Supreme Court are not good.

"The court has been fairly divided on the issue and with the additions of Justices Alito and Roberts, I think the job for Vermont has gotten much harder," said Cheryl Hanna, a Vermont Law School professor.

Even Attorney General William Sorrell, who will argue Vermont's case on Tuesday, concedes he has a tough job. "I don't think there is any question we have a huge challenge ahead," he said Thursday in an interview from Washington as he prepared for the oral arguments.

"What's at stake here, though, is the integrity of our elections and the right of the people to be heard in a democracy," said Sorrell. "Testimony before the Legislature and in the lower court showed that average Vermonters see these vast amounts of money that candidates raise and they believe their voice isn't really heard and that public officials are beholden to large monied interests that fund their campaigns."

While crafting the law in 1997 Vermont lawmakers heard from many of their colleagues that the need for campaign money affected who they listened to and what they did.

"I've got to tell you that I wish I could walk up and down this hall now as president pro tem and tell you that I know with a clear conscience that I'm not making decisions that are based upon that whole lot of money I raised," said then-Sen. Peter Shumlin, a Democrat, in testimony. At the time he was the president pro tem of the state Senate.

"We have candidates who will do anything to raise money," said then-Rep. Marion Milne, a Republican. "What they have to offer is the same commodity as in Washington -- access to the leaders, access to the full attention of those who are supposed to be our models of integrity."

James Bopp Jr., an Indiana lawyer representing the challengers to the law, said the evidence that Vermont has a problem stemming from campaign financing is extremely weak.

"The state would have to prove that Vermont is the most corrupt state in the country because they are trying to justify the lowest contribution limits and the only state with mandatory expenditure limits," said Bopp. "That is just a ridiculous smear."

But Bopp maintains his best argument is simply that the law squashes people's First Amendment rights to free speech.

"This law is so fundamentally incompatible with the First Amendment that says Congress shall make no limit abridging freedom of speech," he said. "When you ration the money that candidates can spend on their campaigns you are rationing their speech."

The 1997 law limits contributions to $400 for statewide offices and lower amounts for legislative offices; it also sets spending limits that range from $300,000 for governor to $45,000 for lower state offices and lesser amounts for legislative seats.

James Barnett, chairman of the Vermont Republican Party, said the limits are woefully inadequate. "It could mean that if you are a candidate for the state House and you have reached your spending limit of $2,000, it would mean you couldn't so much get in your car and drive to your next campaign event," said Barnett. "It is a huge disadvantage to challengers who need exposure to overcome the recognition of incumbents."

Most analysts believe the justices will focus in this case on the constitutionality of spending limits. But Loyola's Hasen believes that the recent change in the composition of the court may prompt the justices to focus instead on the contribution limits.

"If the court strikes down the spending limits that would not be remarkable," he said. "But the more interesting question is how the court deals with the challenge to the Vermont contribution limits. You now have a bloc of justices who may form a new majority and who may want to move the law in a new direction."

In a 1976 ruling -- in Buckley v. Valeo -- the justices endorsed limits on campaign contributions but said the facts of the case did not justify a limit on spending.

Advocates of spending limits say that statement suggests spending limits could be justified. The 2nd U.S. Circuit Court of Appeals cited that as a prime reason in its 2-1 decision upholding Vermont's limits.

"Critically, the Buckley Court did not conclude that the Constitution would always prohibit expenditure limits. ... It simply held that based on the record before it `no governmental interest that has been suggested is sufficient to justify' the federal expenditure limits. Accordingly, after Buckley, there remains the possibility that a legislature could identify a sufficiently strong interest, and develop a supporting record," said the appeals court.

One of the three appeals court judges, Ralph K. Winter, dissented on the question of spending limits, saying that Vermont's law amounts to an incumbent protection act and that contrary to the arguments of its supporters would not empower ordinary citizens.

Winter called the arguments of proponents "gross hyperbole" and said the record justifying Vermont's "massive regulation of political speech is not strong; in fact it is pitifully weak." He said the amounts raised in Vermont races without the limits were so small it is impossible to imagine that contributors would have much of a hold over the legislators.

He also noted that turnout in Vermont's elections has been high and there is no evidence voters have been turned off or feel shut out.

"Those who would censor political speech will always argue that such speech will reduce confidence in government," Winter wrote. "I have no doubt that supporters of the Alien and Sedition Acts made such arguments."

Sorrell says he recognizes the First Amendment issues but hopes to persuade the court that the right is not absolute. "In a case of competing constitutional interest, we deserve the benefit of the doubt to take these steps to enhance the integrity of our elections and to bring more citizens back into campaigns," he said.

Hanna and other legal analysts believe that the confirmation of Justice Samuel Alito to replace Justice Sandra Day O'Connor will have a major impact on the outcome of the Vermont case. In 2003 O'Connor co-wrote the 5-4 opinion that upheld limits on soft money and issue advertising in the 2002 campaign finance law named for its chief Senate sponsors, Sens. John McCain, R-Ariz., and Russ Feingold, D-Wis.

O'Connor split ranks with the court's other conservatives, who complained the ruling undermined free-speech protections.

Hanna said the indications are that Alito is likely to side with the free speech advocates.

"A lot of people will be waiting for this," said Hanna. "This is about the way in which candidates run elections in the future."

A decision is expected in June.

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