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Laws and Disorder 

Fair Game

Published May 2, 2012 at 11:37 a.m. | Updated November 7, 2017 at 12:35 p.m.

Fair Game is Seven Days’ weekly political column.

In a few short days, hubbub at the Statehouse will abruptly subside and 180 lawmakers will return home to their districts to campaign for reelection. A few retiring pols will officially enter their post-legislative golden years.

When state lawmakers descended on Montpelier four months ago, much of Vermont was still suffering from the effects of Tropical Storm Irene. Politicians of all stripes said the second half of the 2011-12 session would be about one thing: rebuilding. With that kind of unifying message, it seemed as if the session would be one big — and boring — fix-it fest with a “Kumbaya” soundtrack.

But by the end, it was more like “Crazy Train,” with a backlog of important bills and the Senate going off the rails.

So what did our esteemed governor and legislators — most of whom want you to give them two more years — actually accomplish over the past biennium? A lot. And not a lot. Some of the most contentious bills — a philosophical exemption for childhood vaccines, to name just one — were still unresolved as of press time.

Seems that for everything that got done, something equally important fell by the wayside. Here’s a selective list of bills signed into law in the past two years — the highlights, lowlights and “grow lights” of the 2011-12 session.

• Vermont is on the road to universal health care. First stop: a health care exchange that will force/allow thousands of Vermonters to shop for health care the way we shop for airfare — on Expedia-style search engines. Great. I can’t wait to see what the medical version of a red-eye looks like.

• Vermonters can now recover attorney’s fees if they sue the state for public records and win. Plus, a summer study committee is reviewing more than 250 exemptions to the public-records act — over a three-year period. Wouldn’t want to rush it or anything.

• Skiing and snowboarding are now Vermont’s official winter sport. Better luck next time, curlers!

• Three game birds — quail, pheasant and partridge — were removed from the list of poultry birds subject to slaughter inspection by the state. Remind me to order the duck next time.

• Vermont is officially on record — or at least the legislature is — for calling on Congress to amend the U.S. Constitution to undo the democracy-eroding Citizens United campaign finance ruling. Meanwhile, statewide campaign finance reform went nowhere, meaning Vermont’s officeholders can still gorge themselves at the corporate donation trough.

• After 248 years of confusion, it took an act of the legislature to finally resolve the town line between Shelburne and St. George. Considering that, it’s a minor miracle they can redistrict the entire state every 10 years.

• Vermont now has criminal penalties for human trafficking and a program of services for victims. Meanwhile, the feds are unraveling a prostitution ring that was bringing women from New York City to service workers on Vermont farms.

• Medical-marijuana patients will now have a safe and legal place to obtain their medicine, thanks to a dispensary bill passed last year. People sick with AIDS, cancer and MS were heretofore left to grow it — or buy it on the black market. Meanwhile, legislation to decriminalize possession of two ounces or less of pot went up in smoke.

• Lawmakers could have passed a bill granting Vermont driver’s licenses to migrant farmworkers, many of them here illegally. Instead, they punted to a summer study committee, which will navigate the road to licensure by next January. Sorry, José and Raúl — you’ll just have to keep walking those 20 miles to the doctor’s office.

The Big Bopp-er

He’s been called “the constitutional terror of Terre Haute” and “public enemy No. 1 for fair elections.” He’s the lawyer behind Citizens United, the infamous “corporations are people” case, and he’s spent a 30-year legal career challenging — and overturning — state election laws around the country.

On Monday, James Bopp Jr. appeared in a Vermont courtroom to argue for throwing out what remains of Vermont’s already-weakened campaign finance regulations. A white-haired lawyer from Indiana, he’s representing the conservative Vermont Right to Life Committee in a lawsuit against the state, filed in August 2009, that finally came to a hearing on summary judgment motions. Bopp’s lawsuit seeks to strike down state law so that political committees can raise money without disclosing their donors, and run ads without saying who paid for them.

It’s a complex First Amendment case that state lawyers say could also effectively permit the existence of Vermont-level Super PACs — political committees that can raise and spend unlimited sums to support or oppose candidates, while keeping secret the identities of their funders.

Presiding over Monday’s hearing was U.S. District Judge William K. Sessions III, who greeted Bopp warmly. The two are practically old friends ... or maybe old frenemies.

This case is the third campaign finance lawsuit Bopp has brought against Vermont since 1997 — all before Judge Sessions. It marked the second time he’d squared off against Assistant Attorney General Eve Jacobs-Carnahan, who argued the state’s case at Monday’s hearing.

In the identically named 1997 case of Vermont Right to Life Committee v. Sorrell (that would be Attorney General Bill Sorrell), Bopp persuaded a federal appeals court to declare Vermont’s mass media disclosure rules unconstitutional, prompting the legislature to change the law. His next lawsuit, Randall v. Sorrell, went all the way to the U.S. Supreme Court, which in 2006 struck down Vermont’s strictest-in-the-nation campaign spending limits.

So what does mean ol’ Bopp have against the land of soy milk and honey, anyway? Nothing in particular. Bopp sues pretty much every state that imposes what he believes are “onerous” campaign finance restrictions on groups such as Vermont Right to Life. Bopp says he presently has three dozen campaign finance lawsuits in the courts.

“It’s kind of a shotgun approach,” Jacobs-Carnahan observes. “He puts all these cases out there all around the country and, whenever he likes a decision, he pushes it further.” That might explain why Bopp inadvertently referred to Vermont as Virginia and Maine during Monday’s hearing.

“He has trouble remembering which state he’s in,” Jacobs-Carnahan theorizes.

What’s so onerous about Vermont elections law? Filling out forms, for one thing. Bopp told Sessions that rather than filing regular reports — even during periods when PACs are not raising or spending money — the law should require only “event-driven” reporting when a PAC does something: holds a fundraiser, airs a TV ad or the equivalent. Anything more burdensome has the potential to reduce political participation by average folks, he said.

No matter that Vermont Right to Life treasurer Sharon Toborg said under oath that she spends just five to 15 minutes filling out each of the organization’s reports.

Perhaps more importantly, Bopp wants to eliminate the $2000 contribution limit on PACs such as the Vermont Right to Life Committee — Fund for Independent Political Expenditures (VRLC-FIPE), an offshoot of the main organization that has advocated for pro-life candidates, including the 2010 Republican nominee for governor, Brian Dubie.

The Vermont Right to Life Committee maintains an extensive mailing list of pro-life voters, candidates and activists that it wants to share with VRLC-FIPE to use for political activities. But the mailing list is valued at more than $2000, so sharing it would constitute an illegal contribution. Bopp wants to strike down that $2000 contribution limit.

Jacobs-Carnahan told Sessions that doing so would be “totally contrary” to a century of Vermont campaign finance law.

“The whole purpose of these laws has been driven by the need to ensure the integrity of our electoral system,” she told the judge. “If the public ceases to believe that politicians are not accountable to people but to monied interests, the democratic system will have failed.”

In a midwestern twang, Bopp laid out the evidence against the state — a string of campaign finance case law stretching back to the pre-Watergate era — to show that Vermont’s laws violate First Amendment rights. At one point, a worked-up Bopp was gesticulating so wildly with his arms, he knocked a microphone right off the podium.

“This parade of horribles is completely bunk because they can do all the disclosing the law requires with [event-driven] reports,” Bopp said in response to the state’s warnings.

Sessions interrupted Bopp at one point to note an irony: a section of the Citizens United decision actually upheld disclosure rules by reaffirming the rights of states to require identifying information from campaign donors.

“It’s a fairly progressive ruling in that regard,” the judge said.

Sessions was clearly enjoying jousting with Bopp — a bright legal mind. There was laughter in the courtroom several times and, at one point, Sessions told the loquacious lawyer, “My grandchildren refer to me as Bop. I don’t mean to suggest we’re related in any way.” More laughter.

Watching Monday’s court action from the front row were Toborg, Kathy Scheele, the head of elections at Secretary of State Jim Condos’ office, and Assistant Attorney General Susanne Young, who served as legal counsel to former Republican governor Jim Douglas — who twice vetoed campaign finance reform bills. No other media attended.

Standing outside the courtroom after the three-hour hearing, a more subdued Bopp wouldn’t hazard a guess as to how Sessions will rule in the case. Neither would Jacobs-Carnahan. But both agreed on one thing: No matter who wins, the fight is likely to rage on in federal appeals court.

From there? Who knows. Maybe the conservative U.S. Supremes will take another whack at Vermont’s election laws, and we’ll get Bopped again.

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About The Author

Andy Bromage

Andy Bromage

Andy Bromage was a Seven Days staff writer from 2009-2012, and the news editor from 2012-2013.


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