This is the first of two reports today on the Vermont spending limits case, to be heard by the Court today:  the other will follow the argument. 

      The law’s defenders will argue their case on the "record" established in the lower court, and they will insist that this fact-finding was painstaking and thorough, exposing the ghastly flaws of unlimited campaign spending.  This record is needed to swat away Buckley v. Valeo (424 U.S. 1), decided in l976, which would otherwise stand imposingly in the way.  The old case will be said to have been decided on a limited record, leaving room for fresh "fact-finding" that supports, in these times, more regulatory authority for the states.  Whether the Justices will be impressed with the sort of "fact" offered by the law’s supporters is the question of the day. 

      In this record, we find a fair amount of sheer opinion, most but not all of it by legislators disillusioned with their own behavior.  There are others unhappy with the politics of the state: "a third-generation farmer" is among them, unable to buy the sort of influence that, he is certain, corporations have.  Randell v. Sorrell (Brief of Respondents/Cross Petitioners William H. Sorrell et al) at 3.  But legislators seem the most put out by corruption and big money politics, Vermont-style. 

      Vermont’s counsel refer to the evidence of general rottenness as "exhaustive," id. at 34, and the legislators who supplied much of this evidence offer what is heralded as "revealing testimony," id. at 18, such as the Senate President’s "confession"  that "special interests obtain access" with campaign funds:  "I guarantee you it happens."  Id.  Other officials were "equally frank":

Not everybody in my district do I have lunch with or…return a call from the floor of the senate before a vote…or meet with on a Saturday morning…[or] spend half of my son’s soccer game talking to about their business.  There is definitely levels of access to elected officials.

Id. at 35.  Legislators, now clear about what has happened to them, can tell a chilling yarn about the number of "times I’m walking down this hall and someone grabs me and says, could you meet with so and so, and I know that preferably the answer would be no, I have other work to do, but I also have to think about [elections]…."  Id. at 23.  It is not clear what this other work is, or why it is more pressing than whatever "so and so" had to say, or even why an elected representative should not be thinking about elections. 

      This is one question before the Court:  how far does evidence of this kind go?  The Supreme Court has been willing to countenance a fair amount of sworn confessional material—affidavits from legislators in the throes of self-criticism or worse.  This was clear in Nixon (528 U.S. 377 (2000)), and then again, with still greater consequence, in McConnell (540 U.S. 93 (2003)).  In those cases, however, the Court insisted that it was acting comfortably within the fortress of Buckley: in the case heard today, the Court will be faced with accepting this same quality of evidence in support of a major change in the constitutional law.  Justice Breyer seems open to doing just that, in the name of "deferring" to officeholders.  This is a clever move, because it redirects attention from the quality of the evidence ("I guarantee you it happens") to the authority of the source (the elected officials, as experts in their own corrupt conduct).

       How Vermont of all states came to be so glum about its political process is another perplexing feature of this case.  Although the State has shamefacedly—or proudly?—proclaimed "strong proof" of both corruption and its appearance in its politics, things do not seem all that bad.  In one set of assessments, Vermont is ranked as one of the first in the nation in health care, third in the quality of education, and it falls to 49th among states only when the measure is "dangerousness" ("rates for six crime categories…compared to the national average for a given crime").  Overall, by this assessment, it holds third position on the measure of "livability."  

      Governor Dean, who signed this reform bill into law, thought well enough of his legislature, and of what of he had accomplished with its support, that upon leaving office, he told the assembled lawmakers:  "although we had fights about the budget and how much money we were spending, I am proud because what was in your hearts at those times was supporting the people who sent you here."

      Those meetings with "so and so" seem to have caused little harm and—who who knows—perhaps even some good. 

Bob Bauer