Governor Douglas Endows Pollina with $28K

Wow (0.00 / 0)

Thanks so much for posting this, even though it gave me a headache.

Yikes.

Musician, Web Designer, Photographer

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by: JulieWaters @ Sun Aug 17, 2008 at 10:43:50 AM UTC

Sorry, I do that to people -- (0.00 / 0)

sláinte,
cl

-- Religion is like sodomy: both can be harmless when practiced between consenting adults but neither should be imposed upon children.

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by: Caoimhin Laochdha @ Sun Aug 17, 2008 at 11:44:23 AM UTC

[ Parent ]

It made me feel sick to my stomach... (0.00 / 0)

The Pollina part did not bother me.  In campaign fundraising $28K is not a lot of money for the 2+ months of campaigning left ahead.  I was surprised by it all because it sounded politically naive and financially unsavvy, and not the way I imagined a gubernatorial campaign.  

What made me feel ill is the thought of Governor Douglas running around with unlimited campaign funds.

While Vermonters face:
* wanton cuts to vital social service nets like public defenders and state's attorneys,
* collapsing bridges,
* people who can barely afford to drive to work,
* oil price gouging threatening the ability of Vermonters to heat their homes this winter,
* and a Vermont Yankee Decommissioning Fund more than half a billion short -- thanks to Jimbo's veto...

...we now get to anticipate the joy of a fall peppered with more swiftboating of the truly dedicated public servants all in the alleged name of democracy.

It reminds me of Connecticut.  No, not the Lieberman issue, but the former Governor John Rowland issue of several years ago.  

For those of you who did not know Governor John Rowland, who was elected as CT's Governor in a slam-dunk election, ended up losing his Governor's seat and going to jail for graft.  

Lots and lots of Republican money got Rowland elected, and then he was caught using his position as Governor to have his vacation home restored as well as receiving a special lease on the public land upon which it sat.  

Now that is another story for another time, except for the fact that while John Rowland was Governor, he was the first Governor in the country to endorse George W. Bush in his bid for the presidency, and Rowland was being considered as his Veep.  Of course that was before the graft indictment and jail time.

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by: Maggie Gundersen @ Sun Aug 17, 2008 at 11:14:00 AM UTC

The potential mischief (4.00 / 1)

The potential is there for all kinds of financial shenanigans. That is the "right" the Governor reserved to his campaign by his unexplained veto. Even if he does not go there, the fact that he kept a trapdoor to himself says volumes.

While the legislature crafted the bill, the administration stood quietly by and made not a peep. Any the administration voiced objections, they could have been worked into a final bill.

The fact that the administration raised no objections to the bill as it was going into its final stages and about to pass, then they let the bill pass without objection, and then the Governor vetoed it says only one thing -- the Governor was going to veto it from the beginning. The number one substantive matter contained in the bill was contribution limits. Mmmmmm.

sláinte,
cl

-- Religion is like sodomy: both can be harmless when practiced between consenting adults but neither should be imposed upon children.

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by: Caoimhin Laochdha @ Sun Aug 17, 2008 at 12:04:11 PM UTC

[ Parent ]

I'm sure that's the legal argument (3.00 / 1)

I'm sure that's the legal argument Pollina would use, but it is by no means universally accepted.  The Attorney General, for example, has a different legal analysis.  Until a court rules on the specific issue of whether the law reverts to the pre-invalidation limits, or if there are in fact no limits, rely on the "no limits" analysis at your own grave risk.

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by: CarbonCopy @ Sun Aug 17, 2008 at 13:46:03 PM UTC

I'm not sure whether Pollina has even considered it (0.00 / 0)

We'll see what he does. I won't be surprised if (and I suspect he will) give the money back. 

The bigger problem is that without any legal limits, which is a direct result of the Governor's election year veto of the law that would have put single source limits in place, the Douglas reelection campaign keeps a trump card to play without any legal jeopardy.

The burden is not on a candidate to prove that the law does not revert, the burden is on the state to show that it does.  The State has no precedent for such a far-flung idea.  The suggestion that someone can be prosecuted for a law that was repealed is, from a legal perspective, outrageous. Attempting to prosecute a candidate for violating a law that was repealed a decade ago goes so far as to subject a prosecutor, or the State, to sanctions.

I am aware that the Attorney General has advocated a novel and different "position" on this issue.  To suggest that he has put forward "legal analyis" supporting his position is stretching it a bit.  

sláinte,
cl

-- Religion is like sodomy: both can be harmless when practiced between consenting adults but neither should be imposed upon children.

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by: Caoimhin Laochdha @ Sun Aug 17, 2008 at 14:01:07 PM UTC

[ Parent ]

Maybe someone could explain (0.00 / 0)

I don't understand the proposition that the Supreme Court ruling essentially erased Vermont campaign finance law.

The ruling pertained specifically to Act 64, which was an ammendment of, and addition to, existing campaign finance law.  If Act 64 had "repealed" previous law, I could see the argument.  While some legislative bills contain a section that declares the old law is repealed upon signing of the new law, Act 64 did not repeal (then) existing campaign finance laws in their entirety: http://www.leg.state.vt.us/doc...

Act 64 did repeal two subsections of campaign finance law:

17 V.S.A. chapter 59, subchapter 5 (relating to voluntary campaign expenditure limitations) is repealed.
17 V.S.A. § 2022 (relating to anonymous political literature) is repealed.

The Supreme Court decison didn't reverse the repeal of those subsections, and the repeal stand - they are not included in the "current" campaign finance law:
http://www.leg.state.vt.us/sta...

The Supreme Court was fairly specific in what was found to be unconsititutional:

In summary, the majority held:

A.) that "the Supreme Court's decision in Buckley v. Valeo, 424 U.S. 1 (1976) does not operate as a per se bar to campaign limits; rather, Buckley permits spending limits that are narrowly tailored to secure clearly identified and appropriately documented compelling government interests...we remand for further findings on an aspect of the narrow tailoring inquiry...[and] we also remand for analysis of whether treating related expenditures as candidate expenditures (§2809(b)) is constitutionally permissible." "On remand, the District Court must determine whether the legislature might have chosen either another type of regulation or higher limits that would still achieve the goals we sanction and yet impinge less on the First Amendment rights at stake."
B.) that "Vermont's attempt to limit contributions from out-of-state sources (§2805(c)) is unconstitutional."
C.) affirmed the District Court's holdings that the following provisions are constitutional: (1) the limit on contributions that candidates may accept from individuals or political action committees; (2) the limit on contributions that political action committees and political parties may accept from any source; (3) the definition of political parties as including state, county and town entities; and (4) the classification of related expenditures as contributions.''
D.) affirmed the District Court's injunction against enforcement of Act 64's limitations pending further proceedings.
E. and "remand for further consideration whether Act 64 regulates the ability of political action committees (PACs) to make independent expenditures (§§2801(4_. 2905(g)), and if so, whether such regulation is constitutional."
F.) and "remand for further findings on whether Act 64's limits on the transfer of money from national political parties to state and local affiliates (§§2801(5), 2805(a)-(b)) imposes impermissible burdens on the operation of political parties.
G.) "vacate the District Court's injunction against enforcement of the limitation on contributions by political parties to candidates...[and] vacate the judgment and remand for further proceedings with respect to the constitutionality of (1) limiting candidate expenditures; (2) treating "related expenditures" of third parties as candidate expenditures; (3) restricting the ability of PACs to make wholly independent expenditures, to the extent the Act's provisions are read to impose such restrictions; and (4) limiting transfers of funds from national to state political party affiliates.

http://www.vermont-elections.org/elections1/campaign_finance_law.html

Now, I don't have a legal background but I do know that, generally speaking, when an amendment of an existing law is overturned by some mechanism, the un-amended version usually stands.  

I could be convinced that I'm alone in imagining this would also be the case in the event that the amendment is found unconstitutional.  But whether it's by the same reasoning or not, the legislature - and everyone involved in their recent attempts at campaign finance reform - seems to think the pre-Act 64 statute is still law, too.

The often referred to S.278 campaign finance reform law of 2007, which was vetoed by Gov. Douglas, was itself based on the pre-Act 64 version of Title 17's election finance regulations.  Like Act 64, S.278 was an ammendment to, and addition to, "current" campaign finance law.

Following the logic that the pre-Act 64 version of Title 17 Chapter 59 is not a valid law, then any subsequent law based on amending it would be invalid, too.  

Or have I got it all wrong?  Am I missing something?  Am I taking too simplistic a look at this?  What's the argument suggesting that all of Chapter 59 was voided by the supreme court?


-M

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by: Mike Eldred @ Sun Aug 17, 2008 at 15:28:28 PM UTC

[ Parent ]

You are correct about the generally accepted interpretation (0.00 / 0)

Mike,

Excellent points.

I certainly run the risk of watering down my points when attempting to combine, in one post, (1) the politics of Mr. Pollina's "oopsy" moment; (2) the legal mechanics of Act 64's affect on 17 V.S.A. § 2805; and (3) one of the likely motives behind Governor Douglas's veto of a bill to which his administration voiced no objection. The legislature almost certainly would have incorporated any administration suggestions into the bill. Given that dynamic, it is pretty clear they wanted the bill dead rather than changed or improved.

Relative to the effect Act 64 had, you've hit the nail on the head of the current issue.

By passing Act 64, the General Assembly with the Governor's signature approval did the following:

1.  The General Assembly took the language from "§ 2805. LIMITATIONS OF CONTRIBUTIONS," which in 1997 read:

(a) No candidate or political committee shall accept contributions totaling more than $1,000.00 from a single source for any election.

and it proceeded to strike the $1,000.00 dollar limit.

It repealed/removed this provision from State law.  After the Governor signed Act 64, the prior $1,000.00 contribution limit ceased to exist. With passage of the effective date, the $1,000.00 contribution limit was history, gone. Kaput.

2.  In place of the stricken language, the legislature adopted new language that read:

A candidate for state representative or local office shall not accept contributions totaling more than $200.00 from a single source, political committee or political party in any two-year general election cycle. A candidate for state senator or county office shall not accept contributions totaling more than $300.00 from a single source, political committee or political party in any two-year general election cycle. A candidate for the office of governor, lieutenant governor, secretary of state, state treasurer, auditor of accounts, or attorney general shall not accept contributions totaling more than $400.00 from a single source, political committee or political party in any two-year general election cycle.

emphasis added. 

3.  Then finally there was the effective date which was set "(3) On the day after the 1998 General Election, . . . Sec. 6 (contribution limitations) . . ."

Act 64 contained no contingencies or reversions. Severability does not apply to the $1,000.00 contribution limit because this is not a case of two sections of a statutory scheme. Rather, the legislature replaced the old $1,000.00 limit with a new law. There is no either/or here (i.e. either $1,000 or $400); instead, there was just the $400.00 limit. Period.

The legislature left no alternative and no contingency to the law it had repealed.  In passing Act 64, there was/is no mechanism for automatically creating a new law (contribution limit) in the wake of a successful constitutional challenge.  There was no mechanism for a reversion to any prior law in the wake of a successful constitutional challenge.  The only option the legislature left for itself was future legislation absent a veto. 

This is not a severability situation where a law has three sections, and one is ruled unconstitutional and the remaining two stay in effect.  This is a case of the one law being specifically stricken by the legislature.  It voted strike and pull the $1,000 statutory limit from the books. Unless the General Assembly votes a new limit into law, there is no applicable law.  No State Agency or State Officer can undo the legislative act of striking a law.  

Laws are not like Lazarus, when they are stricken, they stay buried until a new one is written.

sláinte,
cl

-- Religion is like sodomy: both can be harmless when practiced between consenting adults but neither should be imposed upon children.

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by: Caoimhin Laochdha @ Sun Aug 17, 2008 at 18:16:03 PM UTC

[ Parent ]

regarding severability (0.00 / 0)

Mike,

You correctly observe that: 

I do know that, generally speaking, when an amendment of an existing law is overturned by some mechanism, the un-amended version usually stands.  

Frequently, to insure that this is the case and to make legislative intent clear on the issue, the legislature will include language, which is relatively common, that reads something like this: "if a court of competent jurisdiction finds any section of this amendment to be invalid, the remainder of the law shall remain in effect." Legislatures or Congress will also include language to the effect of "should a court find § [XX] to be invalid, this chapter shall cease to have any effect in its entirety."  So it can go both ways and it can be pre-determined as well.

Sometimes the courts must divine whether the remainder of the statute is valid after a section is found unconstitutional. Generally speaking it will look the how integral the section is to the law and the perceived intent of the legislature among other factors.

As the Vermont Supreme Court observed in the latter situation of whether severability applied:

The unconstitutionality of a part of an Act does not necessarily defeat . . . the validity of its remaining provisions. Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.

Veilleux 131 Vt. 33.

Interestingly, the original McCain-Feingold campaign finance law had a provision that read:

If any provision of the Act or its amendments, or its application to any person or circumstance, is held unconstitutional, the remainder of the Act and its amendments, and its application to any person or circumstance, shall not be affected by the holding [Secs. 401, 401]

see page 21.

Unfortunately, Vermont's (and Mr. Pollina's) situation is not a case of severablity.  This is a case of one law being repealed and the legislature passing a new law in its place. Now that the section containing the $400 limit was tossed by the courts, the legislature needs to put a new limit in there - if it wants one.  Seems to me there is a general consensus that the legislature and the voters want a contribution limit.  The only person who stopped us from having a statutory cap in the 2008 election cycle is one Republican running for reelection. 

sláinte,
cl

-- Religion is like sodomy: both can be harmless when practiced between consenting adults but neither should be imposed upon children.

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by: Caoimhin Laochdha @ Sun Aug 17, 2008 at 18:33:28 PM UTC

[ Parent ]

nicely said - thank you (0.00 / 0)

Unfortunately, Vermont's (and Mr. Pollina's) situation is not a case of severablity.  This is a case of one law being repealed and the legislature passing a new law in its place. Now that the section containing the $400 limit was tossed by the courts, the legislature needs to put a new limit in there - if it wants one.  Seems to me there is a general consensus that the legislature and the voters want a contribution limit.  The only person who stopped us from having a statutory cap in the 2008 election cycle is one Republican running for reelection.

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by: Maggie Gundersen @ Sun Aug 17, 2008 at 19:05:33 PM UTC

[ Parent ]

Dont entirely agree. (0.00 / 0)

We we're also stopped by the GOP House caucus, a misguided independent State Rep, and a DINO named Ron Allard who needs to be defeated this primary.

Nullius perfectus est

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by: odum @ Sun Aug 17, 2008 at 19:21:22 PM UTC

[ Parent ]

I was thinking of the regular session (0.00 / 0)

but you're correct, when it came to the special session there were more obstacles that came with the highten burden a veto override session presents.

As to the original bill that passed both chambers in April, however, only one person's pen killed the bill. 

sláinte,
cl

-- Religion is like sodomy: both can be harmless when practiced between consenting adults but neither should be imposed upon children.

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by: Caoimhin Laochdha @ Sun Aug 17, 2008 at 22:32:07 PM UTC

[ Parent ]

Replace != repeal (0.00 / 0)

I don't see where the act separately repealed any previous contribution limits, rather it amended them.  You argue that this can be broken down into two distinct contained actions: an implicit repeal of previous limits, and inserting the new.  Thus, you argue, the new limits can be struck down, but the implicit repeal stands.

It remains to be seen if a court will accept this argument.  It isn't by any means the slam-dunk you represent it to be.  One could just as easily argue that the entire action is stuck down - and the prior law stands.  That the actual text of Act 64 is "Sec. 6. 17 V.S.A. § 2805 is amended to read:..." rather than "is repealed" convinces me that the prior law is more likely than not to stand.

The Governor had a much more obvious motivation to remain silent and veto the law - the fact that that unquestionably returned the law to a state where it allows unlimited party organization contributions, instead of a $400 limit.  No need to take a risky journey into a legal mire - just pass the funds through the party structure he totally controls.

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by: CarbonCopy @ Sun Aug 17, 2008 at 19:08:30 PM UTC

[ Parent ]

Not my area of expertise, but... (0.00 / 0)

...there is an implicit assumption you are making; that the Supreme Court doesn't simply rule on the Constitutionality of a law, but then implements, or in this case, re-impliments law. If a law was off the books, how can a court put it back on the books?

I don't think the SCOTUS has the authority to implement laws either implicitly (as you are suggesting) or explicitly. That is why laws usually build in legislative CASE statements like severability, because its not the COurt's responsibility to clean up a legislative mess (although they certainly create their share of them).

Nullius perfectus est

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by: odum @ Sun Aug 17, 2008 at 22:30:05 PM UTC

[ Parent ]

That pretty much sums it up (0.00 / 0)

When the court strikes a law, it does not write a new one. It's ruling basically tells the legislature to start over and get it right the next time.

sláinte,
cl

-- Religion is like sodomy: both can be harmless when practiced between consenting adults but neither should be imposed upon children.

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by: Caoimhin Laochdha @ Sun Aug 17, 2008 at 22:45:10 PM UTC

[ Parent ]

Statutory revision (0.00 / 0)

I don't see where the act separately repealed any previous contribution limits, rather it amended them.

Not sure I follow that.  If by "amend" you mean that Act 64 "struck" "repealed" "removed" - pick your verb - took one limit ($1,000) and replaced it with another ($400), well yeah, it was "amended."

To follow up on your "slam dunk" analogy, statutes are not like a basketball game. When you take a player out, s/he can grab some pine, take a rest, and come back into the game later. When the legislature revises a law, the old version of the law is not "sitting on the bench" waiting to come back into effect when the old law might play better at some point in the future. Instead, it's out of the game for good.

sláinte,
cl

-- Religion is like sodomy: both can be harmless when practiced between consenting adults but neither should be imposed upon children.

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by: Caoimhin Laochdha @ Sun Aug 17, 2008 at 22:42:59 PM UTC

[ Parent ]

Amend means Amend (0.00 / 0)

The actual language of Act 64 was "amend".  That's what it actually said.  Interpret as you wish, but the words "struck" "repealed" "removed" etc appeared nowhere in the legislation related to the contribution limits.  Legislation usually includes explicit repeal when that is what is meant.  A quick look at the elections section will show that all chapters before Chapter 31/Section 1811 were at one time or another repealed and replaced with substantially different provisions.

What happens if an amendment is struck down?  In many cases, that means the prior language (actual law passed by the legislature and signed by the governor, after all) is still in effect.  Remember, the statutes are just a codification.  Not every bit of legislation even ends up in the statutes.  A surprising amount doesn't, actually.  It's still law.

A very concrete example is redistricting plans.  These are generally also written as amendments to existing statute (as was the Vermont plan in Act 151, 2001-2002 session.)  When a plan is struck down by court, you do in fact revert to the prior districts, not "no districts".  Unless the court draws their own, which has also been known to happen.

It's a debatable point in this case, but you are presenting your view as far more certain than warranted.  I'd place the odds at 2:1 in favor of the old limits myself versus no limits.

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by: CarbonCopy @ Mon Aug 18, 2008 at 01:57:32 AM UTC

[ Parent ]

I'm not convinced (0.00 / 0)

...and I think you're misinterpreting. I think CL's onto something. The Act amended the law at the time. And that meant the law of the state stood as amended. The SCOTUS isn't going to suggest that the legislature can't amend a statute - that's ridiculous. It's seperation of powers stuff. But the Courts can determine that the law on the books - whether it got there through amendment or passage wholecloth - has to go. It was the limits that were struck down. The limits enshrined in statute, without backup or contingency. Not the act of "amending."

When a law contradicts and overwrites previous statute, the old version isn't necessarily underneath it like a sticker that can be removed. It's an overwrite. This isn't a case like the recent gun control decision, for example, where the court struck down one law, leaving other related legal restrictions untouched because they were distinct laws, were not challenged, and therefore still stand. The legislature changed existing law, they didn't just add another paragraph, and in the process they destroyed the previous one. And the Court decision spoke to the existing law.

Before the strikedown, I don't know if it makes sense that you could suggest they co-existed in some sort of mutual quantum or dialectic contradiction. In fact, I think such a paradigm would be fraught with danger. Can you imagine a legal challenge that was predicated on this notion of co-existence?

Nullius perfectus est

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by: odum @ Mon Aug 18, 2008 at 02:19:09 AM UTC

[ Parent ]

Let me try another way... (0.00 / 0)

This angle just occurred to me.

I think you're proceeding from the assumption that the Supreme Court deemed Act 64 unconstitutional. As I understand it, this is a mistake.

The SCOTUS is not going to rule on legislation, they are going to rule on law. Act 64 is the legislative act that created the statute, rather than the statute itself.

You're thinking that the Court said "Act 64 is bad" and threw it out, somehow undoing what it had done, but in fact what the court did is say that the campaign finance statute in question was "bad" and threw it out. Act 64 has not been removed from the books. It's still a part of legislative record, so its "amendment" is not "undone."

It's the limits themselves that were scrapped by the Court. Not the act of the legislature that put them there. And since the act contained no contingencies in case that were to happen.... oops.

At least, that's the argument, and it seems pretty damn sound.

Nullius perfectus est

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by: odum @ Mon Aug 18, 2008 at 02:30:03 AM UTC

[ Parent ]

Yes, I think you've hit the nail on the head (4.00 / 1)

That's what I wasn't getting until I read CL's reply.  The Supreme Court did not throw out Act 64.  With its ruling, it simply "erased" the campaign contribution limits.

If the Court had, for some reason, thrown out Act 64 in its entirety, CC's and my original interpretation would seem the logical one.  

-M

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by: Mike Eldred @ Mon Aug 18, 2008 at 12:01:56 PM UTC

[ Parent ]

Thanks (0.00 / 0)

Great explanation.  I can see the point.
Thanks for taking the time.

-M

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by: Mike Eldred @ Sun Aug 17, 2008 at 21:08:52 PM UTC

[ Parent ]

definitive answer? (0.00 / 0)

Interesting back and forth, sounds primarily like it is by people that don't necessarily know what they are talking about.

Has any of the intrepid reporters here gotten a take from our Secretary of State?

Perhaps Deb can shed some light on this issue.

PJ  

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by: Peter Joes @ Mon Aug 18, 2008 at 11:57:58 AM UTC

Heh n/t (0.00 / 0)

Nullius perfectus est

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by: odum @ Mon Aug 18, 2008 at 12:01:39 PM UTC

[ Parent ]

Their position (0.00 / 0)

At Secretary of State is to follow the A.G.'s position.  

Their online guide is here http://vermont-elections.org/elections1/2008CFGuideRev5212008.pdf

However, their guide includes this statement: 

Note that the information herein represents a conservative approach that is intended to avoid violations of the law. You are free to consult with your own counsel to assess the risk of taking a different view on any of these issues.

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by: Pschauk Paughpette @ Mon Aug 18, 2008 at 12:14:31 PM UTC

[ Parent ]

No avail (0.00 / 0)

Pollina should give the dough back and then withdraw from the race, saving himself further embarrassment over more financial hogwash that he has probably committed and leave before he gets too deeply in debt to no avail.


When you wake up each morning look around you.  It might be the last time you get to do it.  

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by: Watercloset @ Tue Aug 19, 2008 at 06:16:21 AM UTC

[ Parent ]

On a completely unrelated note.... (0.00 / 0)

The Brattleboro Reformer's very own Lee Sanderson drew this a while back.

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by: Christian Avard @ Tue Aug 19, 2008 at 01:10:55 AM UTC

Cartoon (0.00 / 0)

LOL..that was good:)  And true.  

When you wake up each morning look around you.  It might be the last time you get to do it.  

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by: Watercloset @ Tue Aug 19, 2008 at 06:17:02 AM UTC