Vermont Bar Journal, Vol. 40, No. 2 - Page 29

Bill Sorrell . 18
The need to raise money for future elections may drive incumbent legislators to avoid recusing themselves — especially when the text in the existing legislative recusal rules was written for a different era , before Buckley , and when the decision to recuse is left entirely to their own interpretation . The possibility that substantial money in the next election cycle will be diverted to their opponent may further weaken their independent judgment . No quid pro quo agreement is needed to encourage a legislature to redeem the IOU by his or her vote on a matter of interest to the electioneering investor .
Conflict of interest recusal does not require the formal or informal agreement that is probative of illegal bribery . The prospect of receiving continued campaign financing from a lobbyist ’ s employer as opposed to seeing that same money going to their opponent appears to place undue influence on the votes of legislators sufficient to trigger recusal . Refusing money may only guarantee the same funds be spent on the legislator ’ s opponent next time around .
The Vermont Constitution provides : that government is , or ought to be , instituted for the common benefit , protection , and security of the people , nation , or community , and not for the particular emolument or advantage of any single person , family , or set of persons , who are a part only of that community .... 19 As the Vermont Supreme Court held in Baker v . State of Vermont , 20 “ at its core the Common Benefits Clause expressed a vision of government that afforded every Vermonter its benefit and protection and provided no Vermonter particular advantage .”
Similarly , the oath of office for Vermont officials provided in Vermont ’ s Constitution 21 is to “ do equal right and justice to all persons , to the best of your judgment and ability .”
These constitutional provisions are in danger of being replaced by special rights for those with big dollars to invest in election financing .
Lacking a reformed recusal requirement , “ unduly large campaign contributions [ will ] have the ability to corrupt and create the appearance of corrupting candidates and the democratic system .” 22 The provision in Vermont ’ s constitution “ that all elections ought to be free and without corruption ” 23 is effectively being replaced by the ubiquitous pay to play .
To expressly require recusal for a conflict of interest created by election financing , the following could be added to Vermont recusal rules , adopted from the Nevada law 24 the Supreme Court held constitutional
:
No public officer shall be permitted to vote or take any other official action upon any matter with respect to which the independence of judgment of a reasonable person in his or her situation would be materially affected by his or her commitment in a private capacity to the special interests of others , including when a conflict of interest is caused by election expenditures or a promise concerning election expenditures .
The rule would solve the corruption problem in the simplest way possible . It would expressly require a legislator who benefits from such election expenditures to recuse himself or herself on a question of special interest to such a political investor if a reasonable person would find his or her independence of judgment impaired by the election spending .
The updated recusal rule would not prevent a legislator from voting on matters unrelated to the special interests of persons or businesses that spent money to fund his or her election . Nor would it prevent election spending too small in amount to reasonably influence the elected official ’ s independent judgment . However , the recusal rules would apply when expenditures from persons with similar goals are aggregated together to reach a level that would impair the independent judgment of a reasonable person in the legislator ’ s position .
The presence of such an updated recusal fix would likely discourage the kind of election spending that a reasonable person would find conflicts with the public interest and that advances a private interest . Election spending for the purpose of purchasing government policy or government action would become counterproductive . That is precisely the kind of election spending that the United States Supreme Court said Congress and state legislatures could legitimately take action to suppress in the line of cases starting with Buckley and including Citizens United and McCutcheon .
Chasing after all the different sources of money — including dark sources — flowing into the political system as “ quids ” is far more difficult and fraught with intricate constitutional hurdles than simply preventing the single “ quo ” vote by an incumbent whenever the odor of corrupting money is detected by the reasonable person standard .
Vermont can solve the pervasive conflict of interest problem , widely perceived by an aroused public , without running afoul of any Supreme Court decisions in the Buckley “ money equals speech ” line of decisions . It can employ its constitutional mandates to establish the model for recovering democracy from the tyranny of political corruption legalized by the United States Supreme Court , much like Vermont ’ s 1777 Constitution 25 helped establish the
American model for a constitutional democracy freed from the tyranny of empire . ____________________ James Marc Leas is a patent lawyer in
South Burlington , Vermont . The author thanks attorney Rob Hager for reviewing and offering helpful suggestions . ____________________
1
Buckley v . Valeo , 424 U . S . 1 ( 1976 ).
2
Randall v . Sorrell , 548 U . S . 230 , 236 – 37
( 2006 ).
3
Citizens United v . Fed . Election Comm ’ n , 558 U . S . 310 ( 2010 ).
4
Rob Hager , Rackets Science : Obama ’ s Omnibus , or the Influence Peddlers Protection Act of 2015 ( Pt 1 ), Huffington Post , January 7 , 2016 , http :// www . huffingtonpost . com / rob-hager / rackets-science-cromnibus _ b _ 8914836 . html
5
An Act Relating to Campaign Finance Laws , No . 90 , S . 82 , 2013-14 Legis . Sess . ( Vt . 2014 ).
6
Nev . Comm ’ n on Ethics v . Carrigan , 131 S . Ct . 2343 ( 2011 ).
7
Id . at 2347 .
8
Id .
9
Id . at 2348 ( quoting 1 Annals of Cong . 99 ( 1789 )).
10 permanent rules of the vermont senate 14 ( Vt . 2013 ), http :// legislature . vermont . gov / assets / All- Senate-Documents / Senate-Rules . pdf .
11 rules and orders of the house of representatives 14 ( Vt . 2014 ), http :// www . leg . state . vt . us / HouseClerk / houserules . htm .
12
Id . at 2349 .
13
Id . at 2347 – 48 ( quoting Republican Party of Minn . v . White , 536 U . S . 765 , 785 ( 2002 )).
14
Exec . Order No . 09-11 , vt . stat . ann . tit . 3A , § 3-53 ( 2015 ), http :// legislature . vermont . gov / statutes / fullchapter / 03APPENDIX / 003 .
15
Id . § 3-53 ( III )( A )( 2 ).
16
Id . § 3-53 ( II )( A )( 1 )–( 3 ).
17
Id . § 3-53 ( III )( A )( 6 ).
18
Heintz , supra note 18 .
19
Constitution of the State of Vermont , http :// legislature . vermont . gov / statutes / constitutionof-the-state-of-vermont /
20
Baker v . State of Vermont , 744 A . 2d 864 ( Vt . 1999 ) 170 Vt . 194 .
21
Constitution of the State of Vermont , http :// legislature . vermont . gov / statutes / constitutionof-the-state-of-vermont /
22
An Act Relating to Campaign Finance Laws , No . 90 , S . 82 , 2013-14 Legis . Sess . ( Vt . 2014 ) § 1 ( 5 ).
23
Constitution of Vermont - July 8 , 1777 , http :// avalon . law . yale . edu / 18th _ century / vt01 . asp
24
Nev . Comm ’ n on Ethics v . Carrigan , 131 S . Ct . 2343 , 2352 ( 2011 ) ( Kennedy , J ., concurring ) ( quoting nev . rev . stat . § 281A . 420 ( 2 ) ( 2007 )).
25
Constitution of Vermont - July 8 , 1777 , http :// avalon . law . yale . edu / 18th _ century / vt01 . asp
Citizens United
www . vtbar . org THE VERMONT BAR JOURNAL • SUMMER 2016 29
The Vermont Constitution provides: that government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community ....19 As the Vermont Supreme Court held in Baker v. State of Vermont,20 “at its core the Common Benefits Clause expressed a vision of government that afforded every Vermonter its benefit and protection and provided no Vermonter particular advantage.” Similarly, the oath of office for Vermont officials provided in Vermont’s Constitution21 is to “do equal right and justice to all persons, to the best of your judgment and ability.” These constitutional provisions are in danger of being replaced by special rights for those with big dollars to invest in election financing. Lacking a reformed recusal requirement, “unduly large campaign contributions [will] have the ability to corrupt and create the appearance of corrupting candidates and the democratic system.”22 The provision in Vermont’s constitution “that all elections ought to be free and without corruption”23 is effectively being replaced by the ubiquitous pay to play. To expressly require recusal ܈HۙXو[\\ܙX]YH[X[ۈ[[[H[[HYY\[۝X\[[\YYHH]YB]̍H\[YH\[ۜ]][۝˝\ܙ‚[XXٙX\[H\Z]YH܈ZH[H\ٙXX[X[ۈ\ۂ[HX]\]\XXH[\[[HوYY[وHX\ۘXB\ۈ[\܈\]X][ۈ[HX]\X[HYXYH\܈\[Z]Y[[H]]H\X]HHXX[[\\›و\[Y[[HۙXو[\\\]\YH[X[ۈ^[]\\܈BZ\Hۘ\[[X[ۈ^[]\\˂H[H[HHܜ\[ۂ؛[H[H[\\^HXK][^\H\]Z\HHY\]܈˜[Y]HX[X[ۈ^[]\\X\H[\[܈\[ۈH]Y\[ۂوXX[[\\XH]X[[\܈YHX\ۘXH\ۈ[[\܂\[\[[HوYY[[\Z\YHH[X[ۈ[[˂H\]YX\[[H[][HY\]܈H[ۈX]\[[]YHXX[[\\و\ۜ›܈\[\\][[ۙ^H[\›܈\[X[ۋ܈[]][[X[ۈ[[X[[[[[X\ۘXH[Y[HH[XYٙXX[8&\[\[[YY[ ]\HX\[[\[\H[^[]\\™H\ۜ][Z[\[\HYܙY]Y]\XXH][][[\Z\H[\[[YY[وHX\ۘXH\ۈ[HY\]ܸ&\][ۋH\[HوX[\]YX\[^[Z[H\\YHH[ق[X[ۈ[[]HX\ۘXH\ۈ[[ۙX]HXX[\\[]Y[\H]]H[\\ [X[ۈ[[܈H\Hو\\[ݙ\Y[XH܈ݙ\Y[X[ۈ[XYH[\X]K]\X\[HH[و[X[ۈ[[]H[]Y]\\[YH\ZYۙܙ\[]HY\]\\[Y][X][HZHX[ۈ\\[B[Hو\\\[]X^H[[Y[]^[[]Y[X][ۋ\[Y\[HY\[\\›و[ۙ^x%[Y[\\\%[[H]X[\[H\8']ZY'H\™\[ܙHYX[[]Y][X]Bۜ]][ۘ[\\[[\H][[H[H8']['HHH[[[X[[]\H܈وܜ\[[ۙ^H\™]XYHHX\ۘXH\ۈ[\ \[۝[HH\\]HۙXو[\\؛[KY[H\Z]YH[\\YXX]][[˜Y[و[H\[YH\X\[ۜ[HX^H8'[ۙ^H\]X[YX8'H[HقX\[ۜˈ][[\H]ۜ]][ۘ[X[]\\X\H[[܈Xݙ\[[[ܘXHHH\[Hو]X[ܜ\[ۈY[^YHH[]Y]\\[YH\ ]XZH\[۝8&\ŒMۜ]][یH[Y\X\BHTSӕTTS8(SSQT M[Y\X[[[܈Hۜ]][ۘ[[[ܘXHYYHH\[Hو[\\K’[Y\X\X\\H][]Y\[]\[ۋ\[۝ H]]܈[]ܛ^H؈Y\܈]Y][[ٙ\[[[Y\[ۜ˂‚]^[[]Y[ܜ[ NHYYZ\H[ۙ^H܈]\H[X[ۜX^H]H[[X[Y\]ܜ˜]YX\[[\[\%\XX[B[H^[H^\[Y\]]HX\[[\\ܚ][܈HY\[\KYܙHX^K[[HX\[ۈœX\H\Y[\[HZ\ۈ[\]][ۋHX[]H]X[X[[ۙ^H[H^[X[ۈXH[H]\YZ\ۙ[X^H\\XZ[Z\[\[[YY[ ]ZYœ][YܙY[Y[\YYY[\YHBY\]\HYY[HHSHH\܈\HۈHX]\و[\\H[X[ۙY\[[\܋ۙXو[\\X\[\\]Z\HHܛX[܈[ܛX[YܙY[Y[]\ؘ]]Hو[Y[X\KBXوXZ][۝[YY[\ZYۂ[[[HHؘZ\8&\[\Y\\YYZ[][YH[ۙ^H[Z\ۙ[\X\XH[YH[Y[HۈH\وY\]ܜYXY[Y\X\[ Y\[[ۙ^HX^BۛHX\[YHH[YH[H[ۂHY\]ܸ&\ۙ[^[YH\[ X^H[[ Kˈ H NM͊K[[ܜ[  MKˈ  ͸$Š K]^[[]YY [X[ۈ[x&[ MNKˈ L L K؈Y\X]Y[Nؘ[Xx&\“[X\܈H[Y[HY\X[ۂXو MH  JKY[ۈ [X\H  M˚Y[ۜ Kܛ؋ZY\ܘX]\Y[KXܛ[X\ؗLM ͋[B[X[][[\ZYۈ[[H]ˈL ˎ  LLMY\ˈ\ˈ  M K][x&[ۈ]X\Y[ LH˂ LJK’Y ] ˂Y BY ]  ][[ H[[وۙˈNB MJJKL\X[[[\وH\[۝[]H M  LKY\]\K\[۝ ݋\][[]KQ[[]KT[\˜LB[\[ܙ\وH\Hق\\[]]\ M  M K˛Y˂]K \\P\\\[\˚KLY ] KL’Y ] $ ][[\XX[\HقZ[]K L͈Kˈ ͍K H JKM^Xˈܙ\ˈ KLLK ] [] K ML MJKY\]\K\[۝ ݋œ]]\ٝ[\\ TSV ˂MBY 0 ML RRJJJJ KMY 0 ML RJJJJ Jx$ KM’Y 0 ML RRJJJJ KNZ[\HH N NBۜ]][ۈوH]Hو\[۝ ›Y\]\K\[۝ ݋]]\ۜ]][ًۛ]K\]K[ً]\[۝ ŒZ\]Hو\[۝  K   NNNJH M NM Bۜ]][ۈوH]Hو\[۝ ›Y\]\K\[۝ ݋]]\ۜ]][ًۛ]K\]K[ً]\[۝ Œ[X[][[\ZYۈ[[H]ˈL ˎ  LLMY\ˈ\ˈ  M H0ŒJ JKۜ]][ۈو\[۝ H[H  M][ۋ]˞X[KYKN[\Kݝ K\][x&[ۈ]X\Y[ LHː  L LJH [YKۘ\[B][[]] ] 0 PK H JKBۜ]][ۈو\[۝ H[H  M][ۋ]˞X[KYKN[\Kݝ K\BB