Suit threatened over campaign finance ruling

MONTPELIER, Vt.—A prominent Burlington lawyer said Tuesday he is in talks with supporters of independent gubernatorial candidate Anthony Pollina about filing suit in federal court over Vermont's campaign finance laws.

The comments from John Franco, former Burlington city attorney and former aide to Sen. Bernie Sanders when a congressman, came as Pollina's campaign was striking a conciliatory tone and saying he would take steps to comply with the law as interpreted by Secretary of State Deborah Markowitz and Attorney General William Sorrell.

"Anthony's waving the white flag on this," said Franco, who said he had donated $600 to Pollina this election cycle and might like to give more. "But this implicates the constitutional rights of his contributors as well. It's not going down very easily with me, and it's not going down very easily with some of his other contributors, either."

Pollina's problem with contributions began in July after he dropped his Progressive Party affiliation and said he would run for governor as an independent. The Secretary of State's office notified him of a tighter limitation on fundraising by independent candidates and that he may have accidentally violated it.

At issue is a campaign finance law provision that limits independent candidates to contributions of $1,000 per donor -- half as much as what party-affiliated candidates can raise.

Franco said he had been in talks with other Pollina donors and expected to act as their lawyer when they file suit in the coming days in federal court.

Meanwhile, former Democratic congressional candidate and Bennington County State's Attorney John A. Burgess said he and his wife Virginia, who are active in the group Democrats for Pollina, were contemplating filing their own suit.

Burgess said they would hold off if Franco goes ahead.

"If Johnny Franco has a client, God bless him. Go get it," said Burgess, who now lives in Morrisville.

Critics of the Sorrell-Markowitz legal interpretation say they see two problems with it:

-- One, it leaves candidates who belong to political parties the ability to raise $2,000 from each donor in each two-year election cycle, with the theory that $1,000 bill be used in the primary and $1,000 in the general elections. Independents do not face primaries, and are limited to raising $1,000 per election cycle.

But Franco and other critics maintain that major-party candidates often don't face primaries either, as neither Republican incumbent Gov. Jim Douglas nor Democratic challenger Gaye Symington have primary challengers this year. Despite this, they can raise $2,000 from each donor.

-- And they question whether the law Pollina is alleged to have violated exists at all. Vermont passed a new campaign finance law in 1997 that took effect in 1998, but it was struck down by the U.S. Supreme Court in 2006. Sorrell and his assistants have argued that Vermont's pre-1997 campaign finance law was automatically reinstated through a legal doctrine of revival.

But critics say Vermont statutes bar the revival of an old law when a new one is removed. One provision in Title I of the Vermont statutes says, "The amendment or repeal of an act or of a provision of the Vermont Statutes Annotated shall not revive an act or statutory provision which has been repealed."

Assistant Attorney General Michael McShane said that passage refers to amendment or repeal by the Legislature; he argued that it doesn't apply when a law is struck down by the U.S. Supreme Court.

Pollina said Tuesday his campaign had decided not to fight the attorney general and secretary of state over their interpretation of the law, but if others want to do so, "I'm OK with that."

He said the law appears to amount to "clear discrimination against people who run as independents," and that he's received legal advice raising questions about the revival doctrine. "I think these are really important issues and I want to see them resolved."

But he said his campaign had been contacting donors who gave more than $1,000, advising them to transfer part of the donation to a spouse or partner's name or call the excess amount a loan to be paid back after the election.

Of a potential legal fight, Pollina said, "I just don't have the time or energy. I want to be on the front page talking about energy, talking about jobs."

McShane defended the revival doctrine, saying it would be needed, for instance, if a kidnapping or aggravated assault prohibition were struck down due to some constitutional flaw.

He acknowledged that no Vermont court had ruled that such a doctrine exists, but said courts in other states had done so. "It's certainly a reasonable argument to make in Vermont," McShane said.

McShane also said allowing party-affiliated candidates to raise more than independents could meet a legal test that it have some "rational basis. The rational basis here would be that the Legislature assumed it would be more expensive to have a primary than not to have a primary. In general that would be true. It might not be true in every case."