If you’ve managed to read this far into this essay, chances are pretty good you are part of the Vermont voting demographic and the term “Koch brothers” tends to cause a reaction. I hope you continue reading, no matter which political philosophy gets your motor running, because the actual topic really is far more important than the Koch brothers.
Recently a Koch brothers corporation offered a specific group of Vermont voters something called “direct partnership payments” if they got their way on an upcoming local vote. Simply put, each registered voter would be paid money if they voted to pass the Koch brothers’ wishes. Some Vermonters rose up in righteous indignation. Our statutes prohibit such interference with our electoral process. Title 17, Section 2017 reads: “A person who attempts by bribery, threats, or any undue influence to dictate, control, or alter the vote of a freeman or freewoman about to be given at a local primary, or general election shall be fined not more than $200.00.” How could the Koch brothers get away with this?
Well, they didn’t. Although the payment offer is real, it wasn’t made by a Koch corporation. Please forgive the bait-and-switch ploy, for it was designed to get you thinking about what has actually happened from a different perspective. The real corporation is a Spanish entity called “Iberdrola.” The targeted voters are in Grafton and Windham.
When one of those targeted voters read the above statute, she contacted her local legislator, Rep. Carolyn Partridge, for an opinion. Recognizing the conflict, Representative Partridge in turn contacted Secretary of State Jim Condos’ office for his opinion. Recognizing the potential for a precedent that could challenge the integrity of Vermont’s electoral process, he in turn contacted the Attorney General’s office.
And here’s where things took a really bad turn. Tasked with rendering a legal opinion, Assistant Attorney General Michael Duane concluded Iberdrola’s payment offer “did not appear to violate the undue influence prohibitions” of the statute. He based his decision in large part on a 1982 United States Supreme Court case out of Kentucky, which acknowledged the right of states to prohibit “vote buying” but required further analysis to balance that right against the 1st Amendment freedom of speech rights of prospective defendants.
I’d argue Mr. Duane’s decision is dead wrong. The Kentucky case is easily distinguished from the situation here in Vermont. First, the statutes are different. Kentucky’s prohibited candidates from “offering material benefits to voters in consideration for their votes.” Vermont’s prohibits anyone from participating in “undue influence.” Thus the playing field is different.
More importantly, the facts are different. Kentucky featured a candidate promising voters he’d decrease his own salary if elected. Vermont features a third party offering direct payment to voters. Mr. Duane might have missed this distinction, but the Supreme Court did not. It opined: “There is no constitutional basis upon which [the Kentucky candidate’s] pledge to reduce his salary may be equated with a candidate’s promise to pay voters privately for their support from his own pocketbook.” This actually signals support for Vermont’s statute based on the facts here.
So, is Iberdrola’s offer “undue influence?” Let’s up the ante. Imagine the Koch brothers reacting to Iberdrola’s offer by doubling it if voters vote the other way. I don’t think anyone would argue that blatantly offering money to a targeted voter isn’t attempting to directly “influence” them. The only remaining issue should be whether it is “undue.” But that should be a question for a jury. If Mr. Duane’s decision stands, no jury will ever get that question. That is an unfortunate precedent that bodes ill for Vermont’s future electoral events. It is an invitation for rich people to literally buy results.
Sen. Joe Benning, of Lyndon, represents the Caledonia- Orange Senate District.