The federal courts recently hammered three more nails into the coffin of democracy of, by and for the people. In the case Thompson v. Hebdon, the Ninth Circuit Court of Appeals struck down three provisions of Alaska law that imposed reasonable and evenhanded limits on expenditures to influence state and local elections in Alaska. With the chief justice dissenting, the two-judge majority overturned the $500 per-year limit on the amount of money an Alaskan can contribute to an individual candidate; the $500 per-year limit on contributions to a particular political group; and the $3,000 per-year limit on the amount of money a candidate can accept from all out-of-state donors combined. It is unclear at this time whether the decision will be appealed.
The stated purpose of the 1996 law was “to restore the public’s trust in the electoral process and to foster good government.” That was the very year that a major corruption scandal emerged in Alaska. Six legislators were ultimately indited for accepting bribes from Bill Allen of the oilfield services company Veco. The District Court cited this bit of history in support of its finding that that Alaska is “highly, if not uniquely vulnerable, to corruption in politics and government,” due to the small size of our Legislature and our heavy dependence on one major industry.
The Alaska Legislature raised the campaign contribution limits in 2003. Outraged by this betrayal, the people pushed back: In 2006, we passed a citizens’ initiative to restore the stricter limits. The initiative passed with 73% of the vote. Clearly, Alaskans want strong campaign finance laws to ensure that our elected officials answer to all of us, not just to the biggest donors and grifters.
The heart of the problem is a series of decisions by the U.S. Supreme Court holding that limits on the amount of money that can be spent to influence elections violate First Amendment rights to free speech. The most infamous of these decisions is Citizens United v. F.E.C., in which, by a slim majority, the court struck down a Federal Election Commission rule that regulated independent expenditures intended to influence a federal election. This provision was part of the widely supported Bipartisan Campaign Act of 2002.
In the wake of the Citizen’s United decision, pursuant to an opinion by Alaska’s then-Attorney General Dan Sullivan — now Sen. Dan Sullivan — the Alaska Public Offices Commission stopped enforcing the part of Alaska’s campaign finance law that limited contributions to Super PACs. As a predictable result, between 2008 and 2018, unregulated independent expenditures increased from 3% to 36% of campaign spending in our state, and two-thirds of this new money was from Outside donors. Including the ballot measures, independent expenditures for the 2020 election exceeded $23 million. This flood of big money into Alaska elections is a concern for Alaskans across the political spectrum.
No constitutional right is absolute. Legislatures are allowed to place reasonable time, place and manner restrictions on speech. If you go to testify before your local city council, you will be given a time limit. Fair and uncorrupted elections are fundamental to our democracy; reasonable and evenhanded limits on money spent to influence elections are necessary to ensure fairness and mitigate corruption. But the U.S. Supreme Court has decreed that the constitutional standard for limiting campaign expenditures is a higher bar: preventing direct “quid pro quo” corruption. Other forms of corruption, such as the general good will and audience that comes from giving campaign donations does not count under the Supreme Court’s analysis.
It is reasonable to ask who benefits. There are only a small number of individuals or companies that seek to give very large amounts of money to candidates. In general, those individuals and companies are giving money to politicians, or spending money to support politicians, because those politicians are in a position to bestow great economic benefits on their donors. So the politicians benefit from unlimited donations. The donors benefit from having politicians who are grateful to them for those donations, and whom can support the donor’s legislative agendas.
But the ordinary citizens, like the 73% of Alaska voters who supported the campaign contribution limitations in Alaska’s laws, are left out in the cold. Their voices seeking candidates and public policies that will benefit ordinary people are diluted to undetectable levels by the flood of special interest and dark money. As a result of decades of judicial engineering, we the people are constitutionally prohibited from enacting reasonable and fair limitations on the scope of campaign contributions. Our only possible solution for this judicial coup d’etat is to pass a constitutional amendment that will override the courts and clearly establish that we do have the power to enact reasonable and evenhanded limits on the amount of money that can be expended to influence our elections.
Now is the time.
Sharman Haley is a retired professor of economics and public policy at the University of Alaska Anchorage, and an activist with Alaska Move to Amend.
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