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Politics

Judges open door wider for out-of-state money in Alaska elections

  • Author: James Brooks
  • Updated: November 28
  • Published November 27

JUNEAU — A federal appeals court has ruled against a portion of Alaska’s campaign finance limits, saying a $3,000 cumulative cap on out-of-state contributions to candidates violates the First Amendment.

The 9th U.S. Circuit Court of Appeals upheld other parts of the campaign finance law, including a limit of $500 per person per candidate, a $500 contribution limit for non-political-party groups, and a limit on how much money a political party can give to a candidate.

The case stems from a lawsuit filed by Republicans against the state of Alaska’s voter-approved 2006 ballot measure restricting campaign contributions. Alaska District Court judge Timothy Burgess previously ruled in favor of the measure.

Laura Fox, the assistant attorney general who argued for the defense on behalf of the state, said the 9th Circuit’s decision has limited applicability.

“Not a lot of candidates hit that aggregate limit for out-of-state contributions anyway,” she said. “It’s hard to say what the significance is.”

Out-of-state contributors already can support a candidate by giving money to a political action committee in unlimited quantities. For example, Families for Alaska’s Future, a group supporting the election of Mike Dunleavy for governor, reported $2.8 million in contributions before the start of November, almost entirely from national Republican groups. Defeat Dunleavy, a campaign on the opposite side of the election, reported major contributions from national Democrats.

Final campaign finance statistics will not be available until after Jan. 1, but by all appearances, spending by PACs was vastly greater than spending by individual contributions to individual candidates. The main restriction on a PAC is that it is not permitted to directly work with a campaign.

Tuesday’s appeals decision drew upon the precedent established by the U.S. Supreme Court in 2010 with the Citizens United decision and in 2013 with the McCutcheon decision. In those two cases, the Supreme Court declared that limits on campaign contributions can restrict participation in elections and thus violate the First Amendment.

The key test for a limit’s legality: Does the limit "target quid pro quo corruption or its appearance”?

In three of the four challenges against the law, appeals judges agreed that yes, the law does do that.

In the fourth challenge, that against the limit on out-of-state contributions to candidates, the judges "cannot agree that the nonresident limit targets quid pro quo corruption or its appearance."

The judges said Alaska’s law appears to contradict itself. Under existing law, someone living Outside can contribute up to $500 per candidate, but the candidate can only accept $3,000 worth of Outside contributions from individuals. (Groups face no such limit.)

If an Outside resident wants to donate money to a candidate who has already hit their limit, that isn’t allowed. It doesn’t make sense, the judges said, that an early donation (before the candidate reached their limit) would be less corrupting than a later one.

“Alaska fails to show why an out-of-state individual’s early contribution is not corrupting, whereas a later individual’s contribution — i.e., a contribution made after the candidate has already amassed $3,000 in out-of-state funds — is corrupting,” the judges wrote.

The judges also rejected an argument made by the state attorneys that Alaskans should determine Alaska elections.

“The premise of Alaska’s concern with ‘outside control’ is that Alaska state officials will feel pressure to kowtow to out-of-state entities because of nonresident contributions,” they wrote. “But that debate is over. The Supreme Court has expressly considered and rejected those arguments.”

Speaking by phone from Anchorage, Fox said the state has not decided if it will appeal its limited defeat at the hands of the appeals court. The state or plaintiffs could ask for the case to be heard by the full 9th Circuit, or the case could be sent directly to the U.S. Supreme Court.

Attorney Kevin Clarkson, who represented the plaintiffs, did not return phone calls in time for this article.

Plaintiff Jim Crawford of Anchorage said by phone that the key argument of the lawsuit is straightforward: “The constitutional protection for free speech extends to the money that you want to spend, and putting a cap on that … limits free speech.”

He said plaintiffs expected they would lose at the district court and appeals court level but believe a different attitude will prevail at the U.S. Supreme Court.

“Now we’re going to take it up to the U.S. Supreme Court and we’re going to win at the U.S. Supreme Court,” he said.

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