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Alaska v. Alaska Civil Liberties Union (4/16/99), 978 P 2d 597
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Supreme Court No. S-8778
Appellant, )
) Superior Court No.
v. ) 3AN-97-5289 CI
)
ALASKA CIVIL LIBERTIES UNION, ) O P I N I O N
)
Appellee. ) [No. 5108 - April 16, 1999]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Michael L. Wolverton, Judge.
Appearances: David T. Jones and Jan Hart
DeYoung, Assistant Attorneys General,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellant. Jonathan B. Rubini, Foster, Pepper, Rubini & Reeves,
L.L.C., Anchorage, and Suzanne S. La Pierre, Anchorage, for
Appellee. Kyle W. Parker, Patton, Boggs, L.L.P., Anchorage, and
Benjamin L. Ginsberg, John C. Martin, and Donald F. McGahn II,
Patton, Boggs, L.L.P., Washington, D.C., for Amicus Curiae Alaska
State Chamber of Commerce.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
The Alaska legislature reformed Alaska's campaign
financing statutes in 1996 by enacting Chapter 48 SLA 1996 (the
Act), also known as Senate Bill (SB) 191. [Fn. 1] The Alaska Civil
Liberties Union (AkCLU) sued the State of Alaska, seeking a
judgment declaring that parts of the Act violated rights of free
speech and association by restricting campaign contributions and
expenditures for state and local elections. Accepting AkCLU's
arguments, the superior court held that SB 191 was
unconstitutional. Because we hold that the State had a legitimate
interest in preventing corruption or the appearance of corruption
in state election campaigns and that most of the challenged
provisions were narrowly tailored to achieve that interest, we hold
that the challenged provisions, with limited exceptions discussed
below, do not offend rights of speech and association. Reading the
bans on non-group entities' expenditures and contributions
narrowly, we reverse generally the judgment declaring the Act
unconstitutional. But we affirm as to the invalidity of the pre-
election year and legislative session contribution bans.
II. FACTS AND PROCEEDINGS
The legislature's concern about the effect of undue
influence on the work of government -- first expressed in a 1913
statute requiring lobbyists to register [Fn. 2] -- has reached
comprehensive scope in the last quarter-century. In 1974 the
Alaska legislature enacted statutes regulating state election
campaigns. Individuals were prohibited from contributing more than
$1,000 annually to a candidate other than themselves. [Fn. 3] No
cash contribution exceeding $100 could be made to a candidate, [Fn.
4] and no expenditure promoting a candidate exceeding $100 could be
made unless a written receipt was filed with the state's election
commission. [Fn. 5] Candidates' total expenditures in campaigns
for various offices were limited by formulas relating to the office
sought and the population of the constituency area, and, for house
and senate seats, the number of seats in the district, although the
legislature later repealed this provision. [Fn. 6] In 1975 the
legislature expanded the $1,000 annual candidate contribution limit
to cover groups, political committees, businesses, corporations,
and labor unions. [Fn. 7]
In 1996 the Alaska legislature comprehensively reformed
Alaska's campaign financing laws by enacting SB 191. It passed the
bill not long before voters were to vote on an initiative to reform
campaign finance. The State asserts here, as it did below, that SB
191 was a response to the initiative and to public concerns about
actual and apparent corruption in Alaska politics. The Act recited
these legislative findings:
(3) organized special interests are
responsible for raising a significant portion of all election
campaign funds and may thereby gain an undue influence over
election campaigns and elected officials, particularly incumbents
. . .
. . . .
(5) because, under existing laws, candidates
are completely free to convert campaign funds to personal income,
there is great potential for bribery and political corruption.[[Fn. 8]]
The Act also expressed the following purpose: "It is the
purpose of this Act to substantially revise Alaska's election
campaign finance laws in order to restore the public's trust in the
electoral process and to foster good government." [Fn. 9]
Senate Bill 191, while less restrictive in some areas,
was more comprehensive in scope than the initiative it sought to
supplant. Unlike the initiative, SB 191 included not only
contribution limits and prohibitions, and expenditure prohibitions,
but time restrictions, restrictions on the use of campaign assets,
restrictions on the use of gaming proceeds, exemptions from
reporting requirements, campaign lending restrictions, and
standards of criminal conduct. [Fn. 10]
Senate Bill 191 became effective January 1, 1997. [Fn.
11]
AkCLU sued the State in July 1997. It complained that
the Act violated both the First Amendment to the United States
Constitution, as applied to the states through the Fourteenth
Amendment, and article I, section 5 of the Alaska Constitution. It
sought declaratory and injunctive relief specifically challenging
the validity of the Act's provisions containing (1) limits on
campaign contributions; (2) bans on certain types of campaign
contributions; (3) restrictions on the timing of contributions; (4)
restrictions, which AkCLU characterized as expenditure limitations,
on campaign funds carry-forwards and inter-candidate contributions;
and (5) bans on independent expenditures by certain organizations.
AkCLU moved for complete summary judgment, relying
heavily on the United States Supreme Court's opinion in Buckley v.
Valeo, which requires a threat of corruption or the appearance of
corruption to justify regulation of campaign speech. [Fn. 12]
AkCLU submitted no factual evidence. The State opposed AkCLU's
motion, cross-moved for summary judgment, and submitted more than
1800 pages of documents. The documents included: independent
studies; a study commissioned by the state senate; fifteen
affidavits, including affidavits from former Governors Steve
Cowper, Jay Hammond, and Walter Hickel, and former house member
David Finkelstein; news clippings; Alaska Public Offices Commission
(APOC) reports; and campaign disclosure records. AkCLU's reply
attached the affidavit of an advertising firm account manager.
AkCLU later submitted two additional affidavits in support of its
motion for preliminary injunction.
The State's evidence discussed the proposed campaign
finance initiative and the drive to place it on the ballot in 1996.
The initiative contained a finding, as noted above, that
"[o]rganized special interests are responsible for raising a
significant portion of all campaign funds, and may thereby gain an
undue influence over campaigns and elected officials, particularly
incumbents."
Michael Frank, chair of Campaign Finance Reform Now!, the
ballot measure organizers, affied that over 30,000 people signed
the petition for the ballot initiative. Frank said he heard
frequent comments from citizens who said that "after candidates got
elected they 'went bad' or 'became corrupt' or 'got crooked' or
'went on the take' and began accepting contributions and favors
from the interests they were supposed to regulate." Frank stated
his personal view that the existing system "reeked of corruption."
Michele Keck, who also collected signatures for the
initiative, affied that she got involved because "[t]he decisions
of elected officials appear too often to be linked to campaign
contributors [rather] than to the merits of the issues." She said
she collected approximately 5,000 signatures for the initiative,
and her impression was that others who signed the petition felt the
same way she did.
David Finkelstein, a former state house member, affied
that he personally had gathered over a thousand signatures for the
campaign reform initiative. "The constant refrain I heard from
citizens," he said, "was that the Legislature was owned by special
interests. This perception existed even among people who would not
sign the initiative, who would often state that nothing was going
to change the corruption caused by big money."
The State also introduced a report commissioned by the
Alaska State Senate and produced by the Josephson Institute in
1990. The report discussed the opinions of lobbyists, legislators,
and state public officials on legislative ethics in Alaska. The
researchers found that: "the level of trust and confidence in the
integrity of the legislature is disturbingly low"; the low level of
trust is attributable at least in part to "calculated evasions of
the purpose and spirit of campaign laws"; and calculated evasions
of the campaign laws were, according to fifty percent of
legislators and sixty-eight percent of public officials, a serious
problem calling for greater regulation.
Following oral argument, the superior court granted
summary judgment to AkCLU. The court primarily relied upon
Buckley, and gave several reasons for its result: the State had not
introduced evidence of "real harm"; SB 191's contribution limits
are impermissibly "differen[t] in kind" from the Buckley limits;
and "leveling the playing field" is an inadequate justification for
restricting campaign contributions. Concluding that the valid and
invalid provisions were "so inextricably intertwined" that the
valid provisions could not be severed and preserved, the court
invalidated the entire Act, including those provisions AkCLU did
not explicitly challenge, as unconstitutional under the First
Amendment.
The State appeals.
III. DISCUSSION
A. Standard of Review
We review grants of summary judgment de novo. [Fn. 13]
To obtain summary judgment, the moving party must prove the absence
of genuine factual disputes and its entitlement to judgment. [Fn.
14]
If the movant makes a prima facie showing that
he or she is entitled to judgment on the established facts as a
matter of law, the opposing party must demonstrate that a genuine
issue of fact exists to be litigated by showing that it can produce
admissible evidence reasonably tending to dispute the movant's
evidence.[ [Fn. 15]]
When a court grants summary judgment without stating its
reasons, we presume that the court ruled in the movant's favor on
all the grounds stated. [Fn. 16] All reasonable inferences of fact
must be drawn against the moving party and in favor of the
nonmoving party. [Fn. 17]
This case raises constitutional issues. Issues of
constitutional interpretation are questions of law which we review
de novo. [Fn. 18]
B. History of Campaign Finance Litigation
1. Buckley v. Valeo
Buckley v. Valeo is the wellspring of modern campaign
finance jurisprudence. The Supreme Court there reviewed
contribution and expenditure limits contained in the 1974
amendments to the Federal Election Campaign Act of 1971. [Fn. 19]
It concluded that all campaign finance restrictions impinge on
public debate and therefore implicate the First Amendment. [Fn. 20]
"[C]ontribution and expenditure limitations impose direct quantity
restrictions on political communication and association by persons,
groups, candidates, and political parties . . . ." [Fn. 21]
Accordingly, the Court held that campaign finance reform
measures limiting expenditures must satisfy "the exacting scrutiny
applicable to limitations on core First Amendment rights of
political expression." [Fn. 22] Concerning contribution limits,
the Court explained that "[e]ven a 'significant interference with
protected rights . . .' may be sustained if the State demonstrates
a sufficiently important interest and employs means closely drawn
to avoid unnecessary abridgment of associational freedoms." [Fn.
23] The Court later explained that to be constitutional, a
provision burdening the exercise of political speech must be
"narrowly tailored to serve a compelling state interest." [Fn. 24]
Buckley addressed limits on contributions and
expenditures in election races for federal office. [Fn. 25] In
doing so, the Court upheld the contribution limits but struck down
the expenditure limits, drawing a distinction that the Court has
continued to observe. [Fn. 26]
The challenged expenditure limits, the Court reasoned,
were invalid because they directly and substantially limited the
quantity of political speech. [Fn. 27] The 1974 amendments limited
individual and group expenditures to $1,000 per election for
clearly identified candidates, thus preventing, for example, a one-
quarter page advertisement in a major metropolitan newspaper. [Fn.
28] The Court found that the governmental interest in preventing
corruption and the appearance of corruption was inadequate to
justify the ceiling on independent expenditures, for two reasons.
[Fn. 29] First, the "exacting interpretation" needed to avoid
unconstitutional vagueness would render the ceiling ineffective.
[Fn. 30] Second, there was little danger genuinely independent
expenditures (those absent prearrangement and coordination) would
be made as a quid pro quo for the candidate's "improper
commitments." [Fn. 31] The ceiling therefore served no
"substantial government interest" but heavily burdened core First
Amendment expression. [Fn. 32] The Court also rejected, as
insufficiently compelling, other rationales for campaign finance
reform, including "leveling the playing field." [Fn. 33]
But the Court reasoned that contribution limitations, in
contrast, primarily implicate associational rights. [Fn. 34] The
Court explained that
a limitation upon the amount that any one
person or group may contribute to a candidate or political
committee entails only a marginal restriction upon the
contributor's ability to engage in free communication. . . . The
quantity of communication by the contributor does not increase
perceptibly with the size of his contribution, since the expression
rests solely on the undifferentiated, symbolic act of
contributing.[ [Fn. 35]]
The Court held that while the interest in preventing
corruption and the appearance of corruption is not compelling
enough to limit speech directly by limiting expenditures, it is a
sufficiently compelling interest to justify contribution
restrictions. [Fn. 36] The Court noted the absence of any
indication the contribution limits "would have any dramatic adverse
effect" on the funding of campaigns and political associations:
Given the important role of contributions in
financing political campaigns, contribution restrictions could have
a severe impact on political dialogue if the limitations prevented
candidates and political committees from amassing the resources
necessary for effective advocacy. There is no indication, however,
that the contribution limitations imposed by the Act would have any
dramatic adverse effect on the funding of campaigns and political
associations. The overall effect of the Act's contribution
ceilings is merely to require candidates and political committees
to raise funds from a greater number of persons and to compel
people who would otherwise contribute amounts greater than the
statutory limits to expend such funds on direct political
expression, rather than to reduce the total amount of money
potentially available to promote political expression.[ [Fn. 37]]
The Court then discussed the primary purpose of the 1974
amendments: "the prevention of corruption and the appearance of
corruption spawned by the real or imagined coercive influence of
large financial contributions on candidates' positions and on their
actions if elected to office." [Fn. 38]
It is unnecessary to look beyond the Act's
primary purpose -- to limit the actuality and appearance of
corruption resulting from large individual financial contributions
-- in order to find a constitutionally sufficient justification for
the $1,000 contribution limitation. Under a system of private
financing of elections, a candidate lacking immense personal or
family wealth must depend on financial contributions from others
to provide the resources necessary to conduct a successful
campaign. The increasing importance of the communications media
and sophisticated mass-mailing and polling operations to effective
campaigning make the raising of large sums of money an ever more
essential ingredient of an effective candidacy. To the extent that
large contributions are given to secure a political quid pro quo
from current and potential office holders, the integrity of our
system of representative democracy is undermined. . . .
Of almost equal concern as the danger of
actual quid pro quo arrangements is the impact of the appearance of
corruption stemming from public awareness of the opportunities for
abuse inherent in a regime of large individual financial
contributions. . . . Here . . . Congress could legitimately
conclude that the avoidance of the appearance of improper influence
"is also critical . . . if confidence in the system of
representative Government is not to be eroded to a disastrous
extent."[ [Fn. 39]]
The Court also rejected contentions that other less
restrictive means -- bribery laws and disclosure requirements --
existed. [Fn. 40] "Congress was surely entitled," the Court said,
to view contribution ceilings as "a necessary legislative
concomitant" for dealing with even disclosed contributions. [Fn.
41]
The Court concluded that the $1,000 contribution ceiling
was valid, and noted: "Significantly, the Act's contribution
limitations in themselves do not undermine to any material degree
the potential for robust and effective discussion of candidates and
campaign issues by individual citizens, associations, the
institutional press, candidates, and political parties." [Fn. 42]
The Court similarly rejected challenges to a $5,000 limitation on
political committees' contributions, a limitation on volunteers'
incidental expenses, and a $25,000 annual limitation on
individuals' total contributions. [Fn. 43]
The Buckley Court set out three potential outer limits on
contribution restrictions. First, it noted that "[g]iven the
important role of contributions in financing political campaigns,
contribution restrictions could have a severe impact on political
dialogue if the limitations prevented candidates and political
committees from amassing the resources necessary for effective
advocacy." [Fn. 44] Restrictions preventing "effective advocacy"
would directly impact speech, and therefore would be invalid.
Second, the Court warned that at some level contribution limits
would become so low that "distinctions in degree" between limits
would become "differences in kind." [Fn. 45] Third, it approved
the limits intended to prevent corruption through "large"
contributions, but warned that a statute barring contributions that
were not "large" would be presumptively overbroad and thus invalid.
[Fn. 46]
2. After Buckley
Since deciding Buckley, the Court has fleshed out its
implications. The Court has invalidated some restrictions, finding
no danger of corruption in independent expenditures by political
action committees (PACs) [Fn. 47] or political parties, [Fn. 48] or
in individual contributions relating to initiative campaigns, where
there is no danger of an improper quid pro quo. [Fn. 49] The Court
has upheld restrictions on indirect contributions to candidates,
such as contributions to PACs. [Fn. 50] It has also rejected
speech-restrictive campaign reforms whose only purpose was to lower
the cost of elections. [Fn. 51]
Its decisions have closely examined campaign restrictions
on various organizations. Long before Buckley, federal law had
prohibited contributions and expenditures by corporations and labor
organizations. [Fn. 52] Post-Buckley decisions narrowed the
permissibility of such restrictions. In 1978 the Court reaffirmed
the corporate right to speak and invalidated restrictions on
corporate expenditures relating to ballot initiatives. [Fn. 53] It
reasoned that corporate speech, like individual speech, "furthers
the societal interest in the 'free flow of commercial
information.'" [Fn. 54]
In 1986, in Federal Election Comm'n v. Massachusetts
Citizens for Life (MCFL), the Supreme Court declared that some
nonbusiness, political corporations are protected from campaign
finance limitations. [Fn. 55] Because the corporation involved
there, Massachusetts Citizens for Life (MCFL), had been formed to
promote political ideas, had no shareholders, and was independent
from the influence of business corporations, the Court reasoned
that MCFL's political expenditures did not pose the same dangers as
those of a typical corporation. [Fn. 56]
In 1990, in Austin v. Michigan Chamber of Commerce, the
Supreme Court upheld the application of a state corporate campaign
expenditure ban to a nonprofit corporation. [Fn. 57] Its rationale
-- that corporations' "unique state-conferred corporate structure
that facilitates the amassing of large treasuries" poses a danger
of corruption -- announced a second model for potential political
corruption which justifies regulation of political speech. [Fn. 58]
Austin preserved, however, the exception for nonbusiness, political
corporations that meet the three criteria announced in MCFL. [Fn.
59]
These cases leave us with a jurisprudence based on the
threat of corruption and the appearance of corruption, and
dependent on case-specific analysis. Speech relating to ballot
initiatives (where quid pro quo corruption is not a significant
danger) is entirely protected. [Fn. 60] In campaigns for political
office, individual speech is protected to the extent it is
independent and poses no danger of quid pro quo arrangements;
contributions and coordinated expenditures are subject to
regulation. Corporations that meet special nonbusiness criteria
(as per MCFL) pose no danger of corruption, and have rights similar
to those of individuals. But corporations that do not meet those
criteria are -- given the threat of corruption their state-created
advantages pose -- completely subject to regulation.
We should note here that AkCLU would have us apply a
strict "real harm" standard, over and above the "compelling
interest-narrowly tailored" standard. AkCLU argues that "the
Supreme Court -- and all other courts -- require a threshold
showing that a proposed restriction on First Amendment rights is
justified by evidence of 'real harm' of a constitutionally
cognizable interest . . . ."
The Supreme Court articulated this threshold test in
Turner Broadcasting System, Inc. v. FCC:
When the government defends a regulation on
speech as a means to redress past harms or prevent anticipated
harms, it must do more than simply "posit the existence of the
disease sought to be cured." It must demonstrate that the recited
harms are real, not merely conjectural, and that the regulation
will in fact alleviate these harms in a direct and material way.[[Fn. 61]]
But the Court tempered that statement:
We agree that courts must accord substantial
deference to the predictive judgments of Congress. Sound
policymaking often requires legislators to forecast future events
and to anticipate the likely impact of these events based on
deductions and inferences for which complete empirical support may
be unavailable. . . . That Congress' predictive judgments are
entitled to substantial deference does not mean, however, that they
are insulated from meaningful judicial review altogether.[ [Fn. 62]]
This standard of review, said the Court,
is to assure that, in formulating its
judgments, Congress has drawn reasonable inferences based on
substantial evidence. . . . "[W]hen trenching on first amendment
interests, even incidentally, the government must be able to adduce
either empirical support or at least sound reasoning on behalf of
its measures."[ [Fn. 63]]
We believe the real harm test does not require exhaustive
proof of corruption in this context, but merely, in the words of
the Court, "empirical support or at least sound reasoning" in favor
of the measures defended.
We turn now to those provisions of the Act specifically
challenged by AkCLU.
C. Ban on Independent Expenditures by "Non-group" Entities;
AS 15.13.135
The Act bans any entity from making independent
expenditures [Fn. 64] to support or oppose a candidate for state
office unless the entity qualifies as a "group." [Fn. 65] The
definition of "group" in AS 15.13.135 effectively precludes
business corporations, labor organizations, and other entities from
making such expenditures. [Fn. 66]
AkCLU and Amicus Alaska State Chamber of Commerce argue
that the Act as a whole, and in part through AS 15.13.135,
unconstitutionally interferes with the political speech of
corporations, labor unions, unincorporated organizations, the
Chamber, and its members by banning or limiting their independent
expenditures and campaign contributions. AkCLU claims that the
State has not articulated a compelling interest and has offered no
evidence of "real harm" justifying any restraint on speech, and
that the State's evidence of corruption is little more than a
discussion of the amounts corporations contributed before the Act
became effective. It asserts that the State's desire to limit
corporations' disproportionate influence reflects the discredited
"level playing field" motive. It argues that the independent
expenditures ban cannot satisfy federal law because Alaska law does
not permit alternative participation by business and labor
entities. AkCLU notes, for example, that federal law allows
corporations and other entities to make unlimited contributions to
political parties to use in general party activities. [Fn. 67]
AkCLU also argues that Alaska law restricts non-group "issue
advocacy."
The State, relying on Austin, argues that the expenditure
prohibition is justified by the need to avoid the "disproportionate
impact" non-group entities would have on the political process.
Citing Austin [Fn. 68] and Brookings Institution scholar Daniel
Ortiz, [Fn. 69] the State argues that while the Supreme Court has
characterized the interest as one of preventing a form of
corruption, "the interest is actually an interest in preventing the
corporate voice from overwhelming individuals' voices, i.e., in
leveling the playing field."
The State also argues that the expenditure prohibition is
needed to prevent these entities from avoiding the contribution
prohibition, contained in AS 15.13.074(f) and discussed below, that
also applies to them. It argues that courts have upheld restraints
on union and corporate expenditures in candidate elections, and it
minimizes the impact of the ban by arguing that these entities
still have ample alternatives for political expression. It
responds to the overbreadth issue by arguing that APOC has
prohibited independent expenditures for or against candidates by
corporations or labor organizations using corporate or union
treasury funds. [Fn. 70] It argues that in cases involving issue-
oriented nonprofit corporations, courts apply a narrow construction
to avoid any constitutional defect.
Absent meaningful argument tracing the cumulative effect
of the Act's limitations on independent expenditures and
contributions of "non-group" entities, we cannot assess exactly how
these restraints function together, and how they differ in actual,
real-world effect from restrictions found in the Federal Election
Campaign Act or the Michigan statutes discussed in Austin. Given
the Supreme Court's distinction between independent expenditures
and contributions, [Fn. 71] we deal here with these provisions
separately, and first address AS 15.13.135 because the First
Amendment gives greater protection to independent expenditures.
1. Corporations and labor unions
Our review of AS 15.13.135 requires us to return to
Austin. Restraints on campaign expenditures by corporations and
labor unions have long been part of federal law, and have long been
upheld. In Austin, the Supreme Court upheld an independent
expenditure ban as applied to a nonprofit corporation, the Michigan
State Chamber of Commerce. [Fn. 72] Because the Michigan statute
permitted an alternative method for making expenditures, through
"separate segregated funds," the Court held that the restriction
was narrowly tailored. [Fn. 73] It based its holding on "'the
compelling governmental interest in preventing corruption [from]
political war chests funneled through the corporate form.'" [Fn.
74] The Court determined that the special "state-created
advantages" of the corporate form allow corporations to amass large
sums of money, potentially giving them "an unfair advantage in the
political marketplace." [Fn. 75]
The Court reiterated its explanation from MCFL that the
political advantage of corporations is
unfair because "[t]he resources in the
treasury of a business corporation . . . are not an indication of
popular support for the corporation's political ideas. They
reflect instead the economically motivated decisions of investors
and customers. The availability of these resources may make a
corporation a formidable political presence, even though the power
of the corporation may be no reflection of the power of its
ideas."[ [Fn. 76]]
The Michigan State Chamber argued that concern about corporate
domination was insufficient to justify restricting independent
expenditures. The Austin Court noted that in First National Bank
v. Bellotti, it had recognized that a legislature might demonstrate
a danger of real or apparent corruption posed by corporate
expenditures made to influence candidate elections. [Fn. 77] The
Austin Court then noted that the danger of financial quid pro quo
corruption is not the only possible justification for restricting
independent expenditures:
Regardless of whether this danger of
"financial quid pro quo" corruption may be sufficient to justify a
restriction on independent expenditures, Michigan's regulation aims
at a different type of corruption in the political arena: the
corrosive and distorting effects of immense aggregations of wealth
that are accumulated with the help of the corporate form and that
have little or no correlation to the public's support for the
corporation's political ideas.[ [Fn. 78]]
The Court thus identified a second way in which the political
process may be corrupted: through the disproportionate political
influence corporate wealth can have because it bears no necessary
relationship to the actual public support for the corporation's
political views. This potential for distortion, rather than any
actual or apparent danger of quid pro quo corruption, provided the
threat that justified the Michigan statute in the Court's eyes.
The Court has not retreated from its analysis in Austin.
Applying Austin, we must first determine whether a
"compelling state interest" justifies any restriction on non-group
entities' independent expenditures in campaigns for elected office.
The State introduced substantial evidence -- discussed in
Part II -- generally relating to corruption and the appearance of
corruption. Some of the State's evidence discussing both
expenditures and contributions confirms the disproportionate
influence of corporate and labor union participation recognized in
Austin.
For example, Larry Makinson states in Open Secrets that
the top fifty contributors (not including political parties)
donated about a third of the dollars received by Alaska legislative
candidates in the 1986 election. [Fn. 79] These fifty consisted of
twenty-one corporations, nine labor unions, eight PACs and trade
associations, six law and lobbying firms, and six individuals. [Fn.
80]
Former Alaska Governor Steve Cowper affied that under the
old rules "[c]ontributions were bundled by corporations and unions
from officers and employees associated with them so that greater
amounts were given to candidates thereby increasing the amount
given to a particular candidate and increasing the influence of the
core contributor." He also stated that "[t]hese business entities
are given a special ability to accumulate money for business
purposes . . . . Because of the wealth of unions and corporations,
they can obtain more influence over elected officials than the
individuals who elect them."
An Alaska Public Interest Research Group (AKPIRG) report
claimed to show that "business interests control over half of
campaign contributions" to candidates. [Fn. 81] This did not, the
report said, consider "the fact that donations to political parties
are largely dominated by business." [Fn. 82]
APOC data supported the disproportionate-influence theory
by demonstrating that the vast majority of donations to the House
Republican Majority Fund in 1996 was made by corporations, trade
associations, or their PACs.
In 1989 four of the five APOC members supported bans on
contributions by PACs, unions, and corporations. They explained
their stance under the theory that "apart from political parties,
only those who may vote should be entitled to contribute to
candidates" to minimize the appearance of "special influence" by
"special interests."
The State introduced the proposed campaign finance
initiative and affidavits relating to the drive to place it on the
ballot in 1996. As noted in Part II, the initiative contained a
finding that "[o]rganized special interests are responsible for
raising a significant portion of all campaign funds, and may
thereby gain an undue influence over campaigns and elected
officials, particularly incumbents." [Fn. 83]
No evidence regarding business corporations seems
necessary. We think the reasoning underlying Austin resolved that
issue as a matter of law. And it is equally clear that labor
organizations may be barred from making independent expenditures in
candidate campaigns. [Fn. 84] The Court considered and upheld the
constitutionality of the segregation requirements as they applied
to labor unions. [Fn. 85] We therefore hold that the State has a
compelling interest that justifies applying AS 15.13.135 to
business corporations and labor unions.
2. Other non-group entities
But the evidence discussed above and in Parts II and
III.D of this opinion and the other evidence introduced in the
superior court does not directly establish whether AS 15.13.135
permissibly may be applied to entities other than business
corporations and labor unions.
The Supreme Court appears to have recognized that unions
and corporations are not the only organizations potentially subject
to treatment different from that accorded individuals. In Federal
Election Comm'n v. National Right to Work Committee, the Court
noted that "there is no reason why [the governmental interest in
preventing actual corruption and the appearance of corruption of
elected representatives] may not in this case be accomplished by
treating unions, corporations, and similar organizations
differently from individuals." [Fn. 86] In MCFL, the Court noted
that corporations are "by far the most prominent example of
entities that enjoy legal advantages enhancing their ability to
accumulate wealth." [Fn. 87]
Although AS 15.13.135 clearly includes organizations that
are not business corporations or labor organizations, the parties
have not meaningfully discussed the differences in the
organizational forms of "non-group" entities. The Alaska statutes
permit various forms of unincorporated organizations. [Fn. 88]
Some, such as limited partnerships, have many of the attributes of
corporations. A general partnership or limited liability
partnership has some of these attributes, if not perpetual life.
These organizations, like corporations, can amass large treasuries
from their business operations and the capital contributions of
their investors. And controlling partners or general partners
might vote to spend some of the business treasury to support or
oppose state election candidates over the objections of minority or
limited partners, who, like corporate shareholders, have a stake in
the business but no effective voice.
Some aspects of the corporate form are unique, as Austin
seems to recognize. But we conclude that the corporate form is not
determinative. Nor is size determinative, because the Court has
declined to distinguish between widely-held and closely-held
corporations. [Fn. 89] Equally non-determinative is actual wealth,
because the Court has reasoned that it is the potential for unfair
influence that justifies regulation. [Fn. 90] For instance, in
MCFL the Court invalidated an independent expenditure ban as it
applied to a small, nonprofit corporation that had purely political
purposes. [Fn. 91] The Court reasoned:
Regulation of corporate political activity
thus has reflected concern not about use of the corporate form per
se, but about the potential for unfair deployment of wealth for
political purposes. Groups such as MCFL, however, do not pose that
danger of corruption. MCFL was formed to disseminate political
ideas, not to amass capital.[ [Fn. 92]]
We agree with AkCLU that AS 15.13.135 as written embraces
"non-group" entities whose speech may not be permissibly restricted
by an expenditure prohibition. [Fn. 93] But we cannot fully
resolve the extent of any statutory overbreadth in this appeal in
context of particular organizational forms or specific entities on
the basis of the arguments and record before us.
We decline to strike down the statute on the theory the
expenditure ban is overbroad as written. We choose instead to read
the statute narrowly in order to prevent it from applying to "non-
group" entities whose speech is constitutionally protected. [Fn.
94] Entities which are neither labor unions nor corporations are
subject to expenditure bans only to the extent they are within the
class of organizations potentially able to amass great wealth
through state-created advantages. [Fn. 95] We therefore read AS
15.13.135 in accordance with the three conditions Austin discussed
in describing the MCFL exception. Thus, entities must be exempted
from AS 15.13.135's ban if (1) they cannot participate in business
activities, (2) they have no shareholders who have a claim on
corporate earnings, and (3) they are independent from the influence
of business corporations. [Fn. 96]
AkCLU asserts that exemptions may not be sufficient to
avoid chilling speech because even entities that meet these
criteria for exemption might be afraid to make expenditures for
fear of prosecution. But we conclude that those criteria, approved
by the Supreme Court, are sufficiently definite to provide
meaningful guidance to would-be contributors. We also think it
wise to resolve the ultimate boundaries of this statutory
prohibition in the context of legal challenges asserting specific
facts concerning particular organizations or types of
organizations.
This narrowed construction of the prohibition leaves
ample room for individuals involved in organizations to engage in
political speech.
AkCLU argues, in essence, that this prohibition, in
conjunction with other provisions -- such as AS 15.13.074(f) --
leaves affected entities with no avenues for political speech. It
suggests that there is no opportunity for such entities to
establish segregated funds, in comparison with the Michigan statute
discussed in Austin. It claims that these restraints on
independent expenditures and candidate contributions are far more
restrictive than those imposed by federal law, which it notes
permits corporations and other entities to make unlimited
contributions to a political party for use in general party
activities. [Fn. 97] The Alaska State Chamber of Commerce notes
that the Michigan statute permitted corporations to form PACs.
But in our view, nothing prevents individual organizers
of non-group entities from either forming a "group" to collect
contributions and make expenditures, or soliciting individual
contributions from other members without relying on treasury funds.
Further, it appears that non-group entities may communicate their
endorsements to their employees or members. [Fn. 98] The State
also contends that because organized entities meet the definition
of "person" in AS 01.10.060(8), they may make contributions and
expenditures for ballot propositions or questions even though they
may not make them for or against candidates under AS 15.13.135 and
AS 15.13.065.
We note too that the only remedy a dissident participant
may have in such business entities, regardless of their size, when
disagreeing with use of the entity's wealth for political speech,
is potentially ruinous: withdrawal from the organization. In
National Right to Work Committee, the Court upheld a statute
barring contributions or expenditures by corporations, labor
unions, and national banks in connection with federal elections, in
part because it protected individuals who have paid money into the
entity for purposes "other than the support of candidates from
having that money used to support political candidates to whom they
may be opposed." [Fn. 99] In Austin, the Court noted that because
members have a significant incentive to continue their financial
support for the Michigan State Chamber whatever their opinion of
its political agenda, disclosure will not ensure that the funds in
the Chamber's treasury correspond to members' support for its
ideas. [Fn. 100]
Because the expenditure ban serves all these myriad
purposes in a narrowly tailored fashion, we reverse the superior
court's invalidation of AS 15.13.135.
D. Contribution Restrictions
1. Contribution bans
a. Bans on contributions by "non-group" entities;
AS 15.13.074(f)
The Act prohibits a "corporation, company, partnership,
firm, association, organization, business trust or surety, [Fn.
101] [or] labor union" from contributing to a candidate or "group."
[Fn. 102]
This outright ban on contributions directly implicates
both political speech rights and associational rights of would-be
contributors.
But, in light of the facts discussed in Part II and
III.C, we hold that Alaska has a substantial governmental interest
in campaign finance reform that justifies some restriction on First
Amendment freedoms. We conclude that the considerations which
justify the ban on independent expenditures by "non-group" entities
(see Part III.C) also justify this contribution ban.
As we noted in Part III.C.2, the list of "non-group"
entities subject to the ban is overbroad, and must be read in a
manner consistent with the constitution. We again agree with the
State's argument that such bans are potentially valid for reasons
discussed in Austin: the "state-created advantages" of the
corporate form create "an unfair advantage in the political
marketplace." [Fn. 103] Organizations that do not benefit from
such advantages -- most clearly, entities like MCFL [Fn. 104] --
are not subject to such restrictions. Entities which are neither
labor unions nor corporations are subject to contribution bans only
to the extent they are within the class of organizations
potentially able to amass great wealth through state-created
advantages. [Fn. 105] We believe the permissible scope of these
bans is best determined in context of fact- and class-specific
litigation, [Fn. 106] especially given the lack of briefing on the
issue here. We therefore do not now attempt to list which types of
entities the statute may permissibly affect. [Fn. 107]
AkCLU and the Chamber both contend that the restrictions
on contributions and expenditures by corporations and labor unions,
considered together, are so extreme as to constitute bans on issue
advocacy. We disagree. Alaska Statute 15.13.135 (under our
restricted interpretation) bars corporations and corporation-like
entities only from making "independent expenditure[s] supporting or
opposing a candidate for election to public office." Under this
rule, if "explicit words of advocacy of election or defeat of a
clearly identified candidate" [Fn. 108] are required to show
support or opposition, issue advocacy will not be affected by the
Act. We therefore reject AkCLU's argument that Austin must be read
narrowly and that the State has offered no evidence justifying the
contribution ban.
We also reject the Chamber's assertion that the ban is
overbroad because it includes organizations that are not wealthy.
Because it is the potential for corruption or the appearance of
corruption that justifies the restraint, the actual wealth of a
given organization is irrelevant. It is enough that the entity
operate in a form which has benefitted from "state-created
advantages" that give it "an unfair advantage in the political
marketplace." [Fn. 109]
b. Restrictions on contributions by nonresidents;
AS 15.13.072(a), (e), (f)
Alaska Statute 15.13.072 prohibits a candidate, group, or
political party from soliciting or accepting contributions from
nonresident individuals except to the extent that all the
contributions received from nonresidents do not exceed specified
limits. [Fn. 110] It also prohibits a candidate from soliciting or
accepting any contributions from a group which is organized under
the laws of another state, which is resident in another state, or
whose participants are not Alaska residents when the contribution
is made. [Fn. 111] Consequently, nonresident individuals may make
contributions to a candidate subject to the sliding limitations of
AS 15.13.072(e) and to a group or political party subject to the
ten-percent limitation of AS 15.13.072(f); nonresident groups may
make no contributions at all. Nonresident individuals and groups
may make unlimited independent expenditures.
These restrictions on the speech of nonresidents must
meet the "narrowly tailored-compelling interest" test discussed in
Part III.B. In justification, the State argues that these
restrictions "prevent nonresidents from dominating the process,"
and that "[b]y restricting the influence of nonresidents . . . the
reforms promote the valid state goal of encouraging voter
participation in campaigns." The State refers us to no specific
evidence of corruption or the appearance of corruption caused by
out-of-state contributions, and does not contend that quid pro quo
corruption justifies these restraints.
Applicable to this issue is the general evidence of the
influence of money and political system corruption and appearance
of corruption. [Fn. 112] In addition, two former Alaska governors
submitted affidavits in which they affied that contributions from
outside the state create serious loyalty problems. Former Governor
Walter Hickel stated that "whenever a candidate has to seek
donations from outside the state, the candidate is buying a
potential conflict of interest." Former Governor Jay Hammond
stated that
[t]he necessity of having to raise substantial
sums of money from non-Alaska resident contributors discourages
many qualified Alaskans from becoming candidates. And it taints
those who do. How can the average Alaska voter believe that a
candidate who has accepted thousands of dollars from non-Alaska
resident contributors who have pecuniary interests at stake in the
votes the candidate will cast if he or she is elected is not
obligated to the contributors as much as he or she is to the
voters? And there is an unfortunate basis in fact for that
perception. Once elected, it is all too easy for candidates to
accommodate mores to money, particularly since non-Alaska resident
contributors do not ask the candidates that their money has helped
to elect to act unlawfully, and most issues of public importance
are rarely black and white. It is amazing how a flash of green can
help clarify an ambiguous policy choice.
The State cites O'Callaghan v. State [Fn. 113] and Vote
Choice, Inc. v. DiStefano [Fn. 114] in defense of the restrictions.
But neither case certifies nonresident domination or enhanced voter
participation as a compelling interest. O'Callaghan discusses a
Wisconsin opinion holding that an interest in voter participation
is compelling, but the United States Supreme Court reversed that
ruling on other grounds. [Fn. 115] Vote Choice portrays
facilitated communication between the candidate and the electorate
as only a "valid" interest. [Fn. 116] The Supreme Court has never
held that fear of nonresident domination or a goal of enhanced
voter participation is a compelling state interest justifying
restraints on campaign finance.
AkCLU argues that absent "some evidence showing the
corruptive influence of non-resident contributions, there can be no
legitimate reason to preclude them from participating in the
election process." It claims that these restraints are merely
intended to "level the playing field," an insufficient
justification. Because the contribution limits applicable to
residents also apply to nonresidents, [Fn. 117] AkCLU contends that
the State must show special corruption caused by out-of-state
contributions in order to uphold additional restrictions on
nonresidents. It cites evidence discussing contributions by out-
of-state groups as minimal, but the sources cited use a far less
expansive definition for nonresidence than the statute, making the
evidence an unreliable barometer of the statute's impact.
AkCLU relies on VanNatta v. Keisling. [Fn. 118] The
Ninth Circuit, applying a "less-than-strict, rigorous scrutiny,"
there struck down an Oregon constitutional amendment that
restricted out-of-district contributions made to state candidates.
[Fn. 119] The Ninth Circuit unanimously held that the amendment
was not closely drawn to advance the goal of reducing corruption
because it banned all out-of-district donations, regardless of
size. [Fn. 120] But Judge Brunetti also concluded in his
dissenting opinion that "Oregon has a sufficiently important
interest in protecting its republican form of government," [Fn.
121] reasoning that
[i]f states have flexibility in determining
who is a resident for voting purposes and in taking steps to make
sure non-residents do not have access to some state services, it
follows that states also have a strong interest in making sure that
elections are decided by those who vote. The Supreme Court has
come very close to saying as much in Shaw, Holt, and Austin. With
the increasing importance of fundraising in elections generally, .
. . and in Oregon in particular, elections are for all intents and
purposes are [sic] often decided well before any resident steps
into a voting booth.[ [Fn. 122]]
Although Judge Brunetti's analysis is intriguing and we
have recognized a similar theme in a different context, [Fn. 123]
we need not consider it here, because we think VanNatta is
distinguishable on its facts. Oregon's out-of-district
restrictions applied to both nonresidents and residents of Oregon.
[Fn. 124] But Alaska's challenged provisions apply only to
nonresidents of Alaska, and do not limit speech of those most
likely to be directly affected by the outcome of a campaign for
state office -- Alaska residents regardless of what district they
live in. Also, Alaska is not contiguous to any other state, and
the general state residence requirement does not have the same
impact on nonresidents that Oregon's district-specific restrictions
had.
Further, we respectfully disagree with the VanNatta
court's discussion of "largeness," even though Alaska's
restrictions do not directly distinguish based on the size of the
individual contributions. Alaska's restrictions attempt "to ensure
the integrity of political structures and processes." [Fn. 125]
They are aimed not at very large individual contributions, by which
a single contributor can influence a candidate, but at cumulatively
vast out-of-state contributions. Austin recognized this sort of
corrupting influence. [Fn. 126] Further, the limits here are
closely drawn to achieve the goal of preventing non-resident
contributors from drowning out the voices of Alaska residents.
Though the State introduced evidence of the extent of what it
called "out of state" contributions in recent elections, we are
uncertain of the value of the State's evidence. The Act's
limitation on nonresident groups applies, as noted above, to groups
whose participants are not Alaska residents at the time of the
contribution. [Fn. 127] No records of sufficient specificity have
been kept to show how many groups this might affect. We therefore
conclude the record contains no evidence relating to the potential
impact of this provision.
Alaska has a long history of both support from and
exploitation by nonresident interests. Its beauty and resources
have long been lightning rods for social, developmental, and
environmental interests. More than 100 years of experience,
stemming from days when Alaska was only a district and later a
territory without an elected governor or voting representation in
Congress, have inculcated deep suspicions of the motives and wisdom
of those who, from outside its borders, wish to remold Alaska and
its internal policies for dealing with social or resource issues.
Outside influence plays a legitimate part in Alaska politics, but
it is not one that Alaskans embrace without reservation. The Act's
restraints on nonresident contributions attempt to limit this
influence, and attempt to prevent elected officials from becoming
beholden to those influences. Through mass marketing and
solicitations, organizations can marshal vast numbers of
contributions by individuals. These nonresident contributions may
be individually modest, but can cumulatively overwhelm Alaskans'
political contributions. Without restraints, Alaska's elected
officials can be subjected to purchased or coerced influence which
is grossly disproportionate to the support nonresidents' views have
among the Alaska electorate, Alaska's contributors, and those most
intimately affected by elections, Alaska residents. These
restraints therefore limit the "potential for distortion." We hold
that this is a sufficiently compelling state interest. [Fn. 128]
Any question whether the dollar and percentage limits are unduly
low turns on a "difference in kind" analysis, and we do not read
the record to indicate that these limits in fact impinge on
nonresidents' speech or associational rights.
AkCLU also objects to the "tracing rule" of AS
15.13.072(f), which states that contributions from "individuals who
are not residents may not exceed 10 percent of total contributions"
made to groups or political parties in a given year. AkCLU also
asks that reporting requirements imposed on "non-resident" groups
be invalidated for overbreadth. Because AkCLU's brief has devoted
only five lines to these arguments, we decline to consider their
merits. These provisions are not so obviously invalid that we will
invalidate them based on the limited briefing before us.
c. Ban on registered lobbyists' out-of-district
contributions; AS 15.13.074(g)
Alaska Statute 15.13.074(g) prohibits a registered
lobbyist from contributing to legislative candidates in districts
outside the district in which the lobbyist is eligible to vote.
[Fn. 129]
The State contends that AS 15.13.074(g) reduces
corruption and the appearance of corruption, and argues that
lobbyists are like other persons whose contributions create
"special risks" of actual or apparent corruption. It asserts that
"greater risks of corruption attend lobbyists' special relationship
with elected officials."
AkCLU counters that the State has not demonstrated what
real harm is alleviated by the restriction and that the $500
individual contribution limit already prevents "large"
contributions that could corrupt. It claims the ban violates free
speech. (The heading in AkCLU's brief also asserts that this ban
violates lobbyists' rights to equal protection but because AkCLU
has not briefed this contention, we do not reach it.)
The State introduced evidence, through affidavits and a
survey commissioned by the state senate, of perceptions of the role
lobbyists play in political fund-raising. According to the survey,
fifty percent of registered lobbyists believe fund-raising pressure
by special interests is a "serious problem," because monied
interests get special access to and influence over legislators.
Eighty-seven percent of lobbyists said that the refusal
to make campaign contributions sometimes adversely affects
lobbying. Thirty-seven percent said that this happens frequently
and that lobbyists often give contributions "defensive[ly] to ward
off negative reactions and the loss of access."
The State submitted an Anchorage Daily News (ADN)
article, attached to the Frank affidavit, about one lobbyist's
settlement of campaign finance law violations. Frank's affidavit
also attached another article from an unspecified national journal
comparing lobbyist contributions to bribery of judges.
David Finkelstein affied that lobbyists serve as conduits
for the clients they serve. He stated that "the clear message"
lobbyists gave him as a legislator was that "I was expected to give
them special consideration." He recalled that large contributors
had an effect on some of his early votes.
The State also discussed APOC records that imply that
substantial risks of actual or perceived corruption attend
lobbyists' special relationship with elected officials. The
records concerned questionable financial relations between
legislators and lobbyists, including informal loan arrangements and
unreported lobbyist payment of air travel costs.
This evidence supports the State's assertion that
lobbyists' contributions are "especially susceptible to creating an
appearance of corruption." The State argues:
When in session, Alaska's legislature is
geographically isolated from the state's core population.
Lobbyists are, by definition, paid to influence administrative or
legislative action. AS 24.45.171(8). Their professional purpose,
coupled with their proximity to legislators during the legislative
session, makes them particularly susceptible to the perception that
they are buying access when they make contributions.
Based on this evidence we conclude that the State had a compelling
interest justifying some restraint on speech.
The next question is whether the challenged ban is
narrowly tailored to serve the purpose of preventing actual or
perceived corruption. Unlike most individuals, who are unlikely to
have any incentive to contribute to many of the candidates for the
fifty legislative seats at issue each general election, [Fn. 130]
a lobbyist has some incentive to contribute to candidates whose
election will place them in a position to introduce or thwart
legislation and to vote in committee or on the floor on matters of
professional interest to the lobbyist.
The cumulative effect of numerous $500 contributions by
a single lobbyist is substantial. By virtue of the lobbyist's
special role in the legislative system, his or her broad
distribution of campaign money creates a very real perception of
influence-buying. The diffusion of cash is all the more dangerous
because it has the potential to achieve influence with a
significant portion of sitting legislators. For example, in the
1990 election cycle, fifty-one lobbyists made 485 contributions
averaging $433 each, for a total of $210,047. Seventy-six
candidates received these contributions. Perhaps other
alternatives would have been effective in carrying out the State's
purpose, but the out-of-district ban draws a logical compromise
between lobbyists' private rights and their professional
obligations.
We also conclude that the restraint does not foreclose
lobbyists from engaging in political speech. As the State notes,
lobbyists retain other contribution avenues. For example, "[they]
may also participate in and contribute to 'groups' -- including
political parties -- which may contribute to any legislative
candidate." And they may make independent expenditures for any
legislative candidate.
Other courts have imposed campaign speech restrictions on
individuals based on their professions. The Vermont Supreme Court,
for example, upheld a lobbyist speech restriction four years ago in
Kimbell v. Hooper. [Fn. 131] There the court rejected a challenge
to a Vermont statute that prohibited contributions by registered
lobbyists to legislators while the legislature is in session. [Fn.
132] The court concluded that "[t]he legislature has chosen a
narrowly drawn measure to avoid a serious appearance of
impropriety, and we see no reason to strike that measure down."
[Fn. 133] In our view, lobbyists are similar to those
professionals whose contribution rights have been permissibly
restricted by federal and state law, because their contributions
create special risks of actual or apparent corruption. [Fn. 134]
While the State may not "burden substantially more speech
than is necessary to further the government's legitimate
interests," [Fn. 135] we conclude that the ban on out-of-district
lobbyist contributions is narrowly tailored to further the State's
compelling interest. We therefore uphold the ban on out-of-
district contributions by lobbyists.
2. Contribution limits
The Supreme Court has encapsulated the problem of judging
contribution limits: "'if it is satisfied that some limit on
contributions is necessary, a court has no scalpel to probe,
whether, say, a $2,000 ceiling might not serve as well as a
$1,000.' Such distinctions in degree become significant only when
they can be said to amount to differences in kind." [Fn. 136]
Another court observed that "every jurisdiction is sui generis, and
thus every campaign contribution limitation must be judged on its
own circumstances." [Fn. 137]
In addition to the evidence discussed in Parts II and
III.C, the State submitted evidence directly relating to the
influence of large contributions.
According to the Josephson Report survey, only eight
percent of lobbyists said no legislator can be influenced by
campaign contributions to take or withhold some significant
legislative action. Forty-seven percent said at least a quarter of
the legislature could be so influenced.
Michael Frank attached to his affidavit copies of
newspaper articles and columns to support his contention that
people are generally "fed up" with the corruption of the system as
it currently stands. These include: (1) an ADN editorial pointing
out the conflicts of interest on a tax issue faced by legislators
who received money from the oil industry. "It's absurd to believe
that any legislator can receive thousands of dollars from mighty
contributors and remain totally unaffected by it," the editorial
argues; (2) an ADN article about the proposed initiative, quoting
lobbyist Jerry Reinwand as saying "I can't imagine anything more
distasteful than the system we have now." The article also quotes
AKPIRG director Stephen Conn as criticizing the system for making
politicians beholden to large contributors, and as saying "[t]he
game seems rigged right from the beginning"; (3) an ADN editorial
column by Howard Weaver articulating the view that "[a]s the price
of politics gets higher, politicians are necessarily forced to pay
more attention to those who can give them money"; (4) an ADN
editorial criticizing a state senator who had dismissed the public
concern that contributions taint state politics as "a great
paranoid myth." The editorial mocked the senator's statement as
patently false; (5) an ADN column by Mike Doogan implying that
Governor Tony Knowles's stance on some issues is governed by the
fact that British Petroleum was a large contributor to Knowles's
political party, the Democratic Party; and (6) an ADN article
quoting David Finkelstein as saying, "It's obvious that much of
what goes on is buying influence, not influencing elections."
Some of the evidence implies that campaign contributions
actually corrupt. Larry Makinson's Open Secrets strongly implies
that an immense infusion of oil money into the Republican Party in
1986 brought about the demise of a North Slope tax proposal that
would have cost oil companies $100 million. [Fn. 138]
An AKPIRG report postulated in 1995 that candidates
considered election funding when passing bills that exempted cruise
lines from gambling and alcohol taxes, exempted price-setting
commercial fishermen from antitrust laws, repealed seafood
processing quality assurance plans, reduced oil royalties payable
to the state, and "slashed funding for consumer protection and
antitrust cases." [Fn. 139] The report author asserted that "only
the most naive would miss the connection between large
contributions and protection of interests." [Fn. 140]
Former Alaska Governor Steve Cowper affied that he
believes the current state of campaign finance breeds "cynicism and
distrust." "[T]here is very little practical difference," Cowper
affied, "between a large campaign contribution and a bribe." He
further stated that the public "generally understands that campaign
contributions are an important factor taken into consideration by
elected officials in every vote taken or decision made."
Former Alaska Governor Jay Hammond described an unusual
position he faced in his first senate term. Having accepted money
from oil interests, he felt compelled to vote against them just to
show he had not been bought. He ultimately voted against "Big
Oil," and "[a]lthough I like to think that I cast those votes based
on the merits of each bill," he said, "to this day I am not sure of
my true motivation."
David Finkelstein affied that while he resisted the
influence of big contributors on major bills, "I do recall that
large contributors had an effect on my vote" on some minor bills.
Charles Wohlforth, a member of the Anchorage Municipal
Assembly, affied that
. . . I have at times found it impossible
to dissect my own motives in voting on complex issues with
conflicting and incomplete information and faced by advocacy from
important contributors to my campaigns. Despite my best efforts
and particular concern about campaign finance reform I cannot with
complete confidence say I have never been influenced by campaign
contributions.
. . . I have developed the belief and the
working assumption that campaign contributions received and the
prospect of receiving future contributions often affects the
outcome of Assembly votes.
We conclude that the State's evidence demonstrated that
there is a legitimate concern about corruption or the appearance of
corruption, and the potential for resulting erosion of public
confidence in the electoral process. This evidence established the
existence of a compelling governmental interest justifying some
restrictions on local and state election campaign contributions.
The question is whether the contribution limits adopted in SB 191
are narrowly tailored or whether they unconstitutionally prevent
"effective advocacy" [Fn. 141] or represent "differences in kind."
[Fn. 142]
a. Limits on individuals' contributions; AS
15.13.070(b)
Individuals are prohibited by AS 15.13.070(b) from
contributing more than $500 per year to a candidate or to a "group"
that is not a political party, and from contributing more than
$5,000 per year to a political party. [Fn. 143] Prior to 1996,
Alaska's individual contribution limit was $1,000 per year. [Fn.
144]
The State defends these limits as necessary to "avoid the
risks of corruption and its appearance that large contributions
create, without interfering with the expressive and associational
aspects of contributing." The State acknowledges that to be held
valid, the limits cannot undermine "robust and effective" public
debate and must withstand strict scrutiny.
The State argues that federal law requires that each
jurisdiction's restrictions be judged based on the applicable
context. [Fn. 145] The State contends that deference to
legislative determinations is the general practice in such cases.
It relies on documents it filed in the superior court as proof that
the total amount contributed to candidates under the reforms has
not declined from pre-reform totals. The State would justify the
limits on contributions to groups and political parties as
preventing backdoor evasion of the candidate contribution limits.
AkCLU, on the other hand, argues that the $500 limit per
candidate is too sweeping, and insufficiently justified. It argues
that the initial limits authorized in Buckley were intended to
prevent "the problem of large campaign contributions -- the narrow
aspect of political association where the actuality and potential
for corruption had been identified." [Fn. 146] Not only are these
limits lower than needed to prevent corruption, AkCLU contends, but
the State has failed to demonstrate "real harm" caused by
contributions in the $500 to $1,000 range, given that the pre-
reform limit was $1,000.
AkCLU contends that the restriction merits no deference
to the legislature, given the high cost of elections in Alaska, and
the fact that, after adjustment for inflation, the Alaska limit is
only eight percent of the limit approved in Buckley in 1976.
According to AkCLU, the restriction is an impermissible "difference
in kind."
AkCLU also argues that the State's restrictions on
contributions to political parties are unnecessary and not narrowly
tailored. AkCLU contends that the State offers no evidence of
backdoor violations of the current limit, and that existing law, by
prohibiting laundering, already closes such loopholes.
In support of its cross-summary judgment motion, the
State introduced evidence to show that the reforms would not impede
the ability of candidates to run successful campaigns.
Robert Stern, of the Center for Governmental Studies,
examined past contributions and made predictions about the effects
of reform. He predicted that contributions would drop, but not so
much as to place a "substantial burden" on candidates. He
determined that house candidates would need only ninety-four
contributions of $500 to reach the median total successful
candidates raised for the 1990-96 elections. Following Stern's
statistics, senate candidates would require only 185 contributions
of $500 each to reach the median total successful candidates raised
for the 1990-96 elections. Likewise, candidates for governor would
need only 2,448 contributions of $500 to reach the median total
successful candidates reached during the 1990-94 elections. Stern
predicted that the off-year ban would impact incumbents more than
challengers. And he predicted that the ban on inter-candidate
transfers would have minimal effects.
Nadine Hargesheimer, a campaign staffer for two Fairbanks
mayoral candidates, affied that the reforms "did not materially
affect Mayor Hove's ability to raise enough money to run an
effective campaign" for that office in 1997. Despite the fact that
there were three fewer mayoral candidates in 1997, the amount
raised in that race was in fact about ten percent more than the
$148,228 candidates raised in 1991.
Harriet Drummond, a member of the Anchorage School Board,
affied that the reforms "had no substantial impact on my
fundraising" in her 1997 campaign for re-election.
Thomas Begich, a campaign consultant, affied that no
specific amount of money is required to run a viable campaign; he
stated that "I believe it is clear that competitive campaigns can
be run in Alaska under the present campaign finance reform law."
He added that "while a campaign's competitiveness does not appear
to be affected" by the reforms' restrictions, "the proportional
impact of an individual's influence on the election process over
that of a non-individual (PAC, business or labor union) has
increased."
AkCLU opposed this evidence in the summary judgment
proceeding with one affidavit. James Lottsfeldt, an advertising
firm account manager, affied that the reforms "will so severely
limit the available resources to candidates that, except in unusual
circumstances, the limitations will materially impair a candidate's
ability to conduct an effective campaign." Such a system will,
Lottsfeldt stated, benefit individuals with enough private wealth
to campaign without contributions.
To support its motion for a preliminary injunction, AkCLU
submitted two other affidavits.
Tom McKay, Chairman of the Republican Party of Alaska,
affied that the Act "substantially impairs the Republican Party's
ability to raise sufficient funds to support its activities." He
cited a drop in fundraising from $362,525 in 1995 to $119,917 in
1997 (both non-election years).
Gary Jacobson, a professor of political science at the
University of California, San Diego, disputed the relevance of the
Drummond and Hargesheimer affidavits. He maintained that analyses
of effects based on municipal election data are not valid for
elections to the state legislature.
Both sides cite case law to support their contentions.
So far as we are aware, no court has invalidated individual-to-
candidate contribution limits similar to those at issue here on the
ground they are per se unconstitutional. [Fn. 147] Rather, the
Supreme Court upheld as a matter of law a $5,000 limit on
individuals' contributions to multicandidate political committees.
[Fn. 148] And in Buckley, it upheld the FECA $1,000 limit on
individuals' contributions to candidates, even though the FECA also
imposed a $25,000 cumulative annual limit on an individual's
contributions. [Fn. 149] The Sixth Circuit affirmed a grant of
summary judgment approving a $1,000 limit on contributions by
individuals to a single candidate in an election year. [Fn. 150]
The Eighth Circuit invalidated a $100 contribution limit on the
basis of undisputed facts that indicated the limit was too low to
allow meaningful political speech in campaigns. [Fn. 151] The
Oregon Supreme Court invalidated a $500 limit on individual
campaign contributions because the legislation did not specify any
harm it was intended to fix. [Fn. 152]
Other courts, examining contribution limits following
trial, have considered a variety of factors to determine whether a
particular limit is constitutionally permissible. In Carver v.
Nixon, the Eighth Circuit considered multiple quantitative factors
-- including the cost of elections and the percentages of small-
contribution donors -- to find that the $100-$300 limits there in
issue were invalid because they entailed a "difference in kind."
[Fn. 153] In National Black Police Ass'n v. District of Columbia
Board of Elections and Ethics, the court invalidated $100 and $50
limits as too restrictive of candidate speech after a full trial.
[Fn. 154]
In Montana Right to Life Ass'n v. Eddleman, the district
court held that "a determination of what constitutes a 'large'
contribution associated with campaign corruption or the appearance
of corruption is based upon the particular facts and circumstances
of the campaign at issue." [Fn. 155]
The same sentiment was expressed in California Prolife
Council v. Scully, where the district court held that "[t]he facts
pertinent to each jurisdiction, such as the size of the district,
the cost of media, printing, staff support, news media coverage,
and the divergent provisions of the various statutes and ordinances
undermines the value of crude comparisons." [Fn. 156]
(1) Individual contributions to candidates
The affidavits and other documents filed by the State in
the superior court support a finding that the contribution limits
do not place a substantial burden on the ability of candidates to
run competitive local or state election campaigns. The opinions of
the State's experts also support that conclusion. Facts adduced by
the State memorializing experience in local and statewide races
support the experts' opinions. The excerpt contains a summary of
candidates' disclosure statements indicating that the total amount
of contributions has not declined significantly since enactment of
SB 191. The record suggests that the contribution totals for 1998,
the first election year after the reforms took effect, exceed the
comparable 1996 campaign totals.
As we noted above, AkCLU offered two affidavits to
support its injunction request and one to support its summary
judgment argument. They generally assert that the Act's provisions
impair fund-raising and advocacy, but do not explain the impact of
particular provisions of the Act, including these contribution
limits. Nor do they discuss the effect of the two temporal
limitations that we hold to be invalid in Part III.D.3. Even
standing alone, the affidavits would not support findings that the
contribution limits are different in kind than Alaska's preexisting
$1,000 limit or the limit the Supreme Court approved in Buckley, or
are any lower than the lowest limit the Supreme Court would approve
for state election campaigns. Buckley did not hold that $1,000 was
the lowest individual contribution limit that would be consistent
with the First Amendment. [Fn. 157] Moreover, Buckley dealt only
with the FECA, which governs campaigns for federal office. [Fn.
158] It is not apparent that a campaign for local or state elected
office is as complex or potentially expensive (given the numbers of
voters involved) as a campaign for the federal offices of
president, vice-president, senator, or representative. Buckley did
not intimate that a limit of $1,000 was the lowest limit
permissible for state elections. Nor can the Act's provisions be
readily compared with FECA's. Some provisions have no counterpart.
FECA, for example, imposes a $25,000 cumulative annual limit on
individual contributors, [Fn. 159] intuitively lessening a
justification for a federal candidate limit lower than $1,000.
Other courts have noted that it is important to look to
the circumstances of the elections to determine what limitations
are and are not constitutionally permissible. But absent evidence
that diminished contribution limits have impaired effective
advocacy or are qualitatively different in kind, we see no
justification for a trial. The United States Supreme Court has
made it clear that a court is not to substitute its judgment for
the legislature's by wielding a scalpel the legislature chose to
forego. That the legislature may not have "fine-tuned" the Act
does not justify its invalidation. The evidence the State
introduced is, we find, sufficiently compelling to justify the $500
limitation on individual contributions for electoral campaigns in
Alaska. We therefore uphold the limitation.
In doing so, we necessarily reject AkCLU's arguments that
the new limits do not address the real danger: "large"
contributions. The Supreme Court rejected a similar argument in
Buckley. [Fn. 160] We also reject AkCLU's argument that, because
the new limits fail to recognize the high cost of Alaska elections
and are, when adjusted for inflation, only eight percent of the
limit approved in Buckley in 1976, the new limits are invalid as a
matter of law. The Supreme Court has not held contribution limits
to be invalid on a theory that they fail to keep pace with
inflation.
(2) Individual contributions to groups and
political parties
The State argues that limits on individuals'
contributions to groups and political parties are also reasonable
and that such limits are necessary to protect the "integrity" of
the limit on individuals' contributions to candidates by closing
loopholes. We conclude that preventing individuals from channeling
their contributions through a group or a party, and thus avoiding
the limit on individuals' contributions to candidates, is a valid
purpose. We also conclude that the $5,000 limit is not so patently
"different in kind" as to justify invalidation. We uphold the
limit on individual contributions to groups or political parties,
keeping in mind the Court's words in Buckley: "If it is satisfied
that some limit on contributions is necessary, a court has no
scalpel to probe, whether, say, a $2,000 ceiling might not serve as
well as $1,000." [Fn. 161]
b. Limits on contributions by groups; AS
15.13.070(c)
Under AS 15.13.070(c), a "group" that is not a political
party may not contribute more than $1,000 per year to a candidate,
another group, or a political party. [Fn. 162]
The State's evidence with respect to large contributions
discussed above (see supra Part III.D.2) also applies to "group"
contributions. AkCLU contends that groups' contributions merit
greater protection because they implicate both associational and
speech rights. It asserts that contributions not made by an
individual to a candidate have no quid pro quo effect, and that
backdoor funneling concerns are irrelevant because existing law
already prohibited funneling excess contributions through a group.
It also claims that the $1,000 limits are significantly lower than
the $5,000 group limit approved in Buckley, and are so low that
they prohibit contributions that no longer threaten corruption.
It appears to us, however, that this $1,000 limit cannot
be said to be different in kind. Buckley actually upheld
individual contribution limits of $1,000 per election for federal
elections, subject to a cumulative annual maximum of $25,000. [Fn.
163] And even though funneling was already illegal in Alaska,
there is no indication that existing law was either an adequate
protection or effectively enforceable, and there was instead
evidence it was not. [Fn. 164]
Because the question is ultimately whether these limits
are "large," prevent "effective advocacy," or constitute a
"difference in kind," our comments relative to the individual
contribution limits apply equally here. We consequently reverse
the grant of summary judgment with respect to these limits and
uphold this provision of the Act.
c. Limits on contributions by political parties;
AS 15.13.070(d)
The Act sets graduated limits for political parties'
contributions to candidates; they range from $100,000 to candidates
for governor or lieutenant governor to $5,000 to candidates for
certain other offices. [Fn. 165]
The State argues that these limits are necessary to
prevent groups and individuals from circumventing their
contribution limits by funneling contributions through political
parties; in support it cites APOC inquiries regarding use of
political parties to pass funds to candidates. The State also
introduced an affidavit from former Alaska Governor Steve Cowper,
who affied that pass-throughs (donations to a party that are
earmarked for a candidate) under the pre-reform system "made a
mockery of contribution limits and turned political parties into
money launderers."
Relying on Colorado Republican Federal Campaign Committee
v. Federal Election Comm'n, [Fn. 166] AkCLU argues that all limits
on political parties' campaign finance activities are
unconstitutional. It concludes that a majority of the Court there
stated its belief that contributions or coordinated expenditures
made by a political party do not have a corrupting impact on the
political process.
But, because Colorado Republican addresses limits on
parties' independent expenditures, not contributions, it does not
squarely apply here. As noted above, the Court has held that
expenditure limits infringe much more directly on speech than do
contribution limits. Further, the Court primarily analyzes
contribution limits in context of associational rights. A party's
associational rights are not unduly infringed by contribution
limits that are not different in kind. We are not prepared to say,
based on the record before us, that these limits are different in
kind.
We note that federal law contains equivalent limits.
Under FECA, a political party is categorized as a "multicandidate
political committee." [Fn. 167] 2 U.S.C. sec. 441a imposes the
following limits on contributions by multicandidate political
committees: (a) $15,000 per year to a political party, [Fn. 168]
(b) $5,000 per year to non-party multicandidate political
committees, [Fn. 169] and (c) $5,000 per election to candidates for
federal office. [Fn. 170] National parties and party senate
campaign committees may give up to $17,500 to senate candidates
during an election year. [Fn. 171]
Another provision treats parties differently for purposes
of expenditures, but it does not affect the contribution limits to
which parties are otherwise subject. [Fn. 172]
Absent any limits on contributions by parties, we believe
there would be substantial potential for undue influence, i.e.,
quid pro quo corruption or the appearance of corruption. The
natural tendency of successful candidates who receive unlimited
contributions from a party would be to reduce independent
consideration of issues and adhere to positions taken by the party
itself. The relatively large ($5,000) limits on contributions by
individuals to parties would also encourage channeling individual
contributions to favored candidates absent any party limits. We
therefore conclude that the State has a legitimate governmental
interest in limiting a party's contributions. Further, to the
extent the ban on "non-group" contributions may be invalid, limits
on party contributions become even more justified. We therefore
reverse the judgment below with respect to AS 15.13.070(d) and
uphold the limit on contributions by political parties.
3. Restrictions on when contributions may be made and
received
a. Bans on nonelection year contributions; AS
15.13.074(c), (d)
Two statutes which restrict the timing of contributions
effectively ban "non-election year" contributions. Alaska Statute
15.13.074(c)(1) limits pre-election contributions. For candidates
for offices filled at general elections, the statute prohibits
making contributions before January 1 of the election year. [Fn.
173] For candidates for offices filled at municipal or special
elections, it prohibits making contributions earlier than nine
months before the election. [Fn. 174] Alaska Statute
15.13.074(c)(4), as amended in 1998, bars post-election
contributions, i.e., after December 31 of the election year or
sixty days after the candidate's last contested election, whichever
comes first. [Fn. 175] Alaska Statute 15.13.072(c) correspondingly
restricts when contributions may be solicited or accepted. [Fn.
176] The Act also contains contingent timing restrictions that
take effect only if a final court order declares AS 15.13.074(c)
unconstitutional. [Fn. 177]
At the outset, we note that Buckley authorizes
"reasonable time, place, and manner regulations, which do not
discriminate among speakers or ideas, in order to further an
important governmental interest unrelated to the restriction of
communication," provided that the regulations do not impose direct
quantity restrictions on political communication and association.
[Fn. 178]
The State offered evidence bearing on the need for
contribution time limits. In Open Secrets, author Larry Makinson
argues that off-year contributions allow donors effectively to
double the existing contribution limits by giving twice in a single
election cycle. [Fn. 179]
In 1989 the APOC staff examined the proportion of
contributions made after elections. [Fn. 180] Less than two
percent of all contributions in the 1988 cycle were post-election
contributions. [Fn. 181] At that time a majority of the APOC
commissioners stated strong support for barring post-election
contributions, and hoped such a ban would curtail contributions
"intended to influence a successful candidate rather than the
outcome of an election." [Fn. 182]
Former Alaska Governor Hickel affied that "post-election
contributions can too easily be viewed as an attempt to purchase
influence and are one of the most troubling kinds of contribution."
The State submitted a news article quoting 1994
gubernatorial candidate Jim Campbell as saying that "[t]here is an
appearance of conflict of interest when a winning candidate raises
money after the election is over."
In the superior court the State argued that the timing
limits "address the problem of the perpetual campaign." It argues
on appeal that these restrictions help ensure that contributions
will be used only to finance election campaigns. It asserts that
contributions "remote in time" to an election are "very susceptible
to the appearance that they were made to purchase influence." It
contends that APOC reports demonstrate the need for fund-raising
time limits. These reports show that between 1989 and 1995, eighty
percent of all nonelection-year contributions were made directly to
incumbents. Only three percent of nonelection-year contributions
were directed to challengers. Candidates for seats with no
incumbent candidate received seventeen percent of nonelection-year
contributions.
The State claims that the pre-election year ban --
"before candidacies are declared and platform issues are
identified" -- eliminates contributions that have "the appearance
of being made to purchase access or influence, particularly if the
candidate . . . is an incumbent."
The evidence the State cites shows, at most, that
incumbents who received pre-election year contributions may have
had a fund-raising advantage over the challengers, but it does not
distinguish on the basis of when the incumbents and challengers
declared their candidacies, or rebut the possibility that
incumbents, whom voters had previously favored, and whose political
platform was previously successful, were more in tune with the
electorate or better organized than their challengers.
That pre-election year contributors strongly favored
incumbents may imply a desire by those contributors to purchase
access or influence. But it does not give the appearance of
corruption absent some evidence implying that incumbents have used
pre-election year contributions to help raise funds substantially
exceeding their probable campaign needs. Nor is it apparent how
the temporal limits address any corruption that might arise from
giving some contributors inordinate opportunity to influence the
process. [Fn. 183]
The State emphasizes the negative public perception of
post-election contributions:
Obviously a postelection contribution cannot
be intended to assist the candidate in his or her efforts to win
because the election is over. While some contributors may simply
wish to assist in retiring campaign debts, a more likely perception
is that the purpose is to buy influence or, at the very least,
access.
To bolster its argument, the State cites cases from other
jurisdictions with what it admits are "mixed results." In two
cases, courts upheld the restrictions. [Fn. 184] In Gable v.
Patton, the restriction barred acceptance of contributions during
the four weeks preceding a primary. [Fn. 185] In Ferre v. Florida
ex rel. Reno, the restriction prohibited post-election
contributions. [Fn. 186] In the other two cases (both involving
off-year bans), courts held the time restrictions unconstitutional.
[Fn. 187]
AkCLU argues that the State has failed to provide
evidence of "real harm." Likewise, AkCLU maintains that "[t]he
identified harm of a quid pro quo receipt of money in exchange for
political favors simply does not apply to non-incumbents." It
asserts that, if anything, the evidence suggests the aggregate
effect of the temporal limits would be to increase, not diminish,
the possibility of corruption.
It also contends that the limits are not narrowly
tailored, and that even though the contingent temporal restrictions
reduce the harm, they unconstitutionally interfere with the right
of association.
While we recognize that these limits would have a
significant effect on a candidate's power to spend money during
non-election years, we consider these provisions to be contribution
limits, not expenditure limits. [Fn. 188] It is not apparent how
the relatively short pre-election contribution window addresses
corruption or the appearance of corruption. Neither the minimal
evidence nor the State's arguments justify the compressed time
limits of AS 15.13.074(c)(1), (2), and (3). The cases the State
cites do not explain how the pre-election limits can be justified.
[Fn. 189] We agree with the core rationale of the Massachusetts
Supreme Judicial Court, which concluded in Opinion of the Justices
to the House of Representatives that a cap on nonelection-year
contributions was unconstitutional. [Fn. 190] That court held:
[L]egislation that has the effect of
prohibiting a contributor from expressing support and affiliation
with a candidate for a lengthy period constitutes a significant
interference with the right of association. A contributor might
have compelling reasons for desiring to express that support at a
particular time other than the year of the election.[ [Fn. 191]]
We therefore affirm the superior court's invalidation of the pre-
election contribution limits of AS 15.13.074(c)(1), (2), and (3).
Our affirmance of this aspect of the judgment below
causes the eighteen-month contingent pre-election time limits in
the Act to take effect. [Fn. 192] Because neither side has
substantively discussed the validity of these contingent limits,
and because they are not patently unconstitutional, we decline to
address their validity here. [Fn. 193]
Post-election time limits, however, far more clearly
address corruption and its appearance because the election has
resolved the critical contingency of which candidate will hold
office. We think this latter impact on associational rights is
narrowly tailored to further compelling state interests. We
therefore uphold the post-election contribution limits of AS
15.13.074(c)(4).
b. Ban on contributions during the legislative
session; AS 15.13.074(c)
Alaska Statute 15.13.074(c)(2) prohibits making
contributions to legislative candidates, including both challengers
and incumbents, during a regular legislative session. [Fn. 194]
AkCLU argues that this ban severely constrains effective
campaign advocacy by legislative candidates. "Given the length of
the Alaska legislative session, fundraising [under the ban] is
limited to a two-month period before a primary election and [to]
two and one-half [additional] months before a general election."
[Fn. 195] Moreover, AkCLU claims the associational rights of
potential contributors are severely restricted during the
legislative session.
The State argues that this ban "addresses the perception
that contributions are made to influence the conduct of elected
officials during the session." It also contends that "the
prohibition frees sitting legislators from the fund-raising
treadmill and allows them to focus on the public's business during
the legislative session." The State claims that this interest is
compelling enough to support the ban. The Josephson Report survey,
in which about sixty percent of legislators stated they believed
fundraising during the legislative session needed to be regulated,
supports this contention to a limited extent.
Considered in isolation, the "legislator-freeing"
rationale is not sufficiently compelling to justify this
restriction. In Rosenstiel v. Rodriguez, the Eighth Circuit held
that freeing legislators to deal with issues was only relevant as
a by-product of corruption-fighting measures. [Fn. 196] In other
cases cited by the State, the interest was found sufficient only to
promote a speech-enhancing measure. [Fn. 197]
Preventing corruption or its appearance is a compelling
interest justifying narrowly-tailored restraints on First Amendment
rights. But the very circumstance most relevant to the appearance
of corruption -- receipt of contributions by incumbent candidates
during the session -- does not imply that in-session contributions
to challengers also give the appearance of corruption. The ban is
therefore not narrowly tailored to the State's compelling interest,
and is invalid as to non-incumbents. But invalidating the ban only
as to challengers would fundamentally unbalance a restriction which
the legislature clearly intended to apply to incumbents and
challengers alike, and would defeat the legislature's clear
intention as to this prohibition. We therefore decline to
invalidate only part of this ban while upholding it with respect to
incumbent candidates.
Accordingly, we affirm the decision holding these
provisions invalid.
E. Restrictions on the Use of Campaign Funds
1. Carry-forward restriction; AS 15.13.116
Alaska Statute 15.13.116 limits the amount of unused
contributions a candidate may carry forward to the next campaign.
[Fn. 198]
AkCLU argues that these "spend down" requirements
function as expenditure limits and are invalid. (AkCLU does not
challenge AS 15.13.112, which prohibits using contributions for a
candidate's personal benefit, or converting contributions to a
candidate's personal income.)
The threshold question is whether the carry-forward
restriction burdens speech. Two cases the State cites held that
similar restrictions directly limited expenditures, and therefore
burdened speech. [Fn. 199] We agree with that analysis. We must
therefore decide whether the State has compelling interests
justifying this burden.
The State argues that the limits are justified because
they prevent candidates who are unopposed, or opposed by weak
candidates, from taking contributions in one campaign to avoid
limits in the next one. This rationale is plausible. Contribution
limits fight corruption, and therefore relate to a compelling state
interest. Contribution limits for future campaigns of presently
unopposed candidates would effectively double without this
provision. [Fn. 200] Neither of the State's cited cases [Fn. 201]
presented this issue, because the associated contribution limits in
both of those cases had been invalidated.
There is evidence of substantial carryovers that appear
large in comparison with the total projected expense of campaigns
for contested seats. The average victorious state senate candidate
in the 1990 general election had a surplus (for our purposes,
meaning cash on hand less debts) of $11,450 at the end of the year.
The average victorious house candidate that year had a surplus of
$8,759. One successful house candidate had a surplus of $33,043;
one successful senate candidate had a surplus of $77,034. By way of
comparison, the average victorious house campaign for 1994 cost
$43,764; the corresponding senate election cost $72,784.
We hold that the State's interest in preventing avoidance
of valid contribution limits by use of carry-forwards is both
compelling and served by this restriction. We also conclude that
this provision is narrowly tailored to accomplish this interest.
We therefore reverse that portion of the judgment below.
2. Ban on inter-candidate contributions; AS
15.13.112(b)(7)
The Act prohibits a candidate from using campaign funds
to contribute to another candidate or to a group. [Fn. 202]
The State argues that the ban is valid because it
prevents: (1) use of donations contrary to the purpose of the
original contributor; (2) corrupt use of campaign funds for power-
brokering; and (3) evasion of contribution limits by funneling.
The State relies on David Finkelstein's affidavit for support.
Finkelstein affied that "[t]hroughout my time in the Legislature it
was common knowledge that certain legislators used campaign
contributions to try to secure leadership positions, particularly
the Speaker or President." He cited the 1992 speaker's contest as
an example, claiming that Republicans threw fundraisers for
Democrats to gain support for their speakership candidacies.
A number of candidates apparently have the wherewithal to
wield such power. At the end of the 1990 campaign cycle, according
to APOC records, ten state senate candidates had surpluses ranging
as high as $33,043. Fifty-two house candidates had surpluses, six
of which exceeded $20,000.
The State also notes that the law does not impair the
candidate's ability to donate personal funds to another candidate.
AkCLU responds by citing Service Employees, which dealt
with a similar ban contained in a California initiative. [Fn. 203]
The Ninth Circuit there addressed each of the arguments raised by
the State here, and rejected each for a different reason. The
court refused to accept the "misuse of donations" rationale because
it was not sufficiently narrowly tailored. The court, discussing
the rationale in the context of intra-candidate transfers, asserted
that "this interest in ensuring that contributors are not misled
could be served simply by requiring candidates to inform
contributors that their contributions might be spent on other
races." [Fn. 204] The court dismissed the concern about power
brokering as follows:
The Authors [of the initiative] argue that the
inter-candidate transfer ban may be justified
by the state's interest in preventing corruption or the appearance
of corruption by "political power brokers." Even if we assume this
to be an important state interest, the ban is not "closely drawn to
avoid unnecessary abridgement of associational freedoms." The
potential for corruption stems not from campaign contributions per
se but from large campaign contributions. The inter-candidate
transfer ban prohibits small contributions from one candidate to
another as well as large contributions. We hold, therefore, that
the inter-candidate transfer ban is unconstitutional . . . .[ [Fn.
205]]
But because the court in Service Employees had already
invalidated the contribution limits of the California initiative,
there was no longer any danger that inter-candidate contributions
could be used to avoid valid contribution limits. The court
therefore rejected funneling as a valid basis for the ban. [Fn.
206]
In this case, however, we have upheld the individual
contribution limits. Prevention of funneling therefore remains a
reasonable rationale for some restriction on inter-candidate
contributions. Without restrictions, a candidate experiencing a
very easy election or a candidate very successful at fundraising
could pass along contributions to other candidates at will;
allowing inter-candidate transfers could conceivably permit
contributors to evade limits not just once but multiple times. A
contributor wishing to make four $500 contributions to candidate A
(three more than the individual limit permits) would be able to
contribute to candidates B, C, and D, with the expectation they
would each pass their surplus contributions on to candidate A.
Because the State has a compelling interest in enforcing
contribution limits, and because candidates still retain the right
to make contributions from personal funds, we conclude that this
provision is constitutional.
F. Severability of Unconstitutional Provisions
Because we have concluded that some of these provisions
are unconstitutional we must consider the question of severability.
Severability is a matter of state law. [Fn. 207] The seminal case
in Alaska is Lynden Transport, Inc. v. State, which holds that
[t]he test for determining the severability of
a statute is twofold. A provision will not be deemed severable
"unless it appears both that, standing alone, legal effect can be
given to it and that the legislature intended the provision to
stand, in case others included in the act and held bad should
fall."[ [Fn. 208]]
The Act contains a severability clause. [Fn. 209] Its
inclusion indicates that the legislature intended the remainder of
the Act to stand if part of it were invalidated. It is also
significant that the legislature enacted contingent provisions that
were to become effective if parts of the Act were held to be
invalid.
Although we hold today that some parts of the Act are
unconstitutional, we do not believe that their invalidation so
undermines the structure of the Act as a whole that the entire Act
must fall. Standing alone, legal effect can be given to the
remaining provisions.
Other courts considering severability in the campaign
finance context have reached the same conclusion. In Buckley, the
Supreme Court let stand the public financing provisions of the
Federal Election Campaign Act while invalidating expenditure
limits. [Fn. 210] In Russell v. Burris, the Eighth Circuit severed
the constitutional provisions of an Arkansas campaign reform act,
holding that the purpose of the valid provisions would not be
thwarted by the invalidation of the others. [Fn. 211] The district
court considering Colorado Republican on remand refused to hold
that the unconstitutional independent expenditure limitation could
not be severed from the remainder of the party expenditure
provision. [Fn. 212]
Because we believe the constitutional parts of this Act
satisfy the conditions discussed in Lynden Transport, we hold those
provisions to be severable and reject AkCLU's argument to the
contrary.
G. Other Arguments
AkCLU's complaint alleges that the ban on anonymous
contributions, AS 15.13.074(b), [Fn. 213] is unconstitutional.
The Supreme Court stated in dictum that a ban on
anonymous contributions would be permissible. [Fn. 214] But
because the briefs have not discussed this provision, we decline to
reach the issue.
IV. CONCLUSION
To recapitulate:
&
