Alaska gives Ninth Circuit the cold shoulder: conflicts in campaign finance jurisprudence.

• Author: Hyman, Andrew

INTRODUCTION

The costs associated with mounting a full-fledged political campaign for federal, state, and local offices have increased tremendously over the past few decades. (1) As costs have skyrocketed, so has the need for campaign contributions to cover them. For most candidates, the preferable and most efficient way to raise campaign funds is to solicit large contributions from wealthy donors. (2) The alternative would be to spend greater time and effort soliciting thousands of small contributions from a larger pool of donors. (3) While the first approach is attractive, its main criticism has been the conflict of loyalties it can create for the candidate. While she is elected by the majority in her district and therefore is at least nominally answerable to her constituents, a cynical view dictates that she owes her victory to those few who funded her campaign. (4) Once she is elected, this cynical view continues that she must bestow benefits upon those wealthy few from whom she has asked, and likely will ask again, for money. This conflict of interest leads the candidate toward two potential courses of action: illegal quid pro quo corruption, where money is given in exchange for explicit, requested benefits or legislative votes, (5) and legal, efficient legislation which, while facially neutral, tends to benefit the class of constituents or the industries most likely to support the legislator in her next campaign. (6)

Late in the twentieth century, Congress saw quid pro quo corruption as a particularly dangerous practice and took steps to eliminate it from federal politics. In 1972, the Federal Election Campaign Act (FECA) (7) became law, and was then substantially amended in 1974. (8) FECA and its amendments were passed primarily to remove actual and apparent quid pro quo corruption from federal elections. (9) Neither it nor it regulations created state election requirements. Those had to be developed by the states.

State legislators, mindful of First Amendment protections and their own state constitutional principles, have passed a multitude of campaign finance reform laws since FECA was enacted. (10) By way of these statutes, states have tried to reduce the total amount of money entering political campaigns, the amount of actual and apparent political corruption, and the effects of out-of-state and out-of-district influences over local elections, all to encourage local politicians to be more responsive to the needs of their constituents. In regard to this final tactic, at least Alaska, Oregon, Vermont, and Washington have enacted statutes designed to reduce--if not eliminate--out-of-state and/or out-of-district influence in local elections. (11)

The line between acceptable regulation and impermissible infringement of First Amendment rights is not bright for the states. Its complexity derives from the fact that the First Amendment protects the rights of both the candidate and her supporters, but laws that infringe upon the rights of one may not infringe upon those of the other. The Supreme Court's ruling in Buckley v. Valeo (12) further complicated matters by determining that certain acts, such as writing a check, though arguably pure conduct, are protected by the First Amendment as political speech. (13)

The United States Supreme Court has yet to directly address the constitutionality of state laws that limit participation in the political processes to residents. There have been federal circuit court and state supreme court decisions, but no constitutional consensus has been reached among them. The failure of the United States Supreme Court to grant certiorari to any of these eases has left a hole in the campaign finance jurisprudence, which has been the subject of recent litigation. This Comment explores the debate between the Ninth Circuit and the Alaska Supreme Court regarding the constitutional limits of laws that fall into this jurisprudential gap. Specifically, it examines how the two courts reached different conclusions when interpreting similar statutes to limit out-of-state donors from contributing money to state elections. The Ninth Circuit, in VanNatta v. Keisling, (14) held unconstitutional a law that restricted candidates for Oregon state office in their ability to receive and use funds donated by contributors who resided outside the voting district of the office sought. The Alaska Supreme Court, in State v. Alaska Civil Liberties Union, (15) held constitutional a law that restricted candidates for Alaska state office in their ability to receive and use funds donated by contributors who resided outside the state. Both decisions were denied certiorari by the United States Supreme Court.

While the Alaska Supreme Court's opinion went to great lengths to declare Alaska's statute compatible with the spirit of Buckley, the Ninth Circuit remained true to the narrow letter of Buckley, swiftly striking down any of the defense's arguments that strayed from the constricted doctrine, usually with little justification given. Paradoxically, the Alaska law, which arguably infringed on First Amendment rights of both the donors and donees more so than the Oregon law, was found valid, while the Oregon law was found unconstitutional.

This outcome raises a number of constitutional issues for the United States Supreme Court. (16) First, it leaves a hole in current campaign finance jurisprudence, giving no guidance to state legislators--who may be looking to reform their campaign finance statutes--as to the constitutionality of excluding nonresidents from donating to state politics. Second, it creates a conflict between the Alaska state courts, which will follow their state supreme court decision, and the United States District Court for the District of Alaska, which will follow the Ninth Circuit decision. This can potentially lead to the kind of intrastate forum shopping that Erie Railroad v. Tompkins (17) was supposed to eliminate. Should another plaintiff bring suit on a related matter in Alaska, the choice of forum in which she should file may very well be outcome determinative. Third, until the United States Supreme Court makes a decision on this issue, elected state courts may feel compelled, as the Alaska court arguably did, to validate state-sponsored prejudice against nonresidents.

Part I of this Comment will give an introduction to the constitutional issues at stake in the campaign finance reform debates as informed by Buckley v. Valeo. This Part will also look at selected restrictions laid down in FECA and at how the Supreme Court has dealt with federal attempts to restrict different forms of political speech. Part II will introduce the Alaska and Oregon litigation and will discuss how each state's campaign finance statute worked in practice. It will then analyze which, and whose, First Amendment rights were potentially infringed by each law. (18) Part III will delve into the courts' analyses of the cases. This Comment will conclude that each court engaged in questionable analysis, and that courts should recognize additional governmental reasons for restricting political speech besides those related to the prevention of corruption. In conclusion, the Supreme Court should address the issue of out-of-state and out-of-district participation in local politics in order to prevent situations where constitutional questions can be decided based on forum choice and to protect the rights of nonresidents with in-state and in-district interests.

1. BUCKLEY V. VALEO AND FECA

   Although the drive to reform campaign financing began in the late nineteenth century, (19) it wasn't until the late twentieth century--in the wake of the Watergate scandal--that the issue came to the fore of public consciousness. (20) Congress passed FECA in 1971 (21) and passed amendments to it only a few years later, in 1974, largely in response to the Nixon administration's corrupt abuses of campaign funding. (22) Two years later, in Buckley v. Valeo, (23) the Supreme Court reviewed the then-current version of FECA, invalidating some of its provisions and upholding others. In the process, the Court created a constitutional framework with which to analyze campaign finance laws. This framework was designed to balance the core First Amendment freedoms of speech and association with the governmental interest in guarding against political corruption.

   In resolving Buckley, the Supreme Court divided its analysis between campaign contributions and independent expenditures. Political contributions include the giving of "any gift, subscription, loan, advance, or deposit of money ... made by any person for the purpose of influencing any election for federal office...." (24) Independent expenditures include money spent to "expressly advocat[e] the election or defeat of a clearly identified candidate" by those outside of and not acting in concert with a candidate's campaign. (25) The Buckley Court held that any restriction on either contributions or independent expenditures necessarily infringed upon First Amendment freedoms of speech and association. However, the Court concluded that a certain amount of infringement might be permissible. (26)

   1. The Letter of Buckley

      The Buckley Court found that campaign contributions posed a much greater threat of quid pro quo corruption than did independent expenditures. (27) It also found that "[FECA's] expenditure limitations impose[d] far greater restraints on the freedom of speech and association than [did] its contribution limitations," (28) so that limitations on each deserve separate constitutional analyses. (29) Any restrictions that infringed upon independent expenditures would need to "satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of political expression." (30) The Court did not find any compelling state interest in Buckley that was worthy of placing restrictions on independent expenditures by individuals and groups. (31) Thus, the Court struck down...