A Vote Against State Nonresident Contribution Limits

• Author: Ben Wallace
• Position: J.D./D.C.L., 2018, Paul M. Hebert Law Center, Louisiana State University.
• Pages: 598-630

A Vote Against State Nonresident Contribution

Limits

TABLE OF CONTENTS

Introduction .................................................................................. 598

I. Tracing the History of Federal Campaign Finance Law .............. 600

A. The Federal Election Campaign Act ...................................... 601

B. The Mother of All Campaign Finance Jurisprudence ............ 603

II. Setting the Stage: A State-Circuit Split Punctuated by a

Fresh Take on Money in Politics at the Supreme Court ............... 605

A. Four States, Two Invalidated Laws ....................................... 607

1. Pioneers in Oregon Halted .............................................. 607

2. Frontiersmen in Alaska Succeed ..................................... 609

3. Good Try, Vermont ......................................................... 611

4. An Island in Hawaii ........................................................ 612

B. The Heightened First Amendment Protection

of Political Spending .............................................................. 613

III. The Unconstitutionality of Nonresident Contribution

Limits ........................................................................................... 615

A. The Heavy Burden on Out-of-State Residents ...................... 615

B. No Government Interest Is Sufficient to Justify the

Speech Suppression Created by Nonresident

Contribution Limits ............................................................... 619

1. Nonresident Contribution Limits Prevent

Participation, but Not Corruption .................................... 619

2. The Court Could, but Should Not, Recognize

Two Other Government Interests as Sufficient

to Justify Nonresident Contribution Limits ..................... 621

a. Preserving Representation ........................................ 622

b. Maintaining Federalism ............................................ 625

IV. Exploring the Constitutional Boundaries of State Laws

Restricting Nonresident Political Activity ................................... 626

Conclusion .................................................................................... 630

598 LOUISIANA LAW REVIEW [Vol. 78

INTRODUCTION

Bill’s home sits high in the mountains of northern Idaho. In the

summertime, he likes to watch deer scamper around his backyard while he

sips hot coffee and reads the local newspaper. Bill, however, spends more

mornings in Alaska than in Idaho. His chain of popular restaurants,

Buffalo Bill’s, has locations in many Alaskan cities. The success of Bill’s

business, particularly its “famous” Wild West Buffalo Burger, has allowed

the Idahoan to build a restaurant empire throughout Alaska.

Bill pays his fair share in Alaska state taxes, and his restaurants

employ hundreds of waiters, bussers, managers, cooks, and dishwashers

across the state. To protect and promote his business interests in Alaska,

Bill spends more than half of the year traveling throughout the state,

strengthening his relationships with the locals and their elected leaders.

Because Bill resides in Idaho, however, he cannot vote in any Alaskan

elections. He supports his favorite candidates when he can, but his busy

schedule limits the amount of time he can devote to campaigning personally

for any one candidate. The most effective, efficient, and meaningful way

Bill can support candidates is through monetary contributions.

Bill can make campaign contributions to candidates for state office in

nearly every state in the nation to the same extent as residents in those

states.1 In Alaska, however, Bill has a problem. Alaska is one of two states

that place special limitations on the ability of out-of-state residents to

donate money to candidates seeking in-state office.2 Alaska’s law limits

Bill’s ability to donate in a state where his business creates hundreds of

jobs, leads to millions of dollars in state tax revenue, and regularly fills the

bellies of Alaskans with thick, juicy burgers. In today’s highly mobile

society, many Americans just like Bill have significant interests in states

other than the ones in which they legally reside. Potential cross-border

concerns range from those of parents with children in other states to

coastal residents worried about state environmental policies that could

Copyright 2018, by BEN WALLACE.

1. See State Limits on Contributions to Ca ndidates, NAT’L CONF. OF STATE

LEG., http://www.ncsl.org/Portals/1/documents/legismgt/elect/ContributionLimits

toCandidates2015-2016.pdf (last updated May 2016) (providing a chart comparing

laws that limit individual contributions in every state) [https://perma.cc/TT85-

RTBC].

2. See ALASKA STAT. § 15.13.072 (2017) (capping the amount of contributions

candidates may receive from nonresidents—for example, $20,000 for gubernatorial

candidates and $5,000 for state senatorial candidates); see also HAW. REV. STAT. §

11-362 (2017) (prohibiting Hawaiian candidates from collecting more than 30% of

total contributions from nonresidents).

2018] COMMENT 599

affect their homes. In such high-stakes matters, special limits placed on

the rights of Americans to associate with candidates in other states create

troubling First Amendment concerns.3

The First Amendment prohibits governments from “abridging the

freedom of speech.”4 Though originally applicable only to Congress,5 the

First Amendment has long been held to apply to state and municipal

governments through the application of the Fourteenth Amendment’s Due

Process Clause.6 In addition, the term “speech” within the First Amendment

has been interpreted to include a wide variety of other activities, such as rights

of political expression and association.7 Making campaign contributions

involves the exercise of both rights.8 Courts are split on whether state

nonresident political contribution limits violate the First Amendment, which

3. This Comment focuses on how such limits interfere with First

Amendment rights. See U.S. CONST. amend. I (“Congress shall make no law . . .

abridging the freedom of speech . . . .”). It is entirely possible—and perhaps even

likely—that such laws also infringe upon other constitutional pro visions such as

the Privileges and Immunities Clause, the Dormant Commerce Clause, and the

Equal Protection Clause. See Mitchell L. Pearl & Mark Lopez, Against Act 64:

Preser ving Political Freedom for the Candidate and the Citizen, Brief for the

Appellants in Landell v. Sorrell, 27 VT. L. REV. 721 (2003) (discussing how

Vermont’s law limiting nonresident contributions in state elections likely violates

all three constitutional provisions). One intriguing question is whether the multiple

constitutional protections combined could invalidate laws limiting nonresident

contributions, even if no single constitutional protection clearly prohibits such laws.

See Michael Coenen, Combining Constitutional Clauses, 164 U. PA. L. REV. 1067

(2016) (showing the history of the Supreme Court’s willingness to entertain such

arguments).

4. U.S. CONST. amend. I.

5. This was true for the entire Bill of Rights, the first ten amendments to the

United States Constitution. See U.S. CONST. amends. I–X.

6. See U.S. CONST. amend. XIV, § 1 (“No state shall . . . deprive any person

of life, liberty, or property, without the due process of law . . . .”); see also Gitlow

v. New York, 268 U.S. 652, 66 6 (1925) (extending application of the First

Amendment to the state governments); McDo nald v. City of Chicago, 561 U.S.

742, 761 (2010) (citing Gitlow for the proposition that the First Amendment falls

within the Bill of Rights protections incorporated by the Due Process Clause).

7. McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434, 1448 (2014)

(citing Buckley v. Valeo, 424 U.S. 1, 15 (1976)).

8. Id. (“When an individual contributes money to a candidate, he exercises

both of those rights: The contribution ‘serves as a general expression of support for

the candidate and his views’ and ‘serves to affiliate a person with a candidate.’”

(quoting Buckley, 424 U.S. at 21–22)).