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 Candidates, 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 provisions 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: Preserving 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, 666 (1925) (extending application of the First Amendment to the state governments); McDonald 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)). 600 LOUISIANA LAW REVIEW [Vol. 78 has created a hole in First Amendment campaign finance jurisprudence. 9 To fill this gap in the law, provide clear guidance for legislators, and protect the political association rights of nonresidents, the United States Supreme Court should, at its next opportunity, invalidate state nonresident contribution limits. Recent Court rulings dictate the direction it should take. 10 Nonresidents without voting power should possess the ability to donate to political campaigns to the same extent as residents as a means of protecting legitimate interests. No one would seriously contest Bill’s right to campaign voluntarily on behalf of a candidate for governor in Alaska by, for example, knocking on doors or passing out flyers. But because such activity is impractical for people like Bill, nonresident contribution limits effectively restrict their ability to participate in state elections in which they have legitimate interests. Part I of this Comment introduces federal campaign finance regulation before summarizing Buckley v. Valeo, 11 the root from which all subsequent campaign finance jurisprudence sprouted. Next, Part II presents a holistic overview of state nonresident contribution limits caselaw and then inspects recent Supreme Court decisions that altered the campaign finance jurisprudential landscape within the context of the First Amendment. In Part III, this Comment analyzes the constitutionality of nonresident contribution limits, weaving in policy reasons supporting the invalidation of such laws. Finally, Part IV examines the extent to which states should have the power to restrict any political activity to their own residents without violating the First Amendment. I. TRACING THE HISTORY OF FEDERAL CAMPAIGN FINANCE LAW Federal lawmakers began policing money’s role in politics more than a century ago. 12 Since then, many ambitious politicians have introduced 9. Compare State v. Alaska Civil Liberties Union,...