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
 
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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
Bills 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 Bills, has locations in many Alaskan cities. The success of Bills
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 Alaskas law limits
Bills 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 todays 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, NATL 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 nonresidentsfor 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 Amendments 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 possibleand perhaps even
likelythat 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
Vermonts 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 Courts 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. IX.
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 2122)).

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