On Monday, the State of Alaska filed an important legal brief setting forth a bold argument for self-government as a theory for limiting out-of-state money in local and state election campaigns. The state’s lawyers discussed the case with Free Speech For People while developing the brief, and we’d like to highlight this aspect of the argument.
Some background: Alaska has relatively forward-thinking campaign finance laws designed to reduce the influence of big money in elections. One key provision limits the total amount of money that a candidate for state or local office can accept per year from nonresidents. For example, a candidate for governor is limited to $20,000 in out-of-state contributions. (You can understand why: as the Alaska Supreme Court once observed, “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.”) But the challengers in a new lawsuit claim this provision violates their constitutional rights.
Alaska’s recent legal brief sets forth two arguments in support of the nonresident contribution limits. First, the state argues, the nonresident limits help limit quid pro quo corruption. But the state also advances a thoughtful argument based on “protecting Alaska’s system of self-government from outside control.” As the state explains, “Alaska may limit nonresident participation in its political processes for the same reason it may prohibit nonresidents from voting—because they are not members of Alaska’s self-governing political community.”
This argument draws support from a little-reported Supreme Court decision just two years after Citizens United. The case of Bluman v. FEC involved a federal law prohibiting foreign nationals from contributing or spending money in federal, state, or local elections. Two Canadians in the U.S. on temporary visas challenged the prohibition—after all, Citizens United had just a year before waxed poetic about how a ban on corporate political spending violated the prohibition against “distinguishing among different speakers, allowing speech by some but not others” and thereby “deprive[d] the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration.” If corporations can spend unlimited money in elections, why couldn’t Mr. Bluman spend a few bucks to “print flyers supporting President Obama’s reelection and to distribute them in Central Park”?
The answer, as explained by the federal district court:
Political contributions and express-advocacy expenditures are an integral aspect of the process by which Americans elect officials to federal, state, and local government offices. . . . We think it evident that those campaign activities are part of the overall process of democratic self-government. Moreover, it is undisputed that the government may bar foreign citizens from voting and serving as elected officers. It follows that the government may bar foreign citizens. . . . from participating in the campaign process that seeks to influence how voters will cast their ballots in the elections. Those limitations on the activities of foreign citizens. . . . are all “part of the sovereign’s obligation to preserve the basic conception of a political community.”
Obviously, this created some tension with Citizens United, because corporations also can’t vote or serve as elected officers. And it’s hard to see how today’s transnational corporations fit into “the basic conception of a political community.” Evidently recognizing the inconsistency, the Supreme Court decided to duck the issue, affirming the lower court ruling in a brief order without a written opinion.
The analogy to Alaska’s nonresident contribution limits is obvious. As the state’s brief explains:
The Bluman court reasoned that “it follows” from the fact that the federal government “may bar foreign citizens from voting and serving as elected officers” that it may also bar them from “participating in the campaign process that seeks to influence how voters will cast their ballots.” Likewise, it follows from the fact that the Alaska state government may bar nonresidents from voting and running for Alaska state office that it may also restrict nonresident participation in the Alaska state campaign process. Just as a Canadian citizen is not part of the political community governed by the U.S. federal government, a Florida resident is not part of the political community governed by the Alaska state government. And just as the federal government has a “compelling interest” in limiting the participation of Canadian citizens in U.S. government, the Alaska state government has a compelling—or at least important—interest in limiting the participation of Floridians in Alaska state government.
This is an important argument and it may well be headed to the Supreme Court. We’ll be watching this case closely and helping as we can. The trial begins in Anchorage on April 25th.