New friend-of-the-court brief argues for self-government

Today, Free Speech For People filed a friend-of-the-court brief (along with Prof. David Fontana of George Washington University Law School) arguing that an Alaska campaign finance law should be upheld because it serves a compelling government interest in democratic self-government. Here’s where that comes from and why it’s important.

Background

As we explained here, the case (now called Thompson v. Hebdon) involves various challenges from opponents of Alaska’s campaign finance reforms. One challenged provision limits how much money candidates for state office can accept from nonresident (out-of-state) contributors. (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.”)

In recent years, the Supreme Court has been limiting the acceptable legal reasons for limiting money in politics to fighting corruption (or just “quid pro quo” corruption). And Alaska argues that the nonresident limits do help limit quid pro quo corruption.

But there’s another legal theory that can justify the nonresident limits. It’s as old as the Founding, yet it draws on a little-reported but ground-breaking Supreme Court decision from just two years after Citizens United. It’s called the “democratic self-government” interest.

The democratic self-government interest

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 a special three-judge 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.” Perhaps recognizing the inconsistency, the Supreme Court decided to duck the issue, affirming the lower court ruling in a brief order without a written opinion.

Today’s friend-of-the-court brief

Our brief in the U.S. Court of Appeals for the Ninth Circuit argues that Alaska’s limits on nonresident contributions can be upheld based on the democratic self-government interest. The analogy to the Bluman decision is obvious. Foreign citizens who live abroad or are temporarily in the United States are not full members of the U.S. political community; residents of the lower forty-nine states are not full members of the Alaska political community.

But in some ways it’s worse than Bluman. In many places, the overwhelming amount of political contributions come from far away. For example, the average member of the U.S. House of Representatives received just 11 percent of all campaign funds from donors inside the district. An in-depth study of the 2005-06 federal election cycle showed that donors in 5% of nation’s ZIP codes contributed 77% of all campaign funds. And candidates know where their bread is buttered. So we shouldn’t be surprised that empirical research shows a significant relationship between out-of-jurisdiction political contributions and divergence between Members of Congress and their constituents.

As for state governments, the design of our Constitution, as explained by key Founders such as James Madison and Alexander Hamilton, creates a federalist system in which states are meant to be self-governing political communities. As our brief explains, drawing on the scholarship of Professor Fontana, the benefits of federalism are lost if state democracy is weakened. When donors from a few wealthy areas dominate the campaign funding of faraway states, it can undermine state democratic self-government. That does not mean that states are required to limit out-of-state contributions, and most do not. But the people of Alaska chose to do so, and it is consistent with the Constitution.

Yet this is not just about nonresident contribution limits. Democratic self-government could become a new foundation for campaign finance reforms in other areas, such as corporate political spending. (In fact, the Ninth Circuit has already cited the democratic self-government argument to uphold a law prohibiting corporations from introducing ballot initiatives.) This case doesn’t reach that far, but Free Speech For People’s approach is to expand the field of possibilities and lay the groundwork now for the day when the Supreme Court may be ready to overrule Citizens United and its kin.

The case is No. 17-35019, Thompson v. Hebdon, in the U.S. Court of Appeals for the Ninth Circuit. Oral argument has not yet been scheduled.

Download a PDF of the Amicus Brief

 

 

 

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