What Opponents of Reform Don’t Get About State Democratic
Self-Government

We are pleased to present this analysis from Professor David Fontana of George Washington University Law School. Professor Fontana worked with Free Speech For People on a ground-breaking friend-of-the-court brief in Thompson v. Hebdon, a campaign finance case that challenges Alaska’s limits on out-of-state contributions to candidates in state elections. Our brief with Professor Fontana raises the argument that Alaska’s limit on out-of-state money can be defended based not only on preventing corruption, but also on the state’s compelling interest in democratic self-government.

The challengers in the Alaska campaign finance case in the United States Court of Appeals for the Ninth Circuit have filed their reply brief.  It is available here.  The case involves a First Amendment challenge to Alaska’s limitations on out-of-state contributions to candidates for state elected offices.  I will use this post to respond to their arguments related to our brief about the democratic self-government interest at stake in the case.  While we appreciate their engagement with these very important constitutional issues presented in our brief, their arguments fall flat.

First, the reply brief misreads Supreme Court and lower court precedents—and even a fantastic law review article by Jessica Bulman-Pozen—as directly addressing and rejecting the existence of a democratic self-government interest ever and as applied to state governments.  The reply brief first cites a Ninth Circuit case (Lair v. Bullock) and McCutcheon v. F.E.C. as rejecting any such interests, even though these interests were not addressed by those opinions.

Most importantly, the reply brief misreads Bluman v. F.E.C.  Bluman is cited as rejecting the possibility of there ever being a democratic self-government interest in a First Amendment case, when in fact Bluman explicitly recognizes such an interest as applied to the facts of that case.  Bluman states that “the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government.”

Bluman does not directly address which or how many political communities exist for purposes of permissibly limiting contributions under the First Amendment.  Bluman says that an example of a political community is the entire nation, and in limiting foreign contributions in Bluman the entire nation was the relevant political community being protected. That does not mean Bluman rejected states as an additional political community that can be protected.  It just means that Bluman did not have to decide about the existence of other political communities.

Our argument is that Bluman’s logic recognizing a democratic self-government interest in preserving the entire country as a political community supports finding a similar interest in preserving states as political communities.  Both sides should engage with this argument and the Ninth Circuit should decide that issue.  But to say that Bluman rejected there ever being a democratic self-government interest or rejected there being a state democratic self-government interest misreads Bluman as resolving this once and for all.

Second, the reply brief fails to engage with the constitutional argument for a democratic self-government interest independent of these few precedents. The reply brief mischaracterizes some parts of the Constitution and neglects other parts of the Constitution.  The reply brief treats the Republican Form of Government clause as being the same thing as federalism, when in fact these are very different constitutional doctrines generating very different arguments for democratic self-government.  The reply brief dismisses the constitutional argument for preserving the basic existence of states as constitutionally-required political communities as being “politically correct” and “not legitimate.”  The reply brief does this instead of engaging with the extensive history, structure, text, and doctrine behind the democratic self-government interest.

Third, the reply brief misunderstands the role of facts in First Amendment cases.  In deciding whether is a strong enough interest to limit campaign contributions, federal courts look to factual evidence supporting that interest in the particular case before them.  The factual evidence will be different in different jurisdictions and at different time—and therefore different in different cases.  The reply brief says that Alaska’s presentation of its situation is asking for a “special privilege” and a “unique license” in order “to pummel First-Amendment-protected free speech.” All that Alaska is doing is what constitutional law requires: looking at the “special” and “unique” facts of a case in arguing what to do about that case.  That is not asking for special treatment.  This is just using the common law method of asking courts to decide the cases based on the facts before them.

 

 

 

 

 

 

 

 

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