Thompson v. Hebdon

Defending Alaska’s Contribution Limits

On July 26, 2017 we filed an amicus brief, along with Prof. David Fontana of George Washington University Law School) arguing that an Alaska campaign finance limit should be upheld because it serves a compelling government interest in democratic self-government. On November 29, 2018, the Ninth Circuit rejected that argument (over Chief Judge Thomas’s dissent) and struck down the limit.

Key Facts

Caption Thompson v. Hebdon
Court U.S. Court of Appeals for the Ninth Circuit
Docket No. No. 17-35019
Status Split decision from Ninth Circuit
Plaintiffs David Thompson, et al.
Defendant
Heather Hebdon, Executive Director, Alaska Public Offices Comm’n

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. But challengers brought forward a lawsuit, claiming this provision (among others) violated their constitutional rights.

Alaska’s legal brief set forth two arguments in support of the nonresident contribution limits. First, the state argued, the nonresident limits help limit quid pro quo corruption. But the state also advanced a thoughtful argument based on “protecting Alaska’s system of self-government from outside control.” As the state explained, “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.

In November 2016, a federal judge rejected the challenge to Alaska’s limits on state-level campaign contributions. The decision upheld the limits, ruling that they do not violate the free speech or equal protection clauses of the U.S. Constitution.

Following appeal, on July 26, 2017 we filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit (joined by Professor David Fontana), arguing that Alaska’s limits on nonresident contributions can be upheld based on the democratic self-government interest.  As our brief explains, 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.

On November 27, 2018, a three-judge panel of the Ninth Circuit issued a split decision. All three judges agreed that the $500 individual contribution limit, and two other provisions involved in the case, should be upheld. As for the nonresident contribution limit, two judges voted to reverse the district court, finding the limit unconstitutional. Chief Judge Thomas dissented from that ruling. He would have upheld the nonresident contribution limit as closely drawn to both an anti-corruption interest and the self-government interest as advanced in our amicus brief.

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