Thompson v. Dauphinais

          MEMORANDUM OF DECISION

          TIMOTHY M. BURGESS, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Plaintiffs David Thompson, Aaron Downing, Jim Crawford, and District 18 of the Alaska Republican Party (“District 18”) bring this lawsuit against Defendants Paul Dauphinais, Mark Fish, Irene Catalone, Ron King, Kenneth Kirk, and Vance Sanders (collectively, “Defendants” or “the State”) to challenge the constitutionality of four provisions of Alaska's campaign finance laws under the First and Fourteenth Amendments.^[1] The Court called this matter for bench trial on April 25, 2016. The parties concluded their arguments and presentations of evidence on May 3, 2016, ^[2] and subsequently submitted post-trial briefs.^[3] Having carefully considered the pleadings, exhibits, trial testimony, arguments of counsel, and the applicable law, the Court makes the following findings of fact and conclusions of law.^[4]

         II. BACKGROUND

         In 1996, the Alaska Legislature enacted Chapter 48 SLA 1996 for the purpose of “substantially revis[ing] Alaska's campaign finance laws in order to restore the public's trust in the electoral process and to foster good government.” Chapter 48 SLA 1996 was based on a ballot initiative drafted by Michael Frank and certified by Lieutenant Governor Fran Ulmer, and established, among other things, $500 annual limits on the amount an individual could contribute to a candidate for state office or to a group that was not a political party, as well as aggregate limits on the dollar amount a candidate could accept from political parties or individuals who were not residents of Alaska. None of the contribution limits were indexed for inflation. Chapter 48 SLA 1996 became effective January 1, 1997.

         In 2003, the Alaska Legislature modified Alaska's campaign finance laws by enacting Chapter 108 SLA 2003. Chapter 108 SLA 2003 relaxed some of the campaign contribution limits set by Chapter 48 SLA 1996, including by raising the amount an individual could contribute to a political candidate or group that was not a political party from $500 to $1, 000, annually. Chapter 108 SLA 2003 became effective September 14, 2003.

         Three years later, 73 percent of Alaska voters voted in favor of Ballot Measure 1, which proposed revising Alaska's campaign finance laws to lower the amount an individual could contribute to a political candidate or group that was not a political party back to $500 per year. The $500 base limits became effective December 17, 2006.

         Plaintiffs in this case are individuals and a subdivision of a political party who contributed or attempted to contribute the maximum dollar amount permitted under Alaska's current campaign finance laws, as established by the above session laws and initiatives. Downing is an Alaska resident who, in 2015, contributed $500 to the campaign of mayoral candidate Larry DeVilbiss and to the campaign of state house candidate George Rauscher, the maximum contribution amounts permitted under Alaska Stat. 15.13.070(b). Crawford is an Alaska resident who, in 2015, contributed $500 to the campaign of mayoral candidate Amy Demboski and to the Alaska Miners' Association Political Action Committee, the maximum contribution amounts permitted under Alaska Stat. 15.13.070(b). Thompson is a Wisconsin resident and brother-in-law to Alaska State Representative Wes Keller who, in 2015, attempted to make a $500 contribution to Keller's campaign, but was unable to do so because the campaign had already received the maximum dollar amount it could accept from nonresidents under Alaska Stat. 15.13.072(e)(3). And District 18 is a subdivision of the Alaska Republican Party that was limited to a $250 contribution to Amy Demboski's mayoral campaign, the maximum amount that it was permitted to contribute under the aggregate limit on the dollar amount a campaign can accept from a political party set forth in Alaska Stat. 15.13.070(d)(4).

         By this suit, Plaintiffs challenge four distinct parts of Alaska's campaign finance laws under the First and Fourteenth Amendments. Each challenged provision is discussed individually below. In relief, Plaintiffs seek a declaratory judgment that each of the challenged provisions are unconstitutional, a permanent injunction prohibiting the State from enforcing the challenged provisions, and full reasonable costs and attorney's fees under 42 U.S.C. § 1983.

         The Court has jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 1343. This civil action arises under the First and Fourteenth Amendments of the United States Constitution and 42 U.S.C. § 1983.

         III. ANALYSIS

         It is well established that the First Amendment protects political association as well as political expression.^[5] It is equally well established that laws which limit the amount of money a person may give to a candidate or campaign organization intrude upon both of those First Amendment interests, ^[6] as a contribution serves both “as a general expression of support for the candidate and his views” and “to affiliate a person with a candidate.”^[7] But because “contributions lie closer to the edges than to the core of political expression, ”^[8] laws which regulate political contributions, as opposed to political expenditures, are subject to “a lesser but still ‘rigorous standard of review.'”^[9] Under that standard of review, “state contribution limits will be upheld if (1) there is adequate evidence that the limitation furthers a sufficiently important state interest, and (2) if the limits are ‘closely drawn.'”^[10] The State bears the burden of establishing both prongs of the constitutional inquiry.^[11]

         After Citizens United, what constitutes a sufficiently important state interest to support limits on campaign contributions has narrowed. Now, the prevention of quid pro quo corruption, or its appearance, is the only state interest that can support limits on campaign contributions.^[12]“That Latin phrase captures the notion of a direct exchange of an official act for money, ”^[13] or “‘dollars for political favors.'”^[14] Campaign finance laws that pursue other objectives, such as reducing the amount of money in politics, restricting the political participation of some in order to enhance the relative influence of others, or targeting the general gratitude a candidate may feel toward those who support him or his allies, “impermissibly injects the Government ‘into the debate over who should govern'” and thus cannot survive constitutional scrutiny.^[15]

         a. Counts One and Two: Individual-to-Candidate and Individual-to-Group Base Limits

         Plaintiffs first challenge the provisions of Alaska's campaign finance laws that prohibit an individual from contributing more than $500 per year to a candidate for political office and to a group that is not a political party.^[16] They argue that the $500 individual-to-candidate and individual-to-group base limits set forth in Alaska Stat. 15.13.070(b) are not closely drawn to further the sufficiently important state interest of combating quid pro quo corruption or its appearance.

         i. Sufficiently important state interest

         As part of that argument, Plaintiffs contend that Defendants did not present adequate evidence at trial to establish that Alaska's $500 base limits further the sufficiently important state interest of combating quid pro quo corruption or its appearance. The Court disagrees.

         At trial, the State put forward evidence that the risk of quid pro quo corruption or its appearance in Alaska politics and government is both actual and considerable. To start, Dr. Gerald McBeath, a Professor Emeritus of Political Science at the University of Alaska Fairbanks who was qualified as an expert in this case on the topic of Alaska state and local politics and government, identified several factors that make Alaska highly, if not uniquely, vulnerable to corruption in politics and government. The first of these factors is legislative size. Alaska has the second smallest legislature in the United States and the smallest senate, with only twenty senators. As Dr. McBeath explained at trial, that means that just ten votes can stop a legislative action such as an oil or gas tax increase from becoming law. Consequently, the incentive to buy a vote, and the chances of successfully doing so, are therefore higher in Alaska than in states with larger legislative bodies. A second factor is Alaska's almost complete reliance on one industry for a majority of its revenues. The percentage of Alaska's budget generated by royalties, taxes, and revenues from oil and gas is the highest among all of the oil and gas producing states in the United States. In fact, it is exponentially greater: typically 85 to 92 percent in Alaska compared to less than 50 percent for every other state. Another factor making Alaska susceptible to corruption in politics and government is its small population coupled with its vast size. According to Dr. McBeath, these characteristics make enforcement of campaign finance laws much more challenging, as it limits both the number and abilities of watchdog organizations.

         In addition to Dr. McBeath's testimony, the public officials who appeared at trial, regardless of whether they were called by Plaintiffs or the State, uniformly testified that they experienced and observed pressure to vote in a particular way or support a certain cause in exchange for past or future campaign contributions while in office. Defense witness David Finkelstein, a former Alaska state representative who served from 1989 to 1996 testified that “there was an inordinate influence from contributions on the actions of the legislature, ” and that legislators would often mention which interest groups had contributed large amounts to their campaigns or to their party during closed-door caucus meetings over whether particular bills would move forward. He further testified that “it inevitably would affect [his] vote if [he'd] received a thousand dollars or stacks of thousand dollar[ ] checks, from one side and not the other.” Defense witness Charles Wohlforth, who served two terms as a member of the Anchorage Assembly from 1993 to 1999, similarly testified that “the system was rigged by money[ed] interests and that too frequently the decisions of the assembly were controlled by those interests and their desires, based on the kind of contributions they would make.” And Eric Croft, who is currently a member of the Anchorage Assembly and who previously served in the state legislature for ten years, testified at trial that although he has never been directly asked for a political favor in exchange for a contribution, he has experienced situations where “it [was] clear that if you don't vote the way somebody wants, you're not going to get their continued contribution.”

         Witnesses for the Plaintiffs also provided evidence that some large contributors expect political favors in exchange for their contribution.^[17] Senator John Coghill testified that on one occasion during the legislative session, he was approached in the hallway of the State Capitol by a lobbyist demanding that Senator Coghill vote a certain way, saying “This is why we gave to you. Now we need your help.” Senator Coghill refused, and those represented by that lobbyist never made a contribution to Senator Coghill again. Bob Bell testified that during his tenure on the Anchorage Assembly in the 1990s, an oil executive offered to hold a fundraiser for him if he would publicly support a private prison project in South Anchorage. When Bell refused to support the project, the oil executive held a fundraiser for his opponent instead.

         Beyond this testimony, the State presented evidence about the widely publicized VECO public corruption scandal, in which approximately ten percent of the Alaska Legislature, including state representatives Vic Kohring, Pete Kott, and Beverly Masek, were directly implicated for accepting money from Bill Allen and VECO, Allen's oilfield services firm, in exchange for votes and other political favors.^[18] A surveillance video from the VECO investigation introduced at trial showed Kohring in a Juneau hotel room asking Allen and Rick Smith, another VECO official, for help with his (Kohring's) $17, 000 debt. In the video, Kohring accepts a relatively small cash payment from them in response to his request, and then, in the same exchange, asks Allen and Smith what he can do for them on oil tax legislation that was then pending before the Alaska Legislature. After being criminally charged, Kohring wrote a newspaper column in which he stated that other legislators were no better than he was and were unfairly critical of him because he got caught.

         The State also introduced at trial a Government Ethics Center study commissioned by the Alaska State Senate in 1990 in which the Government Ethics Center surveyed Alaska legislators, public officials, and lobbyists as to the image of and the public trust in the Alaska Legislature. The study concluded that “that things are not what they should be” and that “[t]he reputation and image of the legislature is unacceptably low.” Of particular relevance to this case, the survey results showed that 24 percent of lobbyists surveyed believed that “about half” or more of Alaska's legislators could “be influenced to take or withhold some significant legislative action . . . by campaign contributions or other financial benefits provided by lobbyists and their employers, ” and that 40 percent of legislators surveyed believe that very few members of the public had a sufficiently high degree of trust and confidence in legislators' integrity.^[19]

         Taking all of the testimony and other evidence together, the Court finds that Defendants have made an adequate showing that the risk of quid pro quo corruption or its appearance in Alaska politics and government from large campaign contributions is pervasive and persistent.^[20]Quid pro quo corruption, or even its appearance, undermines public trust in the electoral process and government. Having concluded that the $500 base limits set forth in 15.13.070(b) further Alaska's sufficiently important interest in preventing quid pro quo corruption or its appearance, the Court turns to the question of whether those $500 limits are “closely drawn” to further that interest.

         ii. Closely drawn

         In determining the constitutionality of Alaska's $500 base limits, Plaintiffs contend that the Court should apply the two-part, multi-factor “closely drawn” test articulated by the Supreme Court in Randall v. Sorrell^[21] rather than the test laid out by the Ninth Circuit Court of Appeals in Eddleman.^[22] Plaintiffs' position, however, is foreclosed by the Ninth Circuit's opinion in Lair.^[23]In Lair, the Ninth Circuit considered whether and to what extent Randall abrogated Eddleman's “closely drawn” analysis.^[24] Applying Miller v. Gammie, ^[25] it found that “there simply was no binding Randall decision on that point, ”^[26] and that the district court's decision to apply Randall's “closely drawn” analysis to the contribution limits at issue in that case was therefore legal error.^[27] The Court will therefore determine the constitutionality of Alaska's campaign contribution laws using Eddleman's “closely drawn” test.

         Under Eddleman's “closely drawn” test, limits on contributions are “closely drawn” if they “(a) focus narrowly on the state's interest, (b) leave the contributor free to affiliate with a candidate, and (c) allow the candidate to amass sufficient resources to wage an effective campaign.”^[28] In conducting that tailoring analysis, a court must be “mindful that the dollar amounts employed to prevent corruption should be upheld unless they are ‘so radical in effect as to render political association ineffective, drive the sound of a candidate's voice beyond the level of notice, and render contributions pointless.'”^[29]

         Here, Plaintiffs do not dispute and the Court agrees with Defendants that the base limits set forth in Alaska Stat. 15.13.070(b) leave an individual free to affiliate with a candidate. Plaintiffs do, however, dispute that Alaska's $500 base limits focus narrowly on Alaska's interest in the prevention of quid pro quo corruption or its appearance. They further claim that the State has failed to prove that the $500 base limits allow candidates, particularly challengers in competitive races, to amass sufficient resources to run effective campaigns. The Court addresses each claim in turn.

         1. Focus narrowly

         Citing Frank's testimony as to why and how he selected $500 as the individual-to-candidate and individual-to-group contribution limit amounts for his ballot initiative back in the 1990s, Plaintiffs contend that the $500 individual-to-candidate and individual-to-group contribution limits were put in place for impermissible purposes other than preventing quid pro quo corruption or its appearance, and that the State therefore cannot show that those limits satisfy the first part of Eddleman's “closely drawn” test. But Plaintiffs' argument forgets that Ballot Measure 1, which established the current $500 base limits and which was approved by a 73 percent margin of Alaska voters, explicitly contemplated an anticorruption purpose.^[30] Indeed, the statement in support of the successful initiative included in the Alaska Division of Elections voter information packet stated as follows:

Corruption is not limited to one party or individual. Ethics should be not only bipartisan but also universal. From the Abramoff and Jefferson scandals in Washington D.C. to side deals in Juneau, special interests are becoming bolder every day. They used to try to buy elections. Now they are trying to buy the legislators themselves.

         Plaintiffs also argue that the $500 base limits impermissibly restrict their free speech and associational rights because Defendants have not shown that a higher contribution limit, such as a $750 or $1, 000 limit (or even a $500 limit indexed for inflation), would be ineffective at preventing quid pro quo corruption or its appearance. That argument, however, misunderstands both the Court's role in assessing and the State's task in proving the constitutionality of a contribution limit. In Buckley, the Supreme Court rejected an overbreadth claim that the $1, 000 contribution limit at issue in that case was “unrealistically low” because “much more than that amount would still not be enough to enable an unscrupulous contributor to exercise improper influence over a candidate or officeholder.”^[31] In rejecting the claim, the Buckley Court adopted the Court of Appeals for the District of Columbia's observation that “[i]f it is satisfied that some limit on contributions is necessary, a court has no scalpel to probe whether, say, a $2, 000 ceiling might not serve as well as $1, 000.”^[32] The law instead requires “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served.”^[33] In the context of this case, that means that the State need not prove that $500 is the highest possible contribution limit that still serves to prevent quid pro quo corruption or its appearance, but rather that the challenged $500 contribution limits further that interest and also permit candidates to “amas[s] the resources necessary for effective advocacy.”^[34]

         What is more, the State did elicit testimony at trial indicating that the $500 individual-to-candidate and individual-to-group limits are, in fact, likely more effective at furthering the State's interest in preventing quid pro quo corruption or its appearance than a hypothetical $750 or $1, 000 limit. Professor Richard Painter, whom the Court qualified as an expert in government ethics and institutional corruption with an emphasis on campaign finance reform, explained that lower contribution limits are often more effective at decreasing the risk of quid pro quo arrangements or their appearance because they make a candidate less dependent upon an individual or group of individuals for financial support, especially in a state like Alaska where the cost of campaigns for state or municipal office are relatively low. Lower limits often increase the donor base and decrease the impact of an individual contribution, thus making it easier for a candidate to decline a contribution contingent upon the performance of a political favor. Consistent with Professor Painter's expert testimony, Croft testified that the higher the contribution limit, “it's harder and harder to turn that down.”

         Finally, with respect to the individual-to-group contribution limit, the Court finds that Defendants have made the appropriate showing that Alaska Stat. 15.13.070(b)'s individual-to-group limit focuses narrowly on the State's interest in reducing the risk of quid pro quo corruption or its appearance, as it works to keep contributors from circumventing the $500 individual-to-candidate base limit. The Supreme Court in McCutcheon affirmed that the anti-circumvention interest originally recognized in Federal Election Commission v. Beaumont^[35]remains valid after Citizens United.^[36] Alaska's campaign finance laws define a “group” as “two or more individuals acting jointly who organize for the principal purpose of influencing the outcome of one or more elections and who take action the major purpose of which is to influence the outcome of an election.”^[37] Under Alaska Stat. 15.13.070(c), a group that is not a political party may contribute up to $1, 000 per year to a candidate. Without the $500 individual-to-group limit, an individual could make unlimited donations to a group, $1, 000 of which could then be passed on to the candidate-double the individual-to-candidate limit.

         2. Amassing sufficient resources to effectively campaign

         In addition to their argument that the $500 base limits set forth in Alaska Stat. 15.13.070(b) do not focus narrowly on the State's interest in avoiding actual or apparent quid pro quo corruption, Plaintiffs argue that those limits are unconstitutionally low under the third prong of Eddleman's “closely drawn” test. While it is certainly true that a contribution limit that is too low “could itself prove an obstacle to the very electoral fairness it seeks to promote, ”^[38] the Supreme Court in Buckley specifically rejected the contention that $1, 000, or any other amount, was a constitutional minimum below which legislatures could not regulate.^[39] It instead held that courts should determine “the outer limits of contribution regulation by asking whether there was any showing that the limits were so low as to impede the ability of candidates to ‘amas[s] the resources necessary for effective advocacy.'”^[40] In making that determination, the Ninth Circuit has instructed courts to “look at all dollars likely to be forthcoming in a campaign, rather than the isolated contribution” and to “consider factors such as whether the candidate can look elsewhere for money, the percentage of contributions that are affected, the total cost of a campaign, and how much money each candidate would lose.”^[41]

         In this case, Plaintiffs claim that the $500 base limits set forth in Alaska Stat. 15.13.070(b) are not closely drawn because they do not allow candidates in Alaska, and in particular challengers in competitive races, to amass the resources necessary for effective advocacy. But Plaintiffs' evidence does not show that Alaska's $500 base limits are “‘so radical in effect as to render political association ineffective, drive the sound of a candidate's voice beyond the level of notice, and render contributions pointless.'”^[42] Michael Gene Pauley, a campaign manager and consultant whom the Court qualified as an expert in Alaska political campaigns, testified that he considers Alaska's $500 base limits to be too low because they are not indexed for inflation, because the cost of campaigns is generally increasing, and because the limits are annual in nature. Pauley further testified that most challengers in Alaska do not enter political races in the off year. Plaintiffs also offered the testimony of Senator Coghill, who testified that he has always been able to raise sufficient funds to run an effective campaign, but that it was “just harder” under the current $500 limits than under the $1, 000 limits because “the lower limits do cause you to have to go broad.” In other words, it requires more work.

         Plaintiffs also called Clark Bensen, a consultant and a former director of political analysis for the Republican National Committee whom the Court qualified as an expert “in the area of analyzing campaign finance data for the purpose of determining whether contribution limits permit candidates to amass the resources that they need to mount effective campaigns, ” to testify at trial. Based on his analysis of campaign finance data for the State of Alaska, Bensen opined that the $500 base limits set forth in Alaska Stat. 15.13.070(b) are unconstitutionally low because candidates in competitive campaigns often spend more than they raise and because those candidates would be able to raise more money if the $500 limits were instead $750 or $1, 000. The Court, however, does not find Bensen's testimony to be credible. At trial, Mr. Bensen acknowledged that his analysis ...