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Alaska’s Campaign Finance Loss a ‘Win’ for Reformers (Corrected)

Nov. 25, 2019, 3:28 PMUpdated: Nov. 26, 2019, 2:26 PM

The U.S. Supreme Court was skeptical of Alaska’s $500 campaign contribution limit on Nov. 25, but the justices avoided an outright rejection of it in what one reform group called a “win” in the conservative-majority court.

In addressing whether to accept a First Amendment challenge to the state restriction, the court vacated a decision by the U.S. Court of Appeals for the Ninth Circuit and asked it to take another look at whether the atypically low campaign contribution limit is consistent with previous high court precedent.

The unsigned per curiam opinion was narrow, which appeared to be good news for campaign finance reformers who support reasonable limits on contributions from individuals to either a candidate or a group other than a political party.

“This basically counts as a win with this Court,” tweeted Daniel Weiner, of the pro-reform group Brennan Center for Justice.

This was the Supreme Court’s first foray into campaign finance since it struck federal contribution limits in 2014. The Roberts Court has been hostile to campaign finance reforms, Weiner said.

Sweeping Ruling Avoided

The opinion focused on the justices’ 2006 decision in Randall v. Sorrell that struck down Vermont’s contribution limits, and avoided a sweeping ruling that could have called into question all campaign finance limitations, said University of California, Irvine election law professor Rick Hasen.

Alaska’s loss was “the least bad way it could lose,” Hasen said.

There’s been a steady “deregulatory march” from the Supreme Court when it comes to campaign finance reform, said Rebecca Green, who co-heads William & Mary’s Election Law Program, referring to the court’s recent invalidation of campaign finance reforms. And she called contribution limits the “next holy grail” for opponents of campaign finance regulations.

But the court’s decision in the Alaska case suggests there’s hesitation on the part of at least some justices to take on contribution limits as a whole, said campaign finance lawyer Jason Torchinsky of Holtzman Vogel Josefiak Torchinsky. He filed an amicus brief in the Alaska case, urging the justices to take the case.

Perhaps its a sincere view of the law on the part of the justices, or maybe they are reluctant to “pick a fight” in the current political climate, said Weiner.

Laboratories of Law

Green said the court’s hesitance could be recognition that allowing states to serve as “laboratories of campaign finance” laws—each with their own rules governing campaign contributions—is valuable for democracy.

She pointed to Justice Ruth Bader Ginsburg’s separate statement in the Alaska case, suggesting that states should be allowed to tailor their contribution limits to their local situations.

“Alaska has the second smallest legislature in the country and derives approximately 90 percent of its revenues from one economic sector—the oil and gas industry,” Ginsburg wrote. These “characteristics make Alaska ‘highly, if not uniquely, vulnerable to corruption in politics and government,’” she said, quoting from the trial court below.

But Torchinsky said that even though the current court is likely concerned about limits placed on campaign spending, he’s not surprised it isn’t “eager to embroil the court” in another campaign finance dispute.

The decision sends a “clear signal” that Alaska’s contribution limits—and perhaps those in even a small number of other states—are too low, Torchinsky said.

On the whole, though, it “broke no new ground,” he said.

The court’s ruling reaffirms Randall‘s relatively cautious, incremental approach to scrutinizing contribution limits that “leaves a lot of room for reasonable regulations,” Weiner said.

With a Supreme Court that’s shown itself to be “enormously hostile” to campaign finance reform, that’s a win, he added.

The case is Thompson v. Hebdon, U.S., No. 19-122, remanded 11/25/19.

To contact the reporters on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com; Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com