State elections commission suggests campaign caps to replace those struck down

An Alaska Native man in a baseball cap sits at a voting booth
Bethel citizens vote at the Yupiit Piciryarait Cultural Center in Bethel in 2020. (Katie Basile/KYUK)

A draft opinion prepared by Alaska Public Offices Commission staff proposes imposing campaign contribution limits in the place of some of the caps that were struck down by a panel of the 9th U.S. Circuit Court of Appeals earlier this year.

Robin Brena, an attorney who challenged the limits that were struck down, said the draft opinion is based on flawed logic.

“I don’t see any real reason for an agency to feel that it’s necessary to set campaign limits in Alaska. They should leave that job to the Legislature,” he said.

Heather Hebdon, the commission’s executive director, said the draft “will be the guidance we are providing to campaigns, at this time.”

The limits outlined in the draft would apply “until the Commission rules otherwise or disapproves the opinion,” she said. The draft states that the commission is expected to rule on the proposal in January and can approve, disapprove or modify it.

A divided federal appeals court panel in July struck down a $500-a-year limit on what an individual can give a candidate. It also struck down a $500-a-year limit on individual contributions to non-party groups and a cap on nonresident donations.

The state Department of Law did not seek further legal review of the panel’s decision. In August, Grace Lee, then a department spokesperson, said the department encouraged “the legislature to address this issue and determine what limits would be appropriate based on current constitutional precedent.”

An email seeking comment on the draft opinion was sent to a department spokesperson Wednesday.

The draft advisory opinion was dated Wednesday and shows it was prepared by Thomas Lucas, the commission’s campaign disclosure coordinator. It suggests that limits that were in place before those that were struck down “apply as adjusted for inflation,” including $1,500 per calendar year for individual-to-candidate and individual-to-group contributions. The draft does not specifically refer to nonresident contributions.

The draft states that reviving limits to amounts that previously existed, such as $1,000 from individuals to candidates, alone may not satisfy concerns raised by the appeals court panel and that is why the inflation adjustments are being proposed.

Brena said the prior law had “many of the same constitutional issues at $1,000 that it had at $500.”

“So in effect what staff’s saying is, we can go to prior law but prior law’d probably be unconstitutional so let’s change it and so let’s add inflation proofing,” he said. “Well, you don’t get to change the prior law, and if the prior law’s unconstitutional under the holdings of the 9th Circuit, then you can’t go back to those.”

Brena has hailed the appeals court decision as a win for free speech. In July, he said he viewed the 9th Circuit’s actions as allowing for campaign contributions from individuals to candidates that are “unrestrained.”

That was a concern for Alaska state Senate Democrats, who asked the governor to direct the attorney general to pursue further legal review of the decision by the appeals court panel.

Sen. Bill Wielechowski, an Anchorage Democrat, said he hopes the commission adopts the draft proposal. He said he is not sure how a court would rule on the matter, but he said he expects a legal challenge.

Next year features a race for governor, and most legislative seats also will be up for election.

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