Alaska Pub. Offices Comm'n v. Patrick

• Decision Date: 03 September 2021
• Docket Number: Supreme Court No. S-17649
• Citation: 494 P.3d 53
• Court: Alaska Supreme Court
• Parties: ALASKA PUBLIC OFFICES COMMISSION, Petitioner, v. Donna PATRICK, James K. Barnett, and John P. Lambert, Respondents.

494 P.3d 53

ALASKA PUBLIC OFFICES COMMISSION, Petitioner,

v.Donna PATRICK, James K. Barnett, and John P. Lambert, Respondents.

Supreme Court No. S-17649

Supreme Court of Alaska.

September 3, 2021

Laura Fox, Senior Assistant Attorney General, Anchorage, and Clyde "Ed" Sniffen, Jr., Acting Attorney General, Juneau, for Petitioner.

Jason Harrow and Lawrence Lessig, Equal Citizens, Los Angeles, California, and Elizabeth Hodes and M. Scott Broadwell, Davis Wright Tremaine LLP, Anchorage, for Respondents.

Before: Bolger, Chief Justice, Winfree, Maassen, and Carney, Justices. [Borghesan, Justice, not participating.]

OPINION

CARNEY, Justice.

I. INTRODUCTION

In 2012 the Alaska Public Offices Commission (APOC) issued an advisory opinion stating that the contribution limits in Alaska's campaign finance law are unconstitutional as applied to contributions to independent expenditure groups. In 2018 three individuals filed complaints with APOC alleging that independent expenditure groups had exceeded Alaska's contribution limits. APOC declined to enforce the contribution limits based on its advisory opinion. The individuals appealed to the superior court, which reversed APOC's dismissal of the complaints and ordered APOC to reconsider its advisory opinion in light of a recent Ninth Circuit Court of Appeals decision. APOC appealed, arguing that it should not be required to enforce laws it views as unconstitutional and that its constitutional determination is correct. Because it was error to reverse APOC's dismissal of the complaints, we reverse the superior court's order.

II. FACTS AND PROCEEDINGS

A. Alaska's Campaign Finance Laws

Alaska's campaign finance laws distinguish between campaign contributions — that is, payments to a candidate, political party, or other group for the purpose of influencing an election — and campaign expenditures, which are transactions that secure goods or services to influence an election.¹ For example, an individual's payment to a political party would be a contribution; if the party then spent that money on a political advertisement, the party's spending would be an expenditure.² Expenditures can be either coordinated or independent; an "independent expenditure" is one "made without the direct or indirect consultation or cooperation with, or at the suggestion or the request of, or with the prior consent of, a candidate, a candidate's campaign treasurer or deputy campaign treasurer, or another person acting as a principal or agent of the candidate."³ At issue in this case is AS 15.13.070, the campaign finance law that limits campaign contributions to candidates, groups, and parties.

In January 2010 the United States Supreme Court issued a landmark decision in Citizens United v. Federal Election Commission , striking down restrictions on independent expenditures by corporations as an unconstitutional restriction on free speech and holding that "quid pro quo corruption" is the only form of corruption that could be targeted by campaign finance limits.⁴ Citizens United did not directly address restrictions on contributions to independent expenditure groups.⁵

In February 2010 Alaska's then-Attorney General Dan Sullivan prepared a memorandum analyzing the impact of Citizens United on Alaska campaign finance election laws. The memorandum concluded that Alaska's prohibitions on independent expenditures by corporations and labor unions were likely unconstitutional but that its laws regulating "contributions to candidates, coordinated expenditures, disclaimers, and disclosures are not directly affected."

In 2012 APOC issued a unanimous advisory opinion at the request of a group that sought to "take in unlimited contributions from the public to make independent expenditures only." APOC's advisory opinion stated that "contributions to [groups] are currently limited by Alaska's campaign finance laws. However, it appears to APOC staff that the United States Supreme Court's decision in Citizens United v. FEC has potentially rendered these restrictions unconstitutional as applied to groups that make only independent expenditures." APOC's advisory opinion cited several federal cases which had overturned limits on contributions to independent expenditure groups and concluded, "APOC Staff recommends that [the group's] proposed contribution activity be allowed because the statutory limitation to that activity may be unconstitutional."

B. Commission Proceedings

In January 2018 Donna Patrick, James K. Barnett, and John P. Lambert (collectively Patrick) filed identical complaints with APOC against two independent expenditure groups. The complaints alleged that the groups had accepted contributions from individuals and groups in excess of the limits imposed by AS 15.13.070(b) - (c). Subsection (b) of the statute limits contributions from individuals to groups, while subsection (c) limits contributions from groups to other groups.

APOC's staff rejected the complaints because they "concern[ed] transactions and activity described and indistinguishable from the activity in an approved advisory opinion" and cited its 2012 advisory opinion. Patrick requested that APOC review its staff's decision.

APOC considered Patrick's request at its February 2018 meeting. Patrick argued that the advisory opinion was incorrect and should be reconsidered, but APOC's staff attorney argued that it was still valid. In March APOC issued an order affirming the denial of Patrick's complaints. It cited AS 15.13.374(e)(1)-(2), which prohibits APOC from considering a complaint about activities approved in an advisory opinion,⁶ and concluded that the 2012 advisory opinion prevented it from considering Patrick's complaints.

C. Administrative Appeal

Patrick appealed APOC's decision to the superior court, arguing that the contribution limits were constitutional because the Framers of the United States Constitution had a broader view of corruption than the quid pro quo corruption identified in Citizens United . The superior court allowed Patrick to present expert testimony on the Framers’ understanding of corruption, which Patrick argued was key to her position that the contribution limits in AS 15.13.070 are constitutional as applied to independent expenditure groups. The court heard testimony from Patrick's expert witnesses in October 2018.

In November 2019 the superior court reversed APOC's dismissal of the complaints and remanded for APOC to consider the complaints in light of a Ninth Circuit decision, Thompson v. Hebdon .⁷ The Thompson court upheld Alaska's limit on individual contributions to all groups, but the Supreme Court later vacated the decision.⁸ On remand the Ninth Circuit recently struck down that contribution limit as unconstitutional.⁹

The superior court also "encourage[d] all parties to seek immediate review," recommended that we grant review, and declined to rule on the constitutionality of AS 15.13.070. APOC petitioned for review, which we granted. We ordered the parties to address both the underlying constitutional issue and APOC's authority to decline to enforce a law it deems unconstitutional.

APOC argues that it was prevented by statute from considering complaints concerning activity approved in an advisory opinion, that its advisory opinion holding AS 15.13.070 unconstitutional as applied was correct, and that it has discretion to refuse to enforce laws it considers unconstitutional. Patrick agrees that APOC had authority to decline to enforce a law it determined was unconstitutional, but argues that the law is constitutional based on a novel originalist interpretation of the Constitution that the Supreme Court has not considered.

III. STANDARD OF REVIEW

"Constitutional issues are questions of law subject to independent review."¹⁰ "We ... substitute our own judgment for" the agency's when deciding questions of law "[w]hen the statutory interpretation does not involve agency expertise, or the agency's specialized knowledge and experience would not be particularly probative."¹¹

IV. DISCUSSION

The superior court declined to decide whether Alaska's contribution limit is constitutional as applied to independent expenditure groups. Although neither this court nor the Supreme Court has addressed the issue, APOC argues that limits on contributions to independent expenditure groups are unconstitutional in light of Citizens United and subsequent federal appellate cases. Patrick acknowledges that "a line of federal appellate cases" has held that limiting such contributions is unconstitutional but argues that those "cases were wrongly decided because the courts ... were not presented with evidence about the original understanding of the term ‘corruption.’ " We are not persuaded by Patrick's argument and hold that AS 15.13.070 ’s limits on contributions to independent expenditure groups are unconstitutional.

A. Thompson v. Hebdon Is Not Dispositive.

The superior court based its decision on the original Ninth Circuit decision in Thompson . But even before Thompson was overturned, the superior court's reliance on it was misplaced. Thompson concerns the constitutionality of Alaska's contribution limits in general; this case addresses the constitutionality of those contribution limits only as applied to independent expenditure groups.¹² There is only partial overlap between the contribution limits addressed by Thompson and the ones at issue in this case.¹³ And "[a]n as-applied [constitutional] challenge requires evaluation of the facts of the particular case in which the challenge arises."¹⁴

More relevant to this case are two other Ninth Circuit cases in which the court indicated that contribution limits in other states were unconstitutional as applied to independent expenditure groups.¹⁵ Because the issue in this case is the more precise question of the constitutionality of contribution limits as applied to independent expenditure groups, those cases are more pertinent to our analysis. Indeed, APOC has raised a concern that if it is required to prosecute...