Thompson v. Hebdon

909 F.3d 1027

David THOMPSON; Aaron Downing; Jim Crawford; District 18 of the Alaska Republican Party, Plaintiffs-Appellants,

v.Heather HEBDON, in Her Official Capacity as the Executive Director of the Alaska Public Offices Commission; Tom Temple ; Irene Catalone; Ron King; Robert Clift ; Adam Schwemley, in Their Official Capacities as Members of the Alaska Public Offices Commission, Defendants-Appellees.

No. 17-35019

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 11, 2018 Anchorage, Alaska

Filed November 27, 2018

Kevin G. Clarkson (argued) and Matthew C. Clarkson, Brena Bell & Clarkson P.C., Anchorage, Alaska, for Plaintiffs-Appellants.

Laura Fox (argued), Assistant Attorney General, Department of Law, Anchorage, Alaska, for Defendants-Appellees.

Brian A. Sutherland, Reed Smith LLP, San Francisco, California; M. Patrick Yingling, Reed Smith LLP, Chicago, Illinois; Brent Ferguson and Daniel I. Weiner, Brennan Center for Justice, New York, New York; for Amicus Curiae Brennan Center for Justice at NYU School of Law.

Ronald A. Fein and John C. Bonifaz, Free Speech for People, Newton, Massachusetts, for Amici Curiae Free Speech for People and Professor David Fontana.

Tara Malloy, Noah B. Lindell, Megan P. McAllen, and Mark P. Gaber, Campaign Legal Center, Washington, D.C., for Amicus Curiae Campaign Legal Center.

Before: Sidney R. Thomas, Chief Judge, and Consuelo M. Callahan and Carlos T. Bea, Circuit Judges.

Partial Concurrence and Partial Dissent by Chief Judge Thomas

OPINION

CALLAHAN, Circuit Judge:

We must decide whether an Alaska law regulating campaign contributions violates the First Amendment. At issue are Alaska's limit on contributions made by individuals to candidates, its limit on contributions made by individuals to election-related groups, its limit on political party-to-candidate contributions, and its limit on the total funds a candidate may receive from out-of-state residents. The district court upheld all four provisions against a constitutional challenge by three individuals and a subdivision of the Alaska Republican Party. Affirmance on the individual-to-candidate and individual-to-group limits is compelled by Lair v. Motl , 873 F.3d 1170 (9th Cir. 2017) ( Lair III ), reh'g en banc denied , 889 F.3d 571 (9th Cir. 2018), and California Medical Ass'n v. FEC , 453 U.S. 182, 101 S.Ct. 2712, 69 L.Ed.2d 567 (1981), respectively, and we also uphold the political party-to-candidate limit. However, we reverse as to the nonresident limit. While the first three restrictions are narrowly tailored to prevent quid pro quo corruption or its appearance and thus do not impermissibly infringe constitutional rights, the nonresident limit does not target an "important state interest" and therefore violates the First Amendment.

I.

A.

Alaska has long regulated campaign contributions to political candidates. In 1974, Alaska enacted a statute prohibiting individuals from contributing more than $1,000 annually to a candidate. See Alaska v. Alaska Civil Liberties Union , 978 P.2d 597, 601 (Alaska 1991). One former Alaska state representative testified in the bench trial in this case that, even under this $1,000 limit, "there was an inordinate influence from contributions on the actions of the legislature." Thompson v. Dauphinais , 217 F.Supp.3d 1023, 1029 (D. Alaska 2016). A former member of the Anchorage Assembly, Charles Wohlforth, 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." Id . at 1030 (alteration in original).

In 1996, the Alaska Legislature enacted a revised campaign finance law "to restore the public's trust in the electoral process and to foster good government." 1996 Alaska Sess. Laws ch. 48 § 1(b). Among other things, the law lowered the annual limit on contributions by individuals to a candidate from $1,000 to $500 and set a $500 limit on annual contributions by individuals to a group that is not a political party. Id . §§ 10–11. The law also set aggregate limits on the amount candidates could accept from nonresidents of Alaska. In 2003, the Alaska legislature revised the 1996 law by raising the individual-to-candidate and individual-to-group limits from $500 to $1,000. 2003 Alaska Sess. Laws ch. 108, §§ 8–10.

In 2006, a ballot initiative—Ballot Measure 1 (the "2006 Initiative")—proposed a further revision of the limits. 2006 Alaska Laws Initiative Meas. 1, § 1. The 2006 Initiative is the law at issue here. The 2006 Initiative returned the individual-to-candidate and individual-to-group limits to their pre-2003 levels of $500 per year. Alaska Stat. § 15.13.070(b)(1). It also capped the amount a non-political party group could contribute to a candidate at $1,000, restricted the amount candidates could receive from nonresidents to $3,000 per year, and limited the amount a political party—including its subdivisions—could contribute to a candidate. Alaska Stat. §§ 15.13.070(c) & (d), 15.13.072(a)(2) & (e)(3), 15.13.400(15). The voter information packet included the following statement of the 2006 Initiative's purpose:

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.

The 2006 Initiative passed with 73% of the popular vote.

B.

Plaintiffs are three individuals and a subdivision of the Alaska Republican Party. In 2015, Plaintiffs brought a First Amendment challenge against Defendants, Alaska public officials, targeting, as relevant to this appeal, (1) the $500 annual limit on an individual contribution to a political candidate, (2) the $500 limit on an individual contribution to a non-political party group, (3) annual limits on what a political party—including its subdivisions—may contribute to a candidate, and (4) the annual aggregate limit on contributions a candidate may accept from nonresidents of Alaska. Plaintiffs sought a declaratory judgment that each of the challenged provisions is unconstitutional, a permanent injunction prohibiting enforcement of the challenged provisions, and costs and attorney's fees under 42 U.S.C. § 1983. Thompson , 217 F.Supp.3d at 1027.

Two of the Plaintiffs, Aaron Downing and Jim Crawford, are Alaska residents who wanted to, but legally could not, contribute more than $500 to individual candidates running for state or municipal office. Crawford would also like to give more than $500 to a non-political party group. David Thompson is a Wisconsin resident whose brother-in-law is Alaska State Representative Wes Keller. Thompson sent Keller a $100 check for his campaign in 2015, but Keller returned the check because the campaign had already hit the $3,000 nonresident limit. Finally, District 18 is a subdivision of the Alaska Republican Party that was limited in the amount it could give to Amy Demboski's mayoral campaign due to Alaska's aggregate limit on the amount a campaign can accept from a political party.

After granting Alaska's motion for partial summary judgment for lack of standing on certain of Plaintiffs' claims,¹ the district court held a seven-day bench trial. In November 2016, the district court issued a decision rejecting all of Thompson's remaining claims. Thompson , 217 F.Supp.3d at 1027–40. Applying the intermediate scrutiny standard for evaluating contribution limitations set forth in Montana Right to Life Ass'n v. Eddleman , 343 F.3d 1085 (9th Cir. 2003), the district court determined that each of the four challenged provisions was aimed at the "important state interest" of combating quid pro quo corruption or its appearance, and was "closely drawn" to meet that interest. Thompson , 217 F.Supp.3d at 1040. Plaintiffs (collectively, "Thompson") timely appealed.

II.

"We review a district court's legal determinations, including constitutional rulings, de novo. " Berger v. City of Seattle , 569 F.3d 1029, 1035 (9th Cir. 2009) (en banc). "When the issue presented involves the First Amendment ... [h]istorical questions of fact (such as credibility determinations or ordinary weighing of conflicting evidence) are reviewed for clear error, while constitutional questions of fact (such as whether certain restrictions create a ‘severe burden’ on an individual's First Amendment rights) are reviewed de novo. " Prete v. Bradbury , 438 F.3d 949, 960 (9th Cir. 2006).

III.

"The starting place in the analysis of the constitutionality of campaign finance reform legislation is Buckley v. Valeo , 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) [ (per curiam) ]." Eddleman , 343 F.3d at 1090. The Court in Buckley explained that limitations on campaign contributions implicate the contributor's First Amendment rights. Buckley , 424 U.S. at 20–21, 96 S.Ct. 612. But it distinguished limits on expenditures made by candidates from limits on contributions made to candidates. Id. The Court reasoned that the former amounts to a direct affront to the regulated entity's free speech rights, while the latter "entails only a marginal restriction upon the contributor's ability to engage in free communication." Id. at 19–21. Buckley further explained that

[a] contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing.... A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but

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