Courts Weighing Challenges to Sensible Control of Political Money

Posted by Dale Eisman on August 22, 2017


A pair of lawsuits making their way through the courts in Alaska and New York State have important implications for efforts to rein in the power of big money in American politics.

Thompson v. Hebdon, set to be heard by the 9th U.S. Circuit Court of Appeals, is a challenge to Alaska law that limits the amount of money candidates for state office can receive from out-of-state donors. Plaintiff David Thompson, who lives in Wisconsin, argues that the restriction violates his free speech rights.

The New York case, Citizens United v. Schneiderman, centers on a New York law that requires tax exempt “social welfare organizations” to disclose their political spending to the state attorney general’s office. Though the state does not make the information public, Citizens United argues that the required disclosure to Attorney General Eric Schneiderman’s office discourages donors from exercising their free speech rights.

Citizens United is best known as the plaintiff in the 2010 Supreme Court decision that banned limits on what corporations, trade groups and unions can spend to promote or attack candidates for public office. In that case, the high court said caps on contributions to candidates and political parties are permissible but that companies and groups have a constitutional right to unlimited “independent” spending.

A win for the plaintiff in either of the current cases would deprive authorities – and by extension the public – of important tools in their efforts to battle public corruption.

Slate.com reports that Thompson filed his suit after receiving a refund of his $100 contribution to the reelection campaign of former Alaska State Rep. Wes Keller, his brother-in-law. Keller returned the money because he had already exceeded the state imposed cap of $3,000 on out-of-state political donations to state House candidates.

“I thought [the cap] was pretty restrictive and it held up my ability to speak out, Thompson told Alaska Dispatch News.

But Alaska’s lawyers argue that the same logic that has led the Supreme Court to approve of restrictions on foreign contributions to candidates for federal office should be applied to uphold Alaska’s limits on out-of-state contributions to candidates for state office.

“Just as a Canadian citizen is not part of the political community governed by the U.S. federal government, a Florida resident is not part of the political community governed by the Alaska state government,” the state’s lawyers argue in a brief to the 9th Circuit.

In the New York case, the New York Law Journal reports that during a hearing on Monday judges of the 2nd Circuit Court of Appeals appeared to take a dim view of Citizens United’s claims that donor disclosure violates free speech rights.

"There's a kind of oddness about the policy of the First Amendment to promote public, open discourse and your position that somebody should be able to do something that's called speech but in secret so that no one finds out about it," Judge Pierre Leval told Michael Boos, Citizens United’s lawyer.

Citizens United argues that its donors could be targets of harassment or retaliation if their donations became public or were disclosed to state officials. They note that the Supreme Court in 1958 ruled that the NAACP could not be required to turn over its membership lists to state authorities.

But Barbara Underwood, New York’s solicitor general, said NAACP members faced clear threats of physical violence. Citizens United’s donors are simply trying to avoid public criticism that might flow from disclosure of their spending, Underwood told the court.

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Office: Common Cause Alaska, Common Cause National, Common Cause New York

Issues: Money in Politics

Tags: Fighting Big Money, Disclosure

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