Without action from lawmakers, triple the cash can flow into Alaska campaigns this year

Jan. 30—Candidates in Alaska's local and state-level elections this year will be able to collect campaign contributions triple the amount allowed in past races, but lingering uncertainty about the rules means those limits could be raised, lowered or even eliminated altogether before Election Day.

State lawmakers and campaign finance regulators are still processing a ruling handed down last year by a federal appeals court that threw out Alaska's longstanding $500-per-person, per-year limit on donations to political candidates.

For now, the Alaska Public Offices Commission, which polices the state's campaign finance rules, has raised those limits to $1,500 — and to $3,000 for political groups, up from $1,000.

But the new rules are disputed, and because they're a preliminary proposal from the commission's staff, APOC's five commissioners could still vote to change them at an upcoming meeting. State lawmakers have also proposed new limits of their own, though action on those proposals is uncertain during this year's legislative session.

The result is that individual donors can send more cash directly to political candidates — some of whose recent campaigns have paled in comparison to the super PAC-like independent expenditure groups that can raise and spend unlimited sums, as long as their efforts aren't coordinated with candidates.

Robin Brena, the Anchorage attorney and political donor who helped represent the winners in the recent campaign finance litigation, argued that last year's appeals court decision "won't add a penny to the amount of money flowing into our political system."

"Instead of it flowing to dark money, independent expenditure groups, a higher proportion of it will flow directly to the candidate," Brena said in a phone interview this week. "And I personally believe our democracy is better met by having the candidate receive the funds and taking the microphone away from these groups. It'll give money to who's accountable."

The continuing debate over the limits hinges on fundamental, unresolved questions about money in politics: How much of a risk of corruption comes along with it, and how sharply does that justify limiting the constitutional rights to free speech that federal judges have equated to campaign donations?

The U.S. Supreme Court, in its landmark 2010 Citizens United decision, said there was no risk or even appearance of quid pro quo corruption — trading official favors for financial support — as long as political spending isn't coordinated with a candidate. The ruling newly allowed unlimited corporate and union contributions to super political action committees, or PACs, and independent expenditure groups, which are legally barred from communicating or coordinating with the candidates they support or oppose.

[Explainer: How Alaska's unique new election system will work]

But Citizens United also acknowledged that direct donations to candidates still do risk quid pro quo corruption, and allowed limits on them to remain.

Alaska's $500-per-person cap, however, was one of the nation's lowest.

State lawmakers originally set the limit in 1996 in response to a citizens initiative co-sponsored by David Finkelstein, a Democratic lawmaker at the time. Once it was in effect, politicians complained that "they had to work harder; they had to contact more people," Finkelstein said in a phone interview. To him, "all those things are selling points," he said.

But seven years later, the Legislature doubled the limits, citing inflation, according to former state Rep. Eric Croft.

That prompted Croft and others to propose another initiative to bring the limits back down, which passed in 2006 with the support of 73% of voters — coming amid the VECO scandal in which lawmakers accepted cash bribes in exchange for votes favorable to the oil industry.

Both the 1995 and the 2006 efforts "show a pretty significant feeling in Alaska that we want low contribution limits," Croft said. But in 2015, a group of conservative activists, plus an Anchorage district of the Alaska Republican Party, filed a federal lawsuit challenging the $500 cap, along with other campaign finance restrictions.

The group's lead lawyer was originally Kevin Clarkson, who later served as Alaska's attorney general under GOP Gov. Mike Dunleavy.

Over six years, during which one of the plaintiffs died, the lawsuit wound its way up to and back down from the U.S. Supreme Court, which rejected lower court decisions upholding Alaska's individual donation limits.

A 9th U.S. Circuit Court of Appeals panel, on direction from the Supreme Court, ruled in July that the limits unconstitutionally restrict free speech.

In its decision, which relied on a separate 2006 Supreme Court ruling, the appeals panel said Alaska's $500 cap was lower than nearly every other state's and wasn't indexed to inflation; the justices also argued that it "significantly restricted the amount of funds available to challengers to run competitively against incumbents."

The appeals panel threw out Alaska's limits on donations to candidates and political groups, along with a cap on the share of overall campaign fundraising that could come from nonresident donors. But the ruling did not impose new limits, leaving the state's rules uncertain.

In response, APOC staff released an advisory opinion raising the $500 cap to $1,500, reasoning that the limits could be returned to the $1,000 that lawmakers set before the last initiative, then raised to account for inflation.

APOC's five commissioners were set to consider the proposal at a meeting Wednesday. But the issue was postponed because the commission was unable to find an independent attorney to advise them in time.

One of the commissioners, Van Lawrence, said they may take up the "high priority" issue in a February meeting, "just to try to eliminate some of the uncertainty." But ultimately, he said, the decision on campaign limits is up to the Legislature.

"We have a role," he said. "But the Legislature has a much bigger role."

Several legislators have proposed bills outlining new contribution limits of varying sizes, from as little as $700 for individual contributions to state House and municipal candidates to as high as $1,500 for gubernatorial candidates, with amounts adjusted periodically for inflation.

"I'm concerned about money pouring in this year, in a way no one has seen before," said Rep. Andy Josephson, D-Anchorage. "If we don't pass a law, there's going to be an issue in this upcoming campaign."

But all of the bills were proposed by Democratic or independent legislators, and none appears likely to pass in the current legislative session. Sen. Mike Shower, R-Wasilla, chairs the Senate State Affairs committee that has jurisdiction over campaign finance, and he said his panel has other priorities this year.

It will be "pretty tough to see something like that making it through this year with everything else that's going on," Shower said.

In the meantime, campaigns are operating "in limbo land," said Paula DeLaiarro, who consults on fundraising and finance issues for progressive candidates and causes.

DeLaiarro said she still sees many $500 checks arriving for candidates, but some $1,500 donations are already coming in, too. She said she's worried that raising the contribution limit will have a chilling effect on smaller contributions.

"People perhaps think, 'Oh, gee, I can only afford $25, it's probably not even worth it.' And then you get into the whole issue of whose free speech is worth more than mine," she said.

Additional cash for campaigns could translate to more radio ads and campaign mail. But it could take time before campaigns see a significant spike in donations, as the public learns about the higher limits.

Supporters of lower limits say they're worried that raising them could make candidates more captive to their donors; Croft said that tripling the $500 cap would give contributors triple the influence.

"Regular $500 contributors get their phone calls answered: I'm not ignoring them. If they want to go to lunch and talk about something that's important to them, I'm at least doing that," said Croft, who served in the Legislature between 1997 and 2006. As the contribution limit rises, he added, "it just gets harder and harder to be that objective."

But Brena, the attorney who worked on the lawsuit to overturn the limits, argues that even if the cap is kept low, donors will still wield influence through unlimited donations to super PACs and independent spending groups.

Brena, who's donated hundreds of thousands of dollars to candidates, independent expenditure groups and initiatives in Alaska — including the failed 2020 campaign to raise oil taxes — said he thinks APOC lacks legal authority to set new limits on its own.

And he thinks lawmakers should try getting rid of donation caps altogether, as roughly a dozen states have done for statewide elections.

"I'm a free speech Alaskan kind of guy, and I don't like to be told by my government, or babysat by my government, just because of a false moral code that suggests they're somehow addressing the issue of money," Brena said. "Let's quit the false narratives, face the fact that law-abiding citizens should be able to exercise their free speech rights however the hell they want. And if somebody breaks the law, they ought to be in jail for as long as possible."