Alaska could have a $1,500 campaign contribution limit, but a regulator’s internal emails raise questions

Published: Nov. 4, 2021 at 4:20 PM AKDT
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JUNEAU, Alaska (KTUU) - Staff at the Alaska Public Offices Commission have proposed a $1,500 annual campaign contribution limit after a lower cap was struck down as unconstitutional.

The recommendations still need to be approved by the commission in January, but an email, inadvertently sent to Alaska’s News Source in August, casts doubt on whether that approach is legally sound. At that time, the Ninth Circuit Court of Appeals was debating if it would rehear the case.

When asked what would happen if the court struck down Alaska’s campaign contribution limits, Tom Lucas, campaign disclosure coordinator at APOC, initially said by email that there would be no limits. A few minutes later, he said that statement would need to be corrected.

“However, there is an argument that the limits would revert to the $1,000 that was in place before the $500 limit took effect,” said Heather Hebdon, executive director of APOC, by email. “Once a mandate is issued, staff will be in a position to make a recommendation to the Commission and the Commission would be the final decision-maker in the matter, at least until the Legislature was able to act.”

Minutes after Hebdon’s statement was sent, Lucas then accidentally sent an email to both Alaska’s News Source and Hebdon, casting doubt on what Hebdon had just written.

“I like yours far better than what I was thinking of doing,” Lucas wrote. “But, I gotta tell you, it would be hard to make the reversion argument with a straight face after reading our memo from Morgan.”

Assistant Attorney General Morgan Griffin appears to be the “Morgan” referred to by Lucas. She provides legal advice to APOC.

Lucas said the memo could not be made public because it is privileged and confidential. Attorney-client privilege is protected, but the client, in this case APOC, can release that information if they chose to waive that.

Alaska’s News Source decided not to publish the email chain in late August as the court had not decided if it would rehear the case and staff were still debating how they would proceed. Lucas and Hebdon were both grateful for that.

In late October, the appeals court declined to rehear the case, effectively ending the yearslong legal battle over Alaska’s $500 annual campaign limit from individuals to candidates. Legal experts said that likely meant Alaska would see unlimited campaign donations in some cases unless the Legislature acted.

On Wednesday, APOC staff’s opinion was issued, calling for the state’s campaign finance laws to revert back to an old statute with some changes. Alaska’s News Source informed Lucas and Hebdon that the internal email chain would be published on Thursday as a matter of public interest and that they had until 3:30 p.m. to respond.

Hebdon provided a detailed response later in the day, but said she was “disappointed” at the choice to publish Lucas’ email after receiving assurances that would not happen. She said that she would not be providing the memo from the Department of Law.

“However, staff relied on various portions of that memo in drafting our recommendation, even if the ultimate course of action differed. The memo’s written advice was also starkly different than what staff, through conversations with our attorney, had been led to believe, which was in essence, that the doctrine of revival should apply,” Hebdon said. “It seems that the original advice from staff’s attorney required vetting from higher up the chain before it was released to us and that the feedback had been that it needed to provide a broader perspective and that it should convey a likelihood that there is no longer an appetite to have contribution limits.”

Hebdon reiterated that it will be the commission that makes the decision on staff recommendations. Those recommendations, she said, are an effort to prevent there being a period of time between the court’s decision and the Legislature’s ability to act where there is no guidance on what campaign limits, if any, might apply.

“We believe it is reasonable and prudent to do so considering 2022 election cycles are already underway,” she added.

APOC staff call for a new $1,500 campaign contribution limit with status in “limbo”

Commission staff proposed that Alaska’s campaign finance caps should revert to limits set under old statutes, but they would be adjusted for inflation.

  • There would be a $1,500 limit per year on individuals giving to candidates, tripled from the old cap
  • There would also be a $3,000 limit per year on non-political party groups giving to candidates

The opinion states that staff decided to restore the old limits based on “the doctrine of revival.” That doctrine, used in other states, has brought statutes back into “full force and effect” when a subsequent law is found to be unconstitutional.

Robin Brena, attorney for the plaintiffs who successfully challenged Alaska’s $500 limit, says that is nonsensical. He says that the old statute has all the same “constitutional infirmities” of the $500 limit.

And, he says that staff aren’t just recommending reviving a statute, they’re calling for it to be amended to adjust for inflation which he says far exceeds the role of a regulatory body.

“I think this is best left to the Legislature,” Brena said. “And, what in the heck are they doing over there? Restricting Alaskans’ free speech rights and making policy decisions about campaign contributions in Alaska, and they’re an agency.”

Anchorage Democratic Sen. Bill Wielechowski, an attorney, said that Alaskans have voted for campaign limits through the state’s initiative process and courts have long weighed that heavily when making rulings.

He says Alaska’s contribution limits are currently in “limbo” and is drafting legislation that calls for a limits similar to the one recommended by APOC staff.

Whatever the commission and the Legislature decides, legal challenges are expected.

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