Are super PACs and dark money corrupting Alaska politics? State court to hear both sides Thursday

Published: Oct. 3, 2018 at 7:04 PM AKDT
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Have super PACs led to political corruption?

One side of a legal case set to be argued Thursday in Anchorage says they have, and the complainants — three Alaskans represented by a lawyer from Boston-based nonprofit Equal Citizens — says the state’s campaign finance watchdog should enforce state law to reign in super PACs.

The Equal Citizens case is challenging a decision by the Alaska Public Offices Commission to adopt federal law allowing super PACs — called independent expenditure groups in Alaska — to raise and spend unlimited sums on behalf of political candidates. The only rule they must follow: they can’t coordinate their efforts with the candidate they’re backing.

This year, independent expenditure groups have formed to support all three of the major candidates for governor: Republican Mike Dunleavy, independent Gov. Bill Walker and Democrat Mark Begich. While most have raised little money, Dunleavy for Alaska is backed by a small group of wealthy donors. Frances Dunleavy, the candidate’s investor brother, a former Bear Stearns and JPMorgan executive from Texas has contributed $275,000. Retired Anchorage real estate developer Bob Penney has given $250,000. State limits would have held them to $500 contributions in 2017 and 2018.

Equal Citizens attorney Jason Harrow said even a decision in his favor would likely come too late to affect the November election. The legal challenge stems from the 2016 election.

The founder of Equal Citizens, Harvard law professor Lawrence Lessig, has been fighting the basis for the commission ruling — the 2010 U.S. Supreme Court case Citizens United — for most of the decade. With limited success, he’s tried to elect lawmakers who would work to defeat it. And now there’s the court case in Anchorage.

In an interview Wednesday, Harrow said Alaska presents an unusually good opportunity to fight Citizens United — Alaska had pre-existing campaign finance limits approved by a voter initiative, and its laws allow citizens to challenge Alaska Public Offices Commission decisions without having to prove specific harm.

The case now in front of Anchorage Superior Court Judge Andrew Peterson is a formal appeal of the commission’s 3-2 decision in March allowing unlimited contributions to conservative and liberal independent expenditure groups — one supported Sen. John Coghill, R-Fairbanks, and the other had large contributions from organized labor. The case could go to the Alaska Supreme Court after Peterson rules.

“We hope we can get the judge to say that the commission does have the power to just enforce the laws that are on the books, which impose some reasonable limits on the amount of money that groups and individuals can give to super PACs or other outside groups,” Harrow said.

If the case reaches the U.S. Supreme Court, Harrow doubts Citizens United would be overturned. But that wouldn’t be necessary to win the case against the Alaska Public Offices Commission, he said, because it was a lower court interpretation of Citizens United that led to the rejection of donation limits — an interpretation that Harrow said was too broad.

The two independent expenditure PACs that led to the case are no longer part of it — they were following the law as interpreted by the commission, Harrow said, and were properly dismissed months ago. The commission itself is being defended by the Alaska Department of Law, and its attorneys say that the commission followed constitutional law when it rejected the original complaints and allowed unlimited contributions to the independent expenditure PACs.

To prove its case, Equal Citizens intends to call two experts Thursday, including one Pulitzer-Prize winning history professor. They will testify that the founders of the United States were concerned about the corruptive effect of money in elections, Harrow said — and not just bribery, which the Supreme Court agreed should be illegal.

“That’s really not the way the framers would have thought of corruption,” Harrow said. “They certainly were concerned with briefcases of cash and bribery, which is mentioned in the Constitution, but they were also concerned with a government that wasn’t dependent on the people alone, which is one of the phrases in the Federalist Papers. They were concerned with a government that was dependent on all these special interests and big money, and they wanted to create a constitution that stopped that.”

Harrow said the hearing Thursday will probably close without further testimony, and then both sides would file written briefings before Judge Peterson rules.