SCOTUS OPINION REVIEW: Thompson v. Hebdon (Election Contribution Limits)

Lloenflys

"Certainty is an illusion ..."
Honoured Citizen
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It has ... horrifyingly .... been well over two months since this paper put out any content. But rather than lament the failings of the past, it's time to buckle down and put out some content! We'll start with a review of the first Supreme Court opinion of the term, which was a per curium decision released by the Court on November 25.

This case involves Alaska's candidate contribution limits, which are quite low - $500 per year to a candidate for office (regardless of what office it is), and $500 per year to an election-oriented group that isn't an actual political party. The rules for contributions directly to parties are different and not issue in this case. The petitioners in the case want to give more than that to their preferred candidates, but Alaska refuses to allow them to do so. The District Court and Court of Appeals below both ruled in favor of Alaska and upheld the contribution limits.

In analysing the case, the Court made note of the fact that the lower courts did not pay attention to a previously decided Supreme Court case called Randall v. Sorrell (2006), in which the Court considered campaign limitations imposed by Vermont that were found to be too low. The lower courts had declined to apply Randall because no one opinion controlled the case - but the Supreme Court noted that the discussion of contribution limits was nonetheless valid and appropriate for these purposes and that the 9th Circuit couldn't simply wander off on its own.

While the Court did not decide the case for the 9th Circuit, it did make pretty clear that it has concerns with Alaska's low ceiling. First, the $500 per year limit in Alaska is much lower than the lower limit ever accepted by the Court in another jurisdiction, which is over twice as much. Second, Alaska does not distinguish between funds raised for the primary election and the general election. Further, Alaska does not index its limits to different offices, meaning a Gubernatorial candidate can raise the same amount as a candidate for a less highly respected or significant an office. Finally, Alaska does not make any provision in the law for indexing its limit to inflation. All of these issues present challenges for the Court, which it describes as "danger signs." Therefore, with these danger signs all being present, the Court granted certiorari on this case and, without waiting for oral arguments, just summarily sent it back to the circuit court of appeals to consider these factors in light of the Randall decision.

Justice Ginsburg issued the only signed opinion in the case, essentially a concurrence, saying that she doesn't oppose the case being sent back for reconsideration, but she wanted to point out that Alaska really is different. For example, the individual to candidate and individual-to-group restrictions may be quite low in Alaska, but they have a much higher limits for political party contributions. Further, Alaska's contributions to state government elections come almost entirely from the oil and gas industry, making it much more susceptible to corruption. While Ginsburg did not say that these reasons automatically will be enough to satisfy the Randall requirement, her concurrence was meant as a reminder to the Court below that despite the Per Curiam reversal, the issue should still be fully analysed below.

In the end, the Alaska limits are unlikely to survive scrutiny. Not indexing to inflation in particular seems to be a mistake, as the real value of the funds available will shrink remarkably over time. In fact, it has been over 20 years since the Alaska limits were passed, and no adjustment has been made. Limits that are too low present the real risk of candidates being unable to fund legitimate campaigns, and that inevitably helps incumbents (who have a built in name recognition and legitimacy advantage) and therefore morphs our democracy unnaturally. For a Court already hostile to campaign finance limitations, this is low hanging fruit and the Alaska limits are almost certainly doomed.
 
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