David Thompson v. Heather Hebdon , 909 F.3d 1027 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID THOMPSON; AARON No. 17-35019
DOWNING; JIM CRAWFORD; DISTRICT
18 OF THE ALASKA REPUBLICAN D.C. No.
PARTY, 3:15-cv-00218-
Plaintiffs-Appellants, TMB
v.
OPINION
HEATHER HEBDON, in Her Official
Capacity as the Executive Director
of the Alaska Public Offices
Commission; TOM TEMPLE; IRENE
CATALONE; RON KING; ROBERT
CLIFT; ADAM SCHWEMLEY, in Their
Official Capacities as Members of
the Alaska Public Offices
Commission,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, Chief Judge, Presiding
Argued and Submitted June 11, 2018
Anchorage, Alaska
Filed November 27, 2018
2 THOMPSON V. HEBDON
Before: Sidney R. Thomas, Chief Judge, and Consuelo M.
Callahan and Carlos T. Bea, Circuit Judges.
Opinion by Judge Callahan;
Partial Concurrence and Partial Dissent by
Chief Judge Thomas
SUMMARY *
Civil Rights
The panel affirmed in part and reversed in part the
district court’s bench trial judgment and remanded for entry
of a judgment consistent with the panel’s opinion in an
action alleging that Alaska law regulating campaign
contributions violates the First Amendment.
Plaintiffs, three individuals and a subdivision of the
Alaska Republican Party, challenged: (1) the $500 annual
limit on an individual contribution to a political candidate,
(2) the $500 limit on an individual contribution to a non-
political party group, (3) annual limits on what a political
party—including its subdivisions—may contribute to a
candidate, and (4) the annual aggregate limit on
contributions a candidate may accept from nonresidents of
Alaska.
The panel held that affirmance on the individual-to-
candidate and individual-to-group limits was compelled by
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
THOMPSON V. HEBDON 3
Lair v. Motl, 873 F.3d 1170 (9th Cir. 2017) (Lair III), reh’g
en banc denied, 889 F.3d 571 (9th Cir. 2018), and California
Medical Ass’n v. FEC, 453 U.S. 182 (1981), respectively.
The panel also upheld the political party-to-candidate limit.
However, it reversed as to the nonresident limit. The panel
held that the first three restrictions were narrowly tailored to
prevent quid pro quo corruption or its appearance and thus
did not impermissibly infringe constitutional rights. The
nonresident limit, which at most, targeted contributors’
influence over Alaska politics, did not target an “important
state interest” and therefore violated the First Amendment.
Concurring in part and dissenting in part, Chief Judge
Thomas agreed with the majority that Alaska’s limitations
on individual contributions to candidates and election-
related groups and on political party contributions to
individual candidates did not violate the First Amendment.
However, he would hold that the nonresident aggregate
contribution limit, which furthers Alaska’s important state
interests in preventing quid pro quo corruption or its
appearance and in preserving self-governance, also did not
violate the First Amendment. Thus, Judge Thomas
respectfully dissented from Section III(B)(iv) of the majority
opinion.
COUNSEL
Kevin G. Clarkson (argued) and Matthew C. Clarkson,
Brena Bell & Clarkson P.C., Anchorage, Alaska, for
Plaintiffs-Appellants.
Laura Fox (argued), Assistant Attorney General,
Department of Law, Anchorage, Alaska, for Defendants-
Appellees.
4 THOMPSON V. HEBDON
Brian A. Sutherland, Reed Smith LLP, San Francisco,
California; M. Patrick Yingling, Reed Smith LLP, Chicago,
Illinois; Brent Ferguson and Daniel I. Weiner, Brennan
Center for Justice, New York, New York; for Amicus Curiae
Brennan Center for Justice at NYU School of Law.
Ronald A. Fein and John C. Bonifaz, Free Speech for People,
Newton, Massachusetts, for Amici Curiae Free Speech for
People and Professor David Fontana.
Tara Malloy, Noah B. Lindell, Megan P. McAllen, and Mark
P. Gaber, Campaign Legal Center, Washington, D.C., for
Amicus Curiae Campaign Legal Center.
OPINION
CALLAHAN, Circuit Judge:
We must decide whether an Alaska law regulating
campaign contributions violates the First Amendment. At
issue are Alaska’s limit on contributions made by individuals
to candidates, its limit on contributions made by individuals
to election-related groups, its limit on political party-to-
candidate contributions, and its limit on the total funds a
candidate may receive from out-of-state residents. The
district court upheld all four provisions against a
constitutional challenge by three individuals and a
subdivision of the Alaska Republican Party. Affirmance on
the individual-to-candidate and individual-to-group limits is
compelled by Lair v. Motl, 873 F.3d 1170 (9th Cir. 2017)
(Lair III), reh’g en banc denied, 889 F.3d 571 (9th Cir.
2018), and California Medical Ass’n v. FEC, 453 U.S. 182(1981), respectively, and we also uphold the political party-
THOMPSON V. HEBDON 5
to-candidate limit. However, we reverse as to the
nonresident limit. While the first three restrictions are
narrowly tailored to prevent quid pro quo corruption or its
appearance and thus do not impermissibly infringe
constitutional rights, the nonresident limit does not target an
“important state interest” and therefore violates the First
Amendment.
I.
A.
Alaska has long regulated campaign contributions to
political candidates. In 1974, Alaska enacted a statute
prohibiting individuals from contributing more than $1,000
annually to a candidate. See Alaska v. Alaska Civil Liberties
Union, 978 P.2d 597, 601 (Alaska 1991). One former
Alaska state representative testified in the bench trial in this
case that, even under this $1,000 limit, “there was an
inordinate influence from contributions on the actions of the
legislature.” Thompson v. Dauphinais, 217 F. Supp. 3d
1023, 1029 (D. Alaska 2016). A former member of the
Anchorage Assembly, Charles Wohlforth, testified that “the
system was rigged by money[ed] interests and that too
frequently the decisions of the assembly were controlled by
those interests and their desires, based on the kind of
contributions they would make.” Id. at 1030 (alteration in
original).
In 1996, the Alaska Legislature enacted a revised
campaign finance law “to restore the public’s trust in the
electoral process and to foster good government.” 1996
Alaska Sess. Laws ch. 48 § 1(b). Among other things, the
law lowered the annual limit on contributions by individuals
to a candidate from $1,000 to $500 and set a $500 limit on
annual contributions by individuals to a group that is not a
6 THOMPSON V. HEBDON
political party. Id. §§ 10–11. The law also set aggregate
limits on the amount candidates could accept from
nonresidents of Alaska. In 2003, the Alaska legislature
revised the 1996 law by raising the individual-to-candidate
and individual-to-group limits from $500 to $1,000. 2003
Alaska Sess. Laws ch. 108, §§ 8–10.
In 2006, a ballot initiative—Ballot Measure 1 (the “2006
Initiative”)—proposed a further revision of the limits. 2006
Alaska Laws Initiative Meas. 1, § 1. The 2006 Initiative is
the law at issue here. The 2006 Initiative returned the
individual-to-candidate and individual-to-group limits to
their pre-2003 levels of $500 per year. Alaska Stat.
§ 15.13.070(b)(1). It also capped the amount a non-political
party group could contribute to a candidate at $1,000,
restricted the amount candidates could receive from
nonresidents to $3,000 per year, and limited the amount a
political party—including its subdivisions—could
contribute to a candidate. Alaska Stat. §§ 15.13.070(c)
& (d), 15.13.072(a)(2) & (e)(3), 15.13.400(15). The voter
information packet included the following statement of the
2006 Initiative’s purpose:
Corruption is not limited to one party or
individual. Ethics should be not only
bipartisan but also universal. From the
Abramoff and Jefferson scandals in
Washington D.C. to side deals in Juneau,
special interests are becoming bolder every
day. They used to try to buy elections. Now
they are trying to buy the legislators
themselves.
The 2006 Initiative passed with 73% of the popular vote.
THOMPSON V. HEBDON 7
B.
Plaintiffs are three individuals and a subdivision of the
Alaska Republican Party. In 2015, Plaintiffs brought a First
Amendment challenge against Defendants, Alaska public
officials, targeting, as relevant to this appeal, (1) the $500
annual limit on an individual contribution to a political
candidate, (2) the $500 limit on an individual contribution to
a non-political party group, (3) annual limits on what a
political party—including its subdivisions—may contribute
to a candidate, and (4) the annual aggregate limit on
contributions a candidate may accept from nonresidents of
Alaska. Plaintiffs sought a declaratory judgment that each
of the challenged provisions is unconstitutional, a permanent
injunction prohibiting enforcement of the challenged
provisions, and costs and attorney’s fees under 42 U.S.C.
§ 1983. Thompson, 217 F. Supp. 3d at 1027.
Two of the Plaintiffs, Aaron Downing and Jim Crawford,
are Alaska residents who wanted to, but legally could not,
contribute more than $500 to individual candidates running
for state or municipal office. Crawford would also like to
give more than $500 to a non-political party group. David
Thompson is a Wisconsin resident whose brother-in-law is
Alaska State Representative Wes Keller. Thompson sent
Keller a $100 check for his campaign in 2015, but Keller
returned the check because the campaign had already hit the
$3,000 nonresident limit. Finally, District 18 is a
subdivision of the Alaska Republican Party that was limited
in the amount it could give to Amy Demboski’s mayoral
campaign due to Alaska’s aggregate limit on the amount a
campaign can accept from a political party.
After granting Alaska’s motion for partial summary
judgment for lack of standing on certain of Plaintiffs’
8 THOMPSON V. HEBDON
claims, 1 the district court held a seven-day bench trial. In
November 2016, the district court issued a decision rejecting
all of Thompson’s remaining claims. Thompson, 217 F.
Supp. 3d at 1027–40. Applying the intermediate scrutiny
standard for evaluating contribution limitations set forth in
Montana Right to Life Ass’n v. Eddleman, 343 F.3d 1085(9th Cir. 2003), the district court determined that each of the
four challenged provisions was aimed at the “important state
interest” of combating quid pro quo corruption or its
appearance, and was “closely drawn” to meet that interest.
Thompson, 217 F. Supp. 3d at 1040. Plaintiffs (collectively,
“Thompson”) timely appealed.
II.
“We review a district court’s legal determinations,
including constitutional rulings, de novo.” Berger v. City of
Seattle, 569 F.3d 1029, 1035 (9th Cir. 2009) (en banc).
“When the issue presented involves the First Amendment
. . . [h]istorical questions of fact (such as credibility
determinations or ordinary weighing of conflicting
evidence) are reviewed for clear error, while constitutional
questions of fact (such as whether certain restrictions create
a ‘severe burden’ on an individual’s First Amendment
rights) are reviewed de novo.” Prete v. Bradbury, 438 F.3d
949, 960 (9th Cir. 2006).
III.
“The starting place in the analysis of the constitutionality
of campaign finance reform legislation is Buckley v. Valeo,
424 U.S. 1 (1976) [(per curiam)].” Eddleman, 343 F.3d at
1
The district court’s partial summary judgment determination is not
at issue in this appeal.
THOMPSON V. HEBDON 9
1090. The Court in Buckley explained that limitations on
campaign contributions implicate the contributor’s First
Amendment rights. Buckley, 424 U.S. at 20–21. But it
distinguished limits on expenditures made by candidates
from limits on contributions made to candidates. Id. The
Court reasoned that the former amounts to a direct affront to
the regulated entity’s free speech rights, while the latter
“entails only a marginal restriction upon the contributor’s
ability to engage in free communication.” Id. at 19–21.
Buckley further explained that
[a] contribution serves as a general
expression of support for the candidate and
his views, but does not communicate the
underlying basis for the support. The
quantity of communication by the contributor
does not increase perceptibly with the size of
his contribution, since the expression rests
solely on the undifferentiated, symbolic act
of contributing. . . . A limitation on the
amount of money a person may give to a
candidate or campaign organization thus
involves little direct restraint on his political
communication, for it permits the symbolic
expression of support evidenced by a
contribution but does not in any way infringe
the contributor’s freedom to discuss
candidates and issues.
Id. at 21. Put another way, unlike expenditure limitations,
“limiting contributions [leaves] communication
significantly unimpaired.” Nixon v. Shrink Mo. Gov’t PAC,
528 U.S. 377, 387 (2000). Accordingly, while expenditure
limitations must survive exacting scrutiny, limits on
contributions are “subject to [a] relatively complaisant
10 THOMPSON V. HEBDON
review under the First Amendment.” FEC v. Beaumont,
539 U.S. 146, 161 (2003); see also Shrink Mo., 528 U.S. at387–88. The question is whether the law targets an
“important state interest,” and, if so, “whether ‘the
contribution limitation is so radical in effect as to render
political association ineffective, drive the sound of the
candidate’s voice below the level of notice, and render
contributions pointless.’” Eddleman, 343 F.3d at 1091–92
(quoting Shrink Mo., 528 U.S. at 397).
The bottom line is this: After Buckley and
Shrink Missouri, state campaign contribution
limits will be upheld if (1) there is adequate
evidence that the limitation furthers a
sufficiently important state interest, and (2) if
the limits are “closely drawn”—i.e., if they
(a) focus narrowly on the state’s interest, (b)
leave the contributor free to affiliate with a
candidate, and (c) allow the candidate to
amass sufficient resources to wage an
effective campaign.
Id. at 1092. The State bears the burden of satisfying both
prongs of this inquiry. McCutcheon v. FEC, 572 U.S. 185,
210 (2014). We recently reaffirmed this test in Lair III,
873 F.3d at 1178–80.
A.
In recent years, the Supreme Court has limited the type
of state interest that justifies a First Amendment intrusion on
political contributions. After Citizens United and
McCutcheon, states must show that any such limitation
serves to combat actual quid pro quo corruption or its
appearance. McCutcheon, 572 U.S. at 206–07; Citizens
United v. FEC, 558 U.S. 310, 359–60 (2010). It no longer
THOMPSON V. HEBDON 11
suffices to show that the limitation targets “undue influence”
in politics. McCutcheon, 572 U.S. at 208 (holding that “the
possibility that an individual who spends large sums may
garner ‘influence over or access to’ elected officials or
political parties” is not a sufficient state interest for limiting
campaign contributions (quoting Citizens United, 558 U.S.
at 359)); see also Lair III, 873 F.3d at 1188 (Bea, J.,
dissenting) (“Citizens United . . . narrowed what can
constitute a valid important state interest . . . to only the
state’s interest in eliminating or reducing quid pro quo
corruption or its appearance.”).
The Court’s limitation on what constitutes an “important
state interest” does not necessarily undermine the
government’s ability to cap contributions made directly to a
candidate. See McCutcheon, 572 U.S. at 192–93 (“[W]e
have previously upheld [limits on direct contributions to a
candidate] as serving the permissible objective of
combatting corruption.”); Citizens United, 558 U.S. at 356–
57. That is because the appearance of such corruption is
“‘inherent in a regime of large individual financial
contributions’ to particular candidates.” See McCutcheon,
572 U.S. at 207. To address that risk, states may implement
prophylactic limits because individual-to-candidate
contributions could compel “elected officials [to be]
influenced to act contrary to their obligations of office by the
prospect of financial gain to themselves or infusions of
money into their campaigns.” Id. at 225 (emphasis omitted)
(quoting FEC v. Nat’l Conservative Political Action Comm.,
470 U.S. 480, 497 (1985)). Indeed, “restrictions on direct
contributions are preventative, because few if any
contributions to candidates will involve [actual] quid pro
quo arrangements.” Citizens United, 558 U.S. at 357.
12 THOMPSON V. HEBDON
In Eddleman, we held that the quantum of evidence
necessary to justify a legitimate state interest is low: the
perceived threat must be merely more than “mere
conjecture” and “not . . . ‘illusory.’” Eddleman, 343 F.3d at
1092. 2
B.
We turn to assessing the four challenged provisions of
the 2006 Initiative. For each, we consider whether it is
(1) targeted at an “important state interest,” and, if so,
(2) whether it is “closely drawn” to meet that interest.
Eddleman, 343 F.3d at 1092.
i.
We begin with the $500 individual-to-candidate
contribution limit. Thompson challenges both Alaska’s
power to impose the limit at all and its intent in halving the
prior $1,000 limit with the challenged $500 limit.
Thompson first argues that Alaska’s evidence amounts
to showing only an “undue influence” by contributors on
candidates for office. In light of Lair III, we reject this
argument. Alaska proffered substantial evidence of attempts
to secure votes for contributions. For example, Senator
Coghill testified that he was approached by a lobbyist
2
McCutcheon and Citizens United created some doubt as to the
continuing vitality of the standard for the evidentiary burden we
announced in Eddleman. See Lair v. Motl, 889 F.3d 571, 575 (9th Cir.
2018) (Ikuta, J., dissenting from denial of rehearing en banc) (“This
highly attenuated standard is two steps removed from the standard
explained by Citizens United and McCutcheon.”). However, in Lair III
we reaffirmed this evidentiary standard, 873 F.3d at 1178, and we denied
a petition for rehearing en banc, 889 F.3d at 572.
THOMPSON V. HEBDON 13
demanding his vote, saying: “This is why we gave to you.
Now we need your help.” Similarly, Anchorage Assembly
member Bob Bell testified that an executive offered to hold
a fundraiser for him if he would support a private prison
project. When he refused, the executive held a fundraiser for
his opponent instead. These examples demonstrate attempts
by individuals to affect public officials’ voting behavior
through the prospect of financial gain, thereby giving rise to
a risk of quid pro quo corruption. Finally, there is Alaska’s
VECO public corruption scandal, which came to light
shortly after the 2006 Initiative was passed. That scandal
snared roughly 10% of Alaska’s legislature in a scheme of
accepting money from VECO, an oil services firm, in return
for votes and other political favors. 3 Under Lair III, we are
compelled to conclude that the State’s evidence suffices to
show that the individual-to-candidate limit “further[s] the
important state interest of preventing quid pro quo
corruption or its appearance.” 873 F.3d at 1179–80.
Thompson next argues that Alaska fails to show that the
legislative purpose for cutting the individual contribution
limit in half was to prevent quid pro quo corruption or its
3
Thompson dismisses the VECO scandal as irrelevant because
Alaska fails to show that it was the impetus for the 2006 Initiative. As
noted, however, the legislative purpose of the initiative is beside the
point. But Thompson’s argument fails for an additional reason. He
reasons that prosecuting violators under bribery laws—as occurred with
the VECO scandal—is the only legitimate means of preventing
corruption. Not so. By allowing limits on contributions directly to
candidates as a prophylactic measure, the Supreme Court has made clear
that the state interest of preventing corruption is not limited to
prosecuting instances of past corruption. See McCutcheon, 572 U.S. at
196–98 (citing Buckley, 424 U.S. at 26–29); Shrink Mo., 528 U.S. at 389(“Congress [can] constitutionally address the power of money ‘to
influence governmental action’ in ways less ‘blatant and specific’ than
bribery.” (quoting Buckley, 424 U.S. at 28)).
14 THOMPSON V. HEBDON
appearance. According to Thompson, Alaska needed to but
failed to explain why $500 is better suited to combating
corruption than the prior $1,000 limit. Absent such a
showing, Thompson asserts, the $500 limit targets at most
the “influence” and “pressure” that contributors can have on
elected officials.
We are unpersuaded. First, the State must demonstrate
only that when the 2006 Initiative was approved by the
voters “the risk of actual or perceived quid pro quo
corruption is more than ‘mere conjecture.’” Lair III,
873 F.3d at 1178 (quoting Eddleman, 343 F.3d at 1092). We
have rejected—albeit sub silentio—such purpose-based
arguments in the past. In Yamada v. Snipes, 786 F.3d 1182,
1205–06 (9th Cir. 2015), we held that a limit on
contributions by government contractors withstood scrutiny
because it “target[ed] . . . the contributions most closely
linked to actual and perceived quid pro quo corruption.”
This was notwithstanding the fact that the ban’s proponents
in the legislature articulated other goals, including an intent
to create a “level playing field.” Yamada v. Weaver, 872 F.
Supp. 2d 1023, 1058 n.26 (D. Haw. 2012). Thompson’s
proposed rule—requiring Alaska to show that reducing the
limit from $1,000 to $500 is necessary to combat
corruption—would significantly restrict the deference the
Supreme Court has given to states to determine how
precisely to advance the important state interest of
combating corruption.
Second, Thompson’s argument about the exact amount
of the limit misses the mark because the first step of
Eddleman “is divorced from the actual amount of the
limits—it is a threshold question whether any level of
limitation is justified.” Lair III, 873 F.3d at 1178.
THOMPSON V. HEBDON 15
Concluding, as we must, that the individual-to-candidate
contribution limit targets an “important state interest,” we
turn to the second Eddleman factor: whether the limit is
“closely drawn.” Lair III, 873 F.3d at 1180; Eddleman,
343 F.3d at 1092. To pass scrutiny, Alaska must show that
the limit “focus[es] narrowly on the state’s interest,”
“leave[s] the contributor free to affiliate with a candidate,”
and “allow[s] the candidate to amass sufficient resources to
wage an effective campaign.” Eddleman, 343 F.3d at 1092.
“In making this determination, we look at all dollars likely
to be forthcoming in a campaign, rather than the isolated
contribution, and we also consider factors such as whether
the candidate can look elsewhere for money, the percentage
of contributions that are affected, the total cost of a
campaign, and how much money each candidate would
lose.” Id. at 1094 (internal citations omitted).
Narrow Focus. Whether a contribution limit has a
narrow focus requires us to “assess the ‘fit between the stated
governmental objective and the means selected to achieve
that objective,’ looking at whether the limit[] target[s] ‘the
narrow aspect of political association where the actuality and
potential for corruption have been identified.’” Lair III,
873 F.3d at 1180 (internal citations omitted) (quoting
McCutcheon, 572 U.S. at 199 and Buckley, 424 U.S. at 28).
Consistent with the intermediate scrutiny we apply to
contribution limits, the fit need not be “perfect, but
reasonable.” McCutcheon, 572 U.S. at 218 (quoting Bd. of
Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480
(1989)). Thus, while the 2006 Initiative need not employ
“the least restrictive means,” it should be “narrowly tailored
to achieve the desired objective.” Id. (quoting Fox, 492 U.S.
at 480).
16 THOMPSON V. HEBDON
Thompson argues that the individual-to-candidate limit
lacks a narrow focus because, he asserts, Alaska fails to
show that reducing the limit from $1,000 to $500 was
necessary, and because the limit is among the lowest in the
nation. We have already explained that Alaska need not
show that it was necessary to reduce the contribution limit to
$500, only that the new limit targets quid pro quo corruption
or its appearance. See Buckley, 424 U.S. at 30. On the
question of whether the $500 limit is “narrowly focused” on
that interest, we must uphold the dollar amount unless it is
“so radical in effect as to render political association
ineffective, drive the sound of a candidate’s voice below the
level of notice, and render contributions pointless.” Shrink
Mo., 528 U.S. at 397.
Although the $500 limit is low compared to the laws of
most other states, whether it is unreasonably low requires a
deeper dive. The $500 limit affects only the top 12.6% of
contributions that all candidates received in elections
occurring after the initiative passed in 2006. This is on par
with the Montana law’s limit, which we upheld in Eddleman
and Lair III. That limit targeted the top 10% of
contributions—i.e., “the high-end contributions most likely
to result in actual or perceived corruption.” Lair III,
873 F.3d at 1181; Eddleman, 343 F.3d at 1094. 4 Moreover,
although the $500 limit is on the low-end of the range of
limits adopted by various states, it is not an outlier. At least
4
Thompson relies on a different metric: the percentage of campaign
dollars that came from contributors giving the $500 maximum, which he
asserts amounted to nearly 40%. Regardless of the accuracy of
Thompson’s statistic, it is not well-suited to determining “the percentage
of contributions that are affected.” Eddleman, 343 F.3d at 1094. It
merely reflects that large contributions will command a relatively outsize
share of a candidate’s campaign war chest.
THOMPSON V. HEBDON 17
four other states (Colorado, Kansas, Maine, and Montana)
have the same or lower limit for state house candidates, as
do at least five comparably sized cities (Austin, Portland,
San Francisco, Santa Cruz, and Seattle). We recently upheld
a comparable limit. Lair III, 873 F.3d at 1174 tbls.2 & 3.
Contributors’ Ability to Affiliate With Candidates.
Thompson does not argue that the $500 individual-to-
candidate limit prevents supporters from affiliating with
candidates. His tacit acknowledgment that Alaska has met
its burden on this factor is well taken. As with Montana’s
limit upheld in Eddleman and Lair III, Alaska “not only
permits such affiliation through direct monetary
contributions, but also ‘in ways other than direct
contributions, such as donating money to a candidate’s
political party, volunteering . . . , sending direct mail . . . , or
taking out independent newspaper, radio, or television ads to
convey . . . support.’” Lair III, 873 F.3d at 1184 (alterations
in original) (quoting Eddleman, 343 F.3d at 1094).
Accordingly, we conclude that the $500 limit does not
hobble contributors’ ability to affiliate with candidates.
Candidates’ Ability to Campaign Effectively.
Thompson argues the $500 individual-to-candidate limit is
impermissibly low because, he asserts, it favors incumbents
at the expense of challengers, causes campaigns in
competitive races to run deficits, and is not indexed for
inflation. Each of these contentions misses its mark,
however, because none directly addresses the dispositive
question: whether the individual-to-candidate limit
“impede[s] a candidate’s ability to ‘amass the resources
necessary for effective advocacy.’” Eddleman, 343 F.3d at
1091 (quoting Shrink Mo., 528 U.S. at 397). A limit does so
if it is “so radical in effect as to render political association
ineffective, drive the sound of a candidate’s voice below the
18 THOMPSON V. HEBDON
level of notice, and render contributions pointless.” Shrink
Mo., 528 U.S. at 397. 5
The district court weighed expert testimony from both
sides in concluding that the $500 limits allow candidates to
“amass” the necessary funds. 6 Thompson, 217 F. Supp. 3d
at 1035. Thompson submitted the testimony of Michael
Gene Pauley, a campaign manager and consultant, who
stated his belief that the $500 limits are too low because they
are not indexed for inflation and because the limits are
annual in nature. Id. at 1034–35. Thompson also offered the
testimony of Senator John Coghill, who stated that “he has
always been able to raise sufficient funds to run an effective
campaign, but that it was ‘just harder’ under the current $500
limits than under the $1,000 limits because ‘the lower limits
do cause you to have to go broad.’” Id. at 1035.
Thompson also called Clark Bensen, a consultant and
former director of political analysis for the Republican
National Committee, who testified that, under the $500
limits, candidates often spend more than they raise. Id. The
district court did not credit Bensen’s testimony, however,
because he acknowledged that his analysis was based on
5
Thompson relies heavily on Randall v. Sorrell, 548 U.S. 230(2006). It appears that Justice Breyer’s plurality opinion in Randall, if
binding, may aid Thompson’s position because at least one of the
“warning signs” identified in Randall is present here. However, as we
recognized in Lair v. Bullock, 697 F.3d 1200, 1204 (9th Cir. 2012) (Lair
I), and reiterated in Lair v. Bullock, 798 F.3d 736, 747 (9th Cir. 2015)
(Lair II), Randall is not binding authority because no opinion
commanded a majority of the Court.
6
The testimony and the district court’s decision addressed together
the relevant inquiry of both the $500 individual-to-candidate limit and
the $500 individual-to-group limit. The individual-to-group limit is
discussed in more detail in Part III.B.ii of our opinion.
THOMPSON V. HEBDON 19
exaggerated estimates. Id. Moreover, Bensen’s
determination that campaigns run deficits under current law
is also unpersuasive because it is analytically unsound. By
simply comparing total contributions to total expenditures,
Bensen did not control for certain expenditures that have
little or nothing to do with running an effective campaign—
e.g., charitable contributions, loan repayments, and payment
transfers to future campaign accounts. Campaigns often
must make such non-campaign-related expenditures because
they are required to run a zero balance at the end of the
campaign. Considering the analytical flaws in Bensen’s
analysis and his own admission that “I didn’t do a very
sophisticated analysis . . . . It’s not like I didn’t do it, but I
didn’t do it well, shall we say, or completely,” id., we hold
that the district court’s credibility determination was not
clearly erroneous. See Prete, 438 F.3d at 960. Accordingly,
we, like the district court, discount Bensen’s testimony.
Defendants relied on the expert testimony of Thomas
Begich and John-Henry Heckendorn, both of whom are
political consultants. Thompson, 217 F. Supp. 3d at 1035.
Both testified that candidates—challengers and incumbents
alike—can run effective campaigns under the $500 limits
and “have done so.” Id. They explained that the candidate
who raises the most money does not necessarily win the
election, that it is not—contrary to Thompson’s experts’
testimony—getting more expensive to run campaigns, and
that the limits do not favor incumbents over challengers, also
contrary to Thompson’s claim. Id. at 1035–36. For
example, they testified that while the cost of some campaign
elements have gone up, others have gotten cheaper, such as
advertising and outreach to voters through new technologies.
Id.
20 THOMPSON V. HEBDON
Additional record evidence supports Defendants’
position. For example, in the 2012 and 2014 election cycles,
several successful non-incumbent candidates raised in
excess of $100,000 from individual contributions alone.
While different races will require varying levels of
fundraising, witness testimony established that amassing
$100,000 allows a candidate to mount an effective
campaign. For example, TV spending by a state legislative
candidate generally would not exceed $40,000; radio
advertising could cost $20,000; consultant services could
cost another $20,000; a mailer might cost up to $3,000; and
signs could cost up to $10,000. Thus, even if a candidate
spent the maximum estimated expenditure in each of these
categories, she would still spend less than $100,000. And
that sum does not include the candidate’s total campaign war
chest. Candidates also receive contributions from political
action committees (“PACs”) and political parties.
Viewing the evidence as a whole, we agree with the
district court that the $500 individual-to-candidate limit
allows candidates to amass sufficient funds to run an
effective campaign. 7 And because Defendants also show
7
It is unclear whether a district court’s determination that a
contribution limit allows candidates to amass sufficient funds to run an
effective campaign is owed any deference. Arguably, such a finding is
a “constitutional question of fact,” which we review de novo. Prete,
438 F.3d at 960. In reversing the district court in Lair III, we implicitly
applied de novo review. Lair III, 873 F.3d at 1184–86 (holding that
“Montana’s limits do not prevent candidates from amassing sufficient
resources to campaign effectively” without giving any deference to the
district court and without identifying any clear error); see id. at 1178 (“In
the First Amendment context . . . ‘our review [of the district court’s fact
finding] is more rigorous than other cases.’” (second alteration in
original) (quoting Lair II, 798 F.3d at 748 n.8)). In other First
Amendment contexts, we have suggested some level of deference is
THOMPSON V. HEBDON 21
that the limit is narrowly focused on Alaska’s interest in
combating quid pro quo corruption or its appearance and
does not impede an individual’s ability to associate with a
candidate, we affirm the district court’s determination that
the $500 individual-to-candidate limit is “closely drawn.”
Eddleman, 343 F.3d at 1092.
ii.
At first glance, the individual-to-group contribution limit
of $500 appears to present a closer question because that
limit reflects a more attenuated risk of quid pro quo
corruption or its appearance than does the individual-to-
candidate limit. In McCutcheon, the Supreme Court rejected
a limitation that capped aggregate contributions to PACs.
572 U.S. at 210–18. Because money was not transacted
directly between contributor and candidate, “there [wa]s not
the same risk of quid pro quo corruption or its appearance.”
Id. at 210. While the government articulated an important
interest in preventing circumvention of the base limits, the
Court held that the “Government ha[d] not carried its burden
of demonstrating that the aggregate limits further[ed] its
anticircumvention interest.” Id. at 211. The Court did not,
however, call into doubt anticircumvention as an important
state interest; the government simply failed to meet its
evidentiary burden.
McCutcheon’s tacit embrace of anticircumvention as an
important state interest in combating quid pro quo corruption
appropriate. See, e.g., Newton v. Nat’l Broad. Co., 930 F.2d 662, 670
(9th Cir. 1990) (“[W]e must simultaneously ensure the appropriate
appellate protection of First Amendment values and still defer to the
findings of the trier of fact.”). We need not resolve this question because
we agree with the district court’s conclusion based on our own
independent view of the evidence.
22 THOMPSON V. HEBDON
or its appearance means that another Supreme Court case,
California Medical Ass’n, 453 U.S. 182, remains good law.
In that case, applying intermediate scrutiny to limits on
individual contributions to PACs, the Court upheld the limits
as “further[ing] the governmental interest in preventing the
actual or apparent corruption of the political process”
because they prevent contributors from “evad[ing] the . . .
limit on contributions to candidates . . . by channeling funds
through a multicandidate political committee.” Cal. Med.
Ass’n, 453 U.S. at 197–98; see also FEC v. Colo. Republican
Fed. Campaign Comm’n, 533 U.S. 431, 456 (2001) (“[A]ll
Members of the Court agree that circumvention is a valid
theory of corruption . . . .”); Thalheimer v. City of San Diego,
645 F.3d 1109, 1125 (9th Cir. 2011) (“[T]here is nothing in
the explicit holdings or broad reasoning of Citizens United
that invalidates the anti-circumvention interest in the context
of limitations on direct candidate contributions.”). We
conclude that Alaska has demonstrated the same interest
here where the risk of circumvention of the individual-to-
candidate limit is apparent: under Alaska law, any two
individuals could form a “group,” which could then funnel
money to a candidate. Alaska Stat. § 15.13.400(8)(B). Such
groups could easily become pass-through entities for, say, a
couple that wants to contribute more than the $500
individual-to-candidate limit.
If, as we hold, the individual-to-candidate limit is
constitutional, then under California Medical Ass’n so too is
Alaska’s law that prevents evasion of that limit.
iii.
Alaska law limits the amount a political party may
contribute to a municipal candidate to $5,000. Alaska Stat.
§§ 15.13.070(d), 15.13.400(15). Thompson does not
challenge the dollar amount; he instead argues that the law’s
THOMPSON V. HEBDON 23
aggregation of political party sub-units is unconstitutional.
He reasons that limiting party sub-units to the $5,000 limit
but not limiting multiple labor-union PACs to the same limit
is discriminatory.
Thompson’s discriminatory treatment argument fails
because independent labor union PACs are not analogous to
political party sub-units. Party sub-units, by definition, are
subsidiaries of a parent entity—the umbrella political party.
As such, they share the objectives and rules of the party. In
the past, we have observed without remark that at least one
other state similarly aggregates party sub-units for purposes
of campaign contribution limits. See, e.g., Lair II, 798 F.3d
at 740 (“Montana treats all committees that are affiliated
with a political party as one entity.”). Different labor unions,
by contrast, are entirely different entities. Moreover,
political parties may donate more than labor union PACs
($5,000 versus $1,000), which undercuts the basis for a
direct comparison between the two disparate sets of
organizations. Alaska Stat. § 15.13.070(c), (d). We
therefore reject Thompson’s inchoate disparate treatment
argument and uphold the political party-to-candidate limit. 8
iv.
Finally, we address Thompson’s challenge to Alaska’s
nonresident aggregate limit, which bars a candidate from
accepting more than $3,000 per year from individuals who
are not residents of Alaska. Alaska Stat. § 15.13.072(a)(2),
(e). This particular provision prevented Thompson from
making a desired $100 contribution to a candidate for the
8
Our holding should not be construed as foreclosing a constitutional
challenge to the dollar amount of Alaska’s (or some other state’s) limit
on political party-to-candidate contributions.
24 THOMPSON V. HEBDON
Alaska House of Representatives—his brother-in-law—
because his brother-in-law had already received $3,000 in
out-of-state contributions.
The district court held that the nonresident aggregate
limit serves an anti-corruption purpose. The court cited
Alaska’s unique vulnerability to “exploitation by outside
industry and interests,” and referenced trial testimony that
those entities “can and do exert pressure on their employees
to make contributions to state and municipal candidates.”
Thompson, 217 F. Supp. 3d at 1039. The court determined
that the nonresident limit therefore
furthers Alaska’s sufficiently important
interest in preventing quid pro quo corruption
or its appearance in two ways. First, [it]
furthers the State’s anticorruption interest
directly by avoiding large amounts of out-of-
state money from being contributed to a
single candidate, thus reducing the
appearance that the candidate feels obligated
to outside interests over those of his
constituents. Second, the nonresident
aggregate limit discourages circumvention of
the $500 base limit and other game-playing
by outside interests, particularly given [the
Alaska Public Offices Commission’s] limited
ability and jurisdiction to investigate and
prosecute out-of-state violations of Alaska’s
campaign finance laws.
Id.
Taking the district court’s evidentiary findings as true,
on de novo review we cannot agree that the nonresident limit
targets quid pro quo corruption or its appearance. At most,
THOMPSON V. HEBDON 25
the law aims to curb perceived “undue influence” of out-of-
state contributors—an interest that is no longer sound after
Citizens United and McCutcheon. McCutcheon, 572 U.S. at
206–08. Indeed, Alaska’s argument that the nonresident
limit “reduces the appearance that a candidate will be
obligated to outside interests rather than constituents” says
nothing about corruption. 9 It is not enough to show that out-
of-state firms—and particularly those wishing to exploit
Alaska’s natural resources—“can and do exert pressure on
their employees to make contributions to state and municipal
candidates.” Thompson, 217 F. Supp. 3d at 1039.
Moreover, even if we agreed with Alaska that limiting
the inflow of contributions from out-of-state extractive
industries served an anti-corruption interest, the nonresident
aggregate limit is a poor fit. Out-of-state interests can still
maximize their influence across a large number of
candidates—they just need to be early players so that they
can contribute the maximum $500 donation before each of
those candidates reaches the $3,000 limit.
McCutcheon is instructive on this point. There, the
Court invalidated aggregate contribution limits that allowed
an individual to contribute the maximum to multiple
candidates but not to any additional candidates once the
contributor hit the aggregate limit. 572 U.S. at 210–18. The
Court held that the law was a poor fit for combating quid pro
quo corruption or its appearance because contributions to a
candidate before a contributor has reached the aggregate
9
In Landell v. Sorrell, the Second Circuit opined that the Alaska
Supreme Court’s upholding of the nonresident limit “is a sharp departure
from the corruption analysis adopted by the Supreme Court in Buckley
and Shrink.” 382 F.3d 91, 148 (2d Cir. 2004), rev’d on other grounds
sub nom. Randall, 548 U.S. 230.
26 THOMPSON V. HEBDON
limit are not somehow less corrupting than contributions to
another candidate after the aggregate limit is reached. See
id.Alaska’s showing as to its nonresident limit is analogous.
Alaska fails to show why an out-of-state individual’s early
contribution is not corrupting, whereas a later individual’s
contribution—i.e., a contribution made after the candidate
has already amassed $3,000 in out-of-state funds—is
corrupting. Nor does Alaska show that an out-of-state
contribution of $500 is inherently more corrupting than a
like in-state contribution—only the former of which is
curbed under Alaska’s nonresident limit. Alaska fails to
demonstrate that the risk of quid pro quo corruption turns on
a particular donor’s geography. Accordingly, while we do
not foreclose the possibility that a state could limit out-of-
state contributions in furtherance of an anti-corruption
interest, Alaska’s aggregate limit on what a candidate may
receive is a poor fit.
As an alternative defense of the law, Alaska argues that
the nonresident limit targets the important state interest of
protecting its system of self-governance. We reject Alaska’s
proffered state interest for three reasons.
First, what Alaska calls “self-governance” is really a re-
branding of the interest of combating influence and access
that the Supreme Court has squarely rejected. To understand
Alaska’s proffered state interest, it is important to be clear
on what the State does not mean by “self-governance.” In
the distinct context of a law restricting “who may exercise
official, legislative powers,” we recognized “self-
governance” as a legitimate state interest. Chula Vista
Citizens for Jobs & Fair Competition v. Norris, 782 F.3d
520, 531 (9th Cir. 2015) (en banc). In Norris, we used the
THOMPSON V. HEBDON 27
term “self-governance” to mean a state’s interest in
controlling who governs.
Alaska’s (and the dissent’s) proffered state interest is
materially different from what we called self-governance in
Norris. Alaska’s version of “self-governance” is concerned
with limiting not who governs (as in Norris) but who is
allowed to contribute to the campaigns of those who would
govern. Indeed, the dissent correctly characterizes Alaska’s
proffered interest as seeking “to ensure that its legislators are
responsive to the individuals that they represent, not to out-
of-state interests.” Dissent at 37. The premise of Alaska’s
concern with “outside control” is that Alaska state officials
will feel pressure to kowtow to out-of-state entities because
of nonresident contributions.
The dissent makes a cogent case for the view that states
should be able to limit who may “directly influence the
outcome of an election” by making financial contributions.
See Dissent at 37. But that debate is over. The Supreme
Court has expressly considered and rejected those
arguments. See McCutcheon, 572 U.S. at 206–08 (holding
that states do not have a legitimate interest in curbing
“‘influence over or access to’ elected officials” by
individuals “spend[ing] large sums” (quoting Citizens
United, 558 U.S. at 359)). In short, Alaska’s proffered
interest in “self-governance” is indistinguishable from the
disavowed state interest in combating “influence over or
access to” public officials. 10
10
The Supreme Court has given no indication that the First
Amendment interest in protecting political access waxes or wanes
depending on the representative relationship between contributor and
28 THOMPSON V. HEBDON
Second, even if Alaska’s “self-governance” interest
could be construed as distinct from the interest in combating
influence and access, the Supreme Court’s recent campaign
finance decisions leave no room for us to accept the State’s
proffered interest. The Supreme Court’s opinions articulate
“only one” narrowly defined legitimate state interest in
capping campaign contributions: “preventing quid pro quo
corruption or its appearance.” McCutcheon, 572 U.S. at
206–07. In McCutcheon, its banner campaign contribution
case, the Court explains that it has “consistently rejected
attempts to suppress campaign speech based on other
legislative objectives.” Id. at 207. McCutcheon resolved
that “[a]ny regulation must instead target what we have
called ‘quid pro quo’ corruption or its appearance.” Id. at
192 (emphasis added) (citing Citizens United, 558 U.S. at
359). Indeed, “[c]ampaign finance restrictions that pursue
other objectives . . . impermissibly inject the Government
‘into the debate over who should govern.’” Id. (quoting Ariz.
Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S.
721, 750 (2011)); see also VanNatta v. Keisling, 151 F.3d
candidate. See Buckley, 424 U.S. at 48–49. In fact, Buckley’s language
arguably compels the opposite conclusion:
[T]he concept that government may restrict the speech
of some elements of our society in order to enhance
the relative voice of others is wholly foreign to the
First Amendment, which was designed to secure the
widest possible dissemination of information from
diverse and antagonistic sources, and to assure
unfettered interchange of ideas for the bringing about
of political and social changes desired by the people.
Id. (internal quotation marks omitted). Far from serving the goal of
“secur[ing] the widest possible dissemination of information from
diverse and antagonistic sources,” the nonresident limit artificially
suppresses the free exchange of political ideas.
THOMPSON V. HEBDON 29
1215, 1217 (9th Cir. 1998) (noting “the lack of support for
any claim based on the right to a republican form of
government”). That unqualified directive leaves no room for
Alaska’s averred self-governance interest. Campaign
contribution limits rise or fall on whether they target quid
pro quo corruption or its appearance.
The dissent suggests we are free to accept “self-
governance” as an important state interest in justifying limits
on campaign contributions because the Supreme Court has
not expressly considered and rejected that specific interest.
Although a prior three-judge opinion of our court does not
bind a later panel on an issue that was not before the prior
panel, when it comes to Supreme Court precedent, our court
is bound by more than just the express holding of a case. Our
decisions must comport with the “reasoning or theory,” not
just the holding, of Supreme Court decisions (even in the
face of prior contrary Ninth Circuit precedent). Miller v.
Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc)
(adopting the view that lower courts are “bound not only by
the holdings of higher courts’ decisions but also by their
‘mode of analysis’” (quoting Antonin Scalia, The Rule of
Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1177
(1989))); see id. at 900 (“[T]he issues decided by the higher
court need not be identical in order to be controlling.”). The
dissent’s conclusion that self-governance is an important
state interest in this context is “clearly irreconcilable” with
the Supreme Court’s reasoning in McCutcheon. See id.
Third, even if McCutcheon did not shutter the possibility
of alternative state interests, self-governance is not an
important state interest in light of countervailing First
Amendment concerns. Indeed, Alaska fails to prove that
nonresident participation in a state’s election infringes state
sovereignty. Instead, it alleges in conclusory fashion that the
30 THOMPSON V. HEBDON
“nonresident limit also furthers the important state interest
in protecting Alaska’s system of self-government from
outside control.”
Accordingly, we hold that Alaska’s aggregate
nonresident contribution limit violates the First Amendment,
and we reverse the district court’s judgment on this issue. 11
CONCLUSION
States have an important interest in preserving the
integrity of their political institutions. A vital method of
doing so is by curbing large monetary contributions, which
can corrode the public’s faith in its government’s
responsiveness to the popular will. Thus, while campaign
contributions implicate a contributor’s First Amendment
right to express a particular political viewpoint, the State has
an important interest in combating quid pro quo corruption
or its appearance.
11
The dissent relies on Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C.
2011), but that case is inapplicable. The plaintiffs in Bluman were
foreign citizens who sought the right to participate in the United States
campaign process by, among other things, making financial
contributions to candidates. Id. at 282–83. They argued they should be
treated the same as American citizens (such as minors and American
corporations) who, though unable to vote, are permitted to make
campaign contributions. Id. at 290. The court rejected that argument
and based its holding on the conclusion that the plaintiffs, in contrast to
American citizens who are unable to vote, were, by definition, outside
“the American political community.” Id. Thus, contrary to the dissent’s
statement that Bluman cannot “be distinguished on the grounds that it
involved a distinction between United States citizens and foreign
nationals,” Dissent at 39, that distinction was the very basis for the
Bluman court’s holding.
THOMPSON V. HEBDON 31
Under existing precedent, the district court correctly held
that three of the four challenged provisions of Alaska’s 2006
campaign finance law are closely drawn to serve this
interest. But the court erred in upholding the nonresident
aggregate contribution limit because it, at most, targets
contributors’ influence over Alaska politics. Since Citizens
United and McCutcheon, preventing “undue influence” is no
longer a legitimate basis for restricting contributions under
the First Amendment. Accordingly, we reverse the district
court on that provision and remand for entry of judgment
consistent with this opinion.
AFFIRMED in part, REVERSED in part, and
REMANDED.
The parties shall bear their own costs.
THOMAS, Chief Judge, concurring in part and dissenting in
part:
I agree with the majority that Alaska’s limitations on
individual contributions to candidates and election-related
groups and on political party contributions to individual
candidates do not violate the First Amendment. However, I
would hold that the nonresident aggregate contribution limit,
which furthers Alaska’s important state interests in
preventing quid pro quo corruption or its appearance and in
preserving self-governance, also does not violate the First
Amendment. Thus, I respectfully dissent from Section
III(B)(iv) of the majority opinion. I would affirm the district
court’s well-reasoned decision in its entirety.
32 THOMPSON V. HEBDON
I
To survive First Amendment scrutiny in this case,
Alaska must establish that the limits are justified by the risk
of quid pro quo corruption or its appearance. And its burden
is light. 1 Alaska need only show that “the risk of actual or
perceived quid pro quo corruption” by out-of-state actors is
neither “illusory” nor “mere conjecture.” Lair v. Motl,
873 F.3d 1170, 1188 (9th Cir. 2017) (“Lair III”) (quoting
Eddleman, 343 F.3d at 1092). After a seven-day bench trial,
the district court concluded that Alaska had satisfied its
burden. Its factual findings were not clearly erroneous, see
Prete v. Bradbury, 438 F.3d 949, 960 (9th Cir. 2006)
(describing standard), and its conclusions were amply
supported by the record. Alaska demonstrated that
nonresident contributions present a particular risk of quid
pro quo corruption or its appearance. 2
1
Because Thompson raised no challenge to the amount of the
aggregate limit, the only question is whether “there is adequate evidence
that the limitation furthers” Alaska’s anti-corruption interest. Lair v.
Bullock, 798 F.3d 736, 742 (9th Cir. 2015) (“Lair II”) (quoting Mont.
Right to Life Ass’n v. Eddleman, 343 F.3d 1085, 1092 (9th Cir. 2003)).
2
The Supreme Court has specifically rejected Thompson’s
argument that a ban is treated differently than a limit when it comes to
connecting the regulation to the state’s important interest. Fed. Elections
Comm’n v. Beaumont, 539 U.S. 146, 162 (2003) (“It is not that the
difference between a ban and a limit is to be ignored; it is just that the
time to consider it is when applying scrutiny at the level selected[.]”).
And there is no question that Alaska may limit campaign contributions
to prevent quid pro quo corruption or its appearance. Nixon v. Shrink
Mo. Gov’t PAC, 528 U.S. 377, 390 (9th Cir. 2000). Thus, the issue here
is essentially whether the state may draw a line between residents and
non-residents.
THOMPSON V. HEBDON 33
Alaska is uniquely vulnerable to exploitation by out-of-
state actors. The district court found that this is so, in part,
because of “Alaska’s almost complete reliance on one
industry for a majority of its revenues.” Thompson v.
Dauphinais, 217 F. Supp. 3d 1023, 1029 (D. Alaska 2016).
Indeed, while 85 to 92% of Alaska’s budget derives from the
oil and gas industry, that industry is not responsible for more
than 50% of any other state’s budget. Id. As one pro-oil and
gas organization proclaims on its website, “Alaska is the
only state in the Union that is so dependent on one industry
to fund its government services.” ALASKA OIL & GAS
ASS’N, State Revenue, https://www.aoga.org/facts-and-
figures/state-revenue (last visited Nov. 9, 2018). Today, not
only does the State depend on the industry to fund its
services, but boom-and-bust cycles have a more immediate
impact on Alaskans’ daily lives, too: “the petroleum industry
supports one-third of all Alaska jobs.” ALASKA OIL & GAS
ASS’N, Facts and Figures, https://www.aoga.org/facts-and-
figures (last visited Nov. 9, 2018).
The economic benefits of natural resource extraction do
not come without a cost. The interests of out-of-state oil
companies are often at odds with the interests of some
Alaska residents. Today, “[a]bout 17 percent of Alaskans—
or 120,000 people—live in rural areas, where 95 percent of
households use fish and 86 percent use game for subsistence
purposes[.]” Azmat Khan, Living off the Land in Rural
Alaska, PBS, https://www.pbs.org/wgbh/frontline/article/
living-off-the-land-in-rural-alaska (last visited Nov. 9,
2018). Resource extraction has the potential to cause
irremediable damage to Alaskan lands and culture: “any
change that depletes wild resources, reduces access to wild
areas and resources, or increases competition between user
groups can create problems for subsistence[,]” which is
“among the most highly valued parts of [Alaska] culture”
34 THOMPSON V. HEBDON
and “essential . . . to rural economies.” Alaska Dep’t of Fish
& Game, Subsistence in Alaska: FAQs,
http://www.adfg.alaska.gov/index.cfm?adfg=subsistence.fa
qs#QA14 (last visited Nov 9, 2018).
Given the oil and gas industry’s outsized impact on
Alaska’s economy, it is not difficult to see why, as the
district court found, Alaska is dependent upon and therefore
particularly vulnerable to corruption by out-of-state
corporations, whose interests are likely to be indifferent to
those of Alaska’s residents. Alaska is vulnerable for another
reason, too—with “the second smallest legislature in the
United States and the smallest senate,” it takes only “ten
votes [to] stop a legislative action such as an oil or gas tax
increase from becoming law.” Dauphinais, 217 F. Supp. 3d
at 1029. “Consequently, the incentive to buy a vote, and the
chances of successfully doing so, are therefore higher in
Alaska than in states with larger legislative bodies.” Id. The
district court was persuaded by trial testimony that “the
unique combination of Alaska’s small population,
geographic isolation, and great natural resources make it
extremely dependent on outside industry and interests.” Id.
at 1039. Alaska cannot afford to extract its natural resources
without out-of-state corporations. Id. And because out-of-
state corporations cannot extract without the cooperation of
government, these corporations do all they can to influence
state politics. Id.
As the Supreme Court has recognized, “the dangers of
large, corrupt contributions and the suspicion that large
contributions are corrupt are neither novel nor implausible.”
Shrink Mo., 528 U.S. at 391 (citing Buckley v. Valeo,
424 U.S. 1, 27 (1976)). Thus, it is enough to demonstrate
that out-of-state contributors are particularly interested in
THOMPSON V. HEBDON 35
corrupting the political process in Alaska, as the State has
easily done.
But the proof at trial was more than theoretical. The
district court found that “natural resource extraction firms
can and do exert pressure on their employees” to contribute
to political campaigns in Alaska. Dauphinais, 217 F. Supp.
3d at 1039. In other words, these out-of-state interests have
found a way to circumvent the generally applicable
contribution limits.
And, as the trial evidence demonstrated, Alaska’s history
of corruption is, in fact, storied. As the majority has aptly
noted, in the mid-2000s, a highly publicized scandal
implicated ten percent of Alaska’s legislators for improperly
taking money from VECO, a corporation that provided
support services to out-of-state oil and gas corporations. Id.
at 1030.
Unsurprisingly, the VECO scandal did not go unnoticed
by the public. News outlets played an FBI surveillance
video showing one member of the legislature,
Representative Vic Kohring, accepting cash from VECO in
exchange for his vote on pending oil tax legislation.
Representative Kohring went on to pen a newspaper column
claiming that the only thing separating him from other
Alaska lawmakers was that he got caught. Id. at 1030. As
the district court determined, the publicity surrounding the
VECO scandal supports Alaska’s interest in limiting the
appearance of quid pro quo corruption by out-of-state
interests in order to preserve Alaskans’ belief in the integrity
of their political system. Id. at 1031.
In sum, I would hold that Alaska’s important anti-
corruption interest justifies a limit on nonresident speech.
Nonresident contributions present a special risk of quid pro
36 THOMPSON V. HEBDON
quo corruption that is neither “illusory” nor “mere
conjecture.” Lair III, 873 F.3d at 1188 (quoting Eddleman,
343 F.3d at 1092). Particularly in the aftermath of the VECO
scandal, the nonresident aggregate contribution furthers
Alaska’s interest in preventing the appearance of corruption,
thereby increasing “[c]onfidence in the integrity of
[Alaska’s] electoral processes,” a value “essential to the
functioning of our participatory democracy.” Purcell v.
Gonzalez, 549 U.S. 1, 7 (2006) (per curiam). The district
court was entirely correct, and the record supports its
conclusion.
II
The nonresident aggregate cap is also justified by a
second important state interest: self-governance. I would
hold that self-governance is a sufficiently important interest
to justify the nonresident aggregate cap.
A
“[T]he right to govern is reserved to citizens.” Foley v.
Connelie, 435 U.S. 291, 297 (1978). There is no question
that Alaska may bar nonresidents from voting, no matter
how tangible their interest in a state election, Holt Civic Club
v. City of Tuscaloosa, 439 U.S. 60, 68–69 (1978), even
though “[n]o right is more precious” than the right to vote,
Wesberry v. Sanders, 376 U.S. 1, 17 (1964). Because of the
need for responsiveness to local interests, states may also
closely guard from nonresident interference those “functions
that go to the heart of representative government,” such as
“state elective or important nonelective executive,
legislative, and judicial positions[.]” Sugarman v. Dougall,
413 U.S. 634, 647 (1973).
THOMPSON V. HEBDON 37
States should be able to prevent out-of-state interests
from advancing candidates for whom the contributor cannot
even vote. Campaign contributions are made primarily to
directly influence the outcome of an election rather than to
broadcast one’s one political opinion. Beaumont, 539 U.S.
at 161 (“[C]ontributions lie closer to the edges than to the
core of political expression.”). Thus, they are “subject to
relatively complaisant review.” Id.The nonresident aggregate limit furthers Alaska’s
important state interest in protecting state sovereignty in
governance. It is “the choice, and right, of the people to be
governed by their citizen peers.” Foley, 435 U.S. at 296.
When out-of-state interests fund political campaigns, they
place an obstacle between the people and their
representatives. Alaska must be able to take measures to
ensure that its legislators are responsive to the individuals
that they represent, not to out-of-state interests.
Alaska’s interest in protecting self-government is
“important,” as required under Eddleman’s first prong. Lair
II, 798 F.3d at 742 (quoting Eddleman, 343 F.3d at 1092).
Indeed, on en banc review, we held that a state’s interest in
“securing the people’s right to self-government” was
“compelling” in the face of a First Amendment challenge to
a law requiring municipal initiative proponents to be
bonafide electors. Chula Vista Citizens for Jobs & Fair
Competition v. Norris, 782 F.3d 520, 531 (9th Cir. 2015) (en
banc). The Supreme Court reached a similar conclusion
regarding residence requirements under an Equal Protection
analysis. Dunn v. Blumstein, 405 U.S. 330, 343–44 (1972)
(recognizing as “substantial” the government’s interest in
“preserv[ing] the basic conception of a political
community”).
38 THOMPSON V. HEBDON
B
Bluman v. Federal Election Commission, 800 F. Supp.
2d 281 (D.D.C. 2011), summarily aff’d, 132 S. Ct. 1087(2012) (mem.), decided by a three-judge panel of the D.C.
District Court, is analogous. There, the court considered a
federal law preventing foreign nationals from making not
only contributions but also independent expenditures to
influence federal elections. Id. at 283. Because spending
money to influence an election is not only “speech” but also
“participation in democratic self-government,” foreign
nationals may be subject to restrictions targeted at protecting
sovereignty. Id. at 289.
In Bluman, the court recognized that “[p]olitical
contributions and express-advocacy expenditures are an
integral aspect of the process by which Americans elect
officials to federal, state, and local government offices.” Id.
at 288. “[I]t is undisputed that the government may bar
foreign citizens from voting and serving as elected officers”;
“[i]t follows that the government may bar foreign citizens
. . . from participating in the campaign process that seeks to
influence how voters will cast their ballots in the elections.”
Id.
Alaska presents an even stronger case than did the
federal government in Bluman. There, the challenged law
restricted individual expenditures as well as campaign
contributions, and the court therefore applied strict scrutiny.
Id. at 285 (citing McConnell v. FEC, 540 U.S. 93, 134–37
(2003) and Buckley, 424 U.S. at 20–23). Here, on the other
hand, we need not identify a compelling government interest
but only a “sufficiently important” one. Lair II, 798 F.3d at
742 (quoting Eddleman, 343 F.3d at 1092).
THOMPSON V. HEBDON 39
Nor can Bluman be distinguished on the grounds that it
involved a distinction between United States citizens and
foreign nationals. “It has long been recognized that resident
aliens enjoy the protections of the First Amendment.” Price
v. I.N.S., 962 F.2d 836, 841 (9th Cir. 1991) (internal citations
omitted). The line drawn in Bluman separates citizens with
the right to participate in government from foreign nationals
subject to federal law but with no corollary right of
participation. Alaska draws its line even more carefully by
applying the aggregate contribution limit only to
nonresidents. 3
C
I respectfully disagree that the Supreme Court has
foreclosed this issue because it rejected other purported
interests. Op. at 29–30. Foundational to the judicial role is
a recognition that “[w]ithout jurisdiction the court cannot
proceed at all in any cause.” Steel Co. v. Citizens for Better
Env’t, 523 U.S. 83, 94 (1998) (quoting Ex parte McCardle,
74 U.S. 506, 514 (7 Wall.) (1868)). Jurisdiction extends
only to “Cases” and “Controversies.” U.S. Const. art. III,
§ 2. It emphatically does not extend to issues that are not
before a court. No court can reject a self-governance theory
3
This, too, is why VanNatta v. Keisling, 151 F.3d 1215 (9th Cir.
1998), is immediately distinguishable, even if it remains good law and
speaks to this precise issue, both of which propositions are questionable.
VanNatta is distinguishable because it limited out-of-district
contributions to candidates for state office. Id. at 1217. Further, as we
noted in Eddleman, reliance on the Court’s approach in VanNatta “fails
to recognize the impact of the Supreme Court’s . . . decision in Shrink
Missouri.” 343 F.3d at 1091 n.2. And the majority opinion in VanNatta
is framed as a rejection of the state’s evidence and legal argument rather
than as setting forth a hard-and-fast rule regarding the constitutionality
of all limits on out-of-district contributions. 151 F.3d at 1217–18.
40 THOMPSON V. HEBDON
unless it is asked to do so. The Supreme Court has yet to
take up this question; in resolving this controversy, it is not
our role to apply a holding that does not exist.
D
“The Constitution limited but did not abolish the
sovereign powers of the States, which retained ‘a residuary
and inviolable sovereignty.’” Murphy v. Nat’l Collegiate
Athletic Ass’n, 138 S. Ct. 1461, 1475 (2018) (quoting The
Federalist No. 39, at 245 (James Madison) (Clinton Rossiter
ed., 1961)). This basic principle arises from “a fundamental
structural decision incorporated into the Constitution.” Id.Our federalist system is not binary; it does not simply pit
the states—as a single entity—against federal power.
Rather, it recognizes the sovereignty of each individual state.
In the words of Justice Marshall, “[n]o political dreamer was
ever wild enough to think of breaking down the lines which
separate the States, and of compounding the American
people into one common mass.” McCulloch v. Maryland,
17 U.S. 316, 403 (4 Wheat.) (1819). Under our Constitution,
“the people of each state compose a State, having its own
government, and endowed with all the functions essential to
separate and independent existence.” Lane Cty. v. Oregon,
74 U.S. 71, 76 (7 Wall.) (1868). “Not only, therefore, can
there be no loss of separate and independent autonomy to the
States, through their union under the Constitution, but . . .
the preservation of the States, and the maintenance of their
governments, are as much within the design and care of the
Constitution as the preservation of the Union and the
maintenance of the National government.” Texas v. White,
74 U.S. 700, 725 (7 Wall.) (1869).
In the current, highly partisan political climate, regional
differences may be obscured by contentious national issues.
THOMPSON V. HEBDON 41
Jessica Bulman-Pozen, Executive Federalism Comes to
America, 102 VA. L. REV. 953, 962–63 (2016). However,
“[e]ven at the level of national politics, . . . there always
remains a meaningful distinction between someone who is a
citizen of the United States and of Georgia and someone who
is a citizen of the United States and of Massachusetts.” U.S.
Term Limits, Inc. v. Thornton, 514 U.S. 779, 859 (1995)
(Thomas, J., dissenting).
Here, of course, we are not dealing with politics at a
national level, but only with Alaska’s ability to take
measures to “represent and remain accountable to its own
citizens.” Printz v. United States, 521 U.S. 898, 920 (1997)
(internal citations omitted). State governments can and
should be “more sensitive to the diverse needs” of their
populations. Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).
Alaska must have the right to prevent non-resident interests
from taking hold of their elections. See Anthony Johnstone,
Outside Influence, 13 ELECTION L.J. 117, 122–23(2014)
(“No form of federalism, and therefore no form of
government under the Constitution, works without limits on
outside influence in the states.”). Therefore, I disagree that
Alaska’s self-governance interest is not “sufficiently
important” for purposes of limiting campaign contributions.
Lair II, 798 F.3d at 742 (quoting Eddleman, 343 F.3d at
1092).
III
For these reasons, I respectfully dissent, in part. I agree
that Alaska’s limitations on individual contributions to
candidates and election-related groups and on political party
contributions to individual candidates do not violate the First
Amendment. However, I also would hold that Alaska’s
nonresident aggregate contribution limit is constitutional.
Alaska has shown that the risk of quid pro quo corruption or
42 THOMPSON V. HEBDON
its appearance by out-of-state campaign contributions is
neither “illusory” nor “mere conjecture.” Lair III, 873 F.3d
at 1188 (quoting Eddleman, 343 F.3d at 1092). Further, it
has demonstrated its important interest in self-governance,
which justifies the nonresident aggregate limit. Thus, I
would affirm the judgment of the district court in its entirety.