Thompson v. Hebdon

Cite as: 589 U. S. ____ (2019) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
DAVID THOMPSON, ET AL., v. HEATHER HEBDON,
EXECUTIVE DIRECTOR OF THE ALASKA
PUBLIC OFFICES COMMISSION, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 19–122. Decided November 25, 2019
PER CURIAM.
Alaska law limits the amount an individual can contrib-
ute to a candidate for political office, or to an election-
oriented group other than a political party, to $500 per year.
Alaska Stat. §15.13.070(b)(1) (2018). Petitioners Aaron
Downing and Jim Crawford are Alaska residents. In 2015,
they contributed the maximum amounts permitted under
Alaska law to candidates or groups of their choice, but
wanted to contribute more. They sued members of the
Alaska Public Offices Commission, contending that
Alaska’s individual-to-candidate and individual-to-group
contribution limits violate the First Amendment.
The District Court upheld the contribution limits and the
Ninth Circuit agreed. 909 F.3d 1027 (2018); Thompson v.
Dauphinais, 217 F. Supp. 3d 1023 (Alaska 2016). Applying
Circuit precedent, the Ninth Circuit analyzed whether the
contribution limits furthered a “sufficiently important state
interest” and were “closely drawn” to that end. 909 F.3d,
at 1034 (quoting Montana Right to Life Assn. v. Eddleman,
343 F.3d 1085, 1092 (2003); internal quotation marks omit-
ted). The court recognized that our decisions in Citizens
United v. Federal Election Comm’n and McCutcheon v. Fed-
eral Election Comm’n narrow “the type of state interest that
justifies a First Amendment intrusion on political contribu-
tions” to combating “actual quid pro quo corruption or its
appearance.” 909 F.3d, at 1034 (citing McCutcheon v. Fed-
2 THOMPSON v. HEBDON
Per Curiam
eral Election Comm’n, 572 U.S. 185, 206–207 (2014); Citi-
zens United v. Federal Election Comm’n, 558 U.S. 310,
359–360 (2010)). The court below explained that under its
precedent in this area “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.’ ” 909 F.3d, at 1034 (quoting Eddleman, 343
F.3d, at 1092; some internal quotation marks omitted).
The court acknowledged that “McCutcheon and Citizens
United created some doubt as to the continuing vitality of
[this] standard,” but noted that the Ninth Circuit had re-
cently reaffirmed it. 909 F.3d, at 1034, n. 2.
After surveying the State’s evidence, the court concluded
that the individual-to-candidate contribution limit “ ‘focuses
narrowly on the state’s interest,’ ‘leaves the contributor free
to affiliate with a candidate,’ and ‘allows the candidate to
amass sufficient resources to wage an effective campaign,’ ”
and thus survives First Amendment scrutiny. Id., at 1036
(quoting Eddleman, 343 F.3d, at 1092; alterations omit-
ted); see also 909 F.3d, at 1036–1039. The court also found
the individual-to-group contribution limit valid as a tool for
preventing circumvention of the individual-to-candidate
limit. See id., at 1039–1040.
In reaching those conclusions, the Ninth Circuit declined
to apply our precedent in Randall v. Sorrell, 548 U.S. 230
(2006), the last time we considered a non-aggregate contri-
bution limit. See 909 F.3d, at 1037, n. 5. In Randall, we
invalidated a Vermont law that limited individual contribu-
tions on a per-election basis to: $400 to a candidate for Gov-
ernor, Lieutenant Governor, or other statewide office; $300
to a candidate for state senator; and $200 to a candidate for
state representative. JUSTICE BREYER’s opinion for the plu-
rality observed that “contribution limits that are too low
can . . . harm the electoral process by preventing challeng-
ers from mounting effective campaigns against incumbent
officeholders, thereby reducing democratic accountability.”
Cite as: 589 U. S. ____ (2019) 3
Per Curiam
548 U.S., at 248–249; see also id., at 264–265 (Kennedy, J.,
concurring in judgment) (agreeing that Vermont’s contribu-
tion limits violated the First Amendment); id., at 265–273
(THOMAS, J., joined by Scalia, J., concurring in judgment)
(agreeing that Vermont’s contribution limits violated the
First Amendment while arguing that such limits should
be subject to strict scrutiny). A contribution limit that is
too low can therefore “prove an obstacle to the very elec-
toral fairness it seeks to promote.” Id., at 249 (plurality
opinion).*
In Randall, we identified several “danger signs” about
Vermont’s law that warranted closer review. Ibid. Alaska’s
limit on campaign contributions shares some of those char-
acteristics. First, Alaska’s $500 individual-to-candidate
contribution limit is “substantially lower than . . . the limits
we have previously upheld.” Id., at 253. The lowest cam-
paign contribution limit this Court has upheld remains the
limit of $1,075 per two-year election cycle for candidates for
Missouri state auditor in 1998. Id., at 251 (citing Nixon v.
Shrink Missouri Government PAC, 528 U.S. 377 (2000)).
That limit translates to over $1,600 in today’s dollars.
——————
*The court below declined to consider Randall “because no opinion
commanded a majority of the Court,” 909 F.3d, at 1037, n. 5, instead
relying on its own precedent predating Randall by three years. Courts
of Appeals from ten Circuits have, however, correctly looked to Randall
in reviewing campaign finance restrictions. See, e.g., National Org. for
Marriage v. McKee, 649 F.3d 34, 60–61 (CA1 2011); Ognibene v. Parkes,
671 F.3d 174, 192 (CA2 2012); Preston v. Leake, 660 F.3d 726, 739–740
(CA4 2011); Zimmerman v. Austin, 881 F.3d 378, 387 (CA5 2018);
McNeilly v. Land, 684 F.3d 611, 617–620 (CA6 2012); Illinois Liberty
PAC v. Madigan, 904 F.3d 463, 469–470 (CA7 2018); Minnesota Citizens
Concerned for Life, Inc. v. Swanson, 640 F.3d 304, 319, n. 9 (CA8 2011),
rev’d in part on other grounds, 692 F.3d 864 (2012) (en banc); Independ-
ence Inst. v. Williams, 812 F.3d 787, 791 (CA10 2016); Alabama Demo-
cratic Conference v. Attorney Gen. of Ala., 838 F.3d 1057, 1069–1070
(CA11 2016); Holmes v. Federal Election Comm’n, 875 F.3d 1153, 1165
(CADC 2017).
4 THOMPSON v. HEBDON
Per Curiam
Alaska permits contributions up to 18 months prior to the
general election and thus allows a maximum contribution
of $1,000 over a comparable two-year period. Alaska Stat.
§15.13.074(c)(1). Accordingly, Alaska’s limit is less than
two-thirds of the contribution limit we upheld in Shrink.
Second, Alaska’s individual-to-candidate contribution
limit is “substantially lower than . . . comparable limits in
other States.” Randall, 548 U.S., at 253. Most state con-
tribution limits apply on a per-election basis, with primary
and general elections counting as separate elections. Be-
cause an individual can donate the maximum amount
in both the primary and general election cycles, the per-
election contribution limit is comparable to Alaska’s annual
limit and 18-month campaign period, which functionally al-
low contributions in both the election year and the year pre-
ceding it. Only five other States have any individual-to-
candidate contribution limit of $500 or less per election:
Colorado, Connecticut, Kansas, Maine, and Montana. Colo.
Const., Art. XXVIII, §3(1)(b); 8 Colo. Code Regs. 1505–6,
Rule 10.17.1(b)(2) (2019); Conn. Gen. Stat. §9–611(a)(5)
(2017); Kan. Stat. Ann. §25–4153(a)(2) (2018 Cum. Supp.);
Me. Rev. Stat. Ann., Tit. 21–A, §1015(1) (2018 Cum. Supp.);
Mont. Code Ann. §§13–37–216(1)(a)(ii), (iii) (2017). More-
over, Alaska’s $500 contribution limit applies uniformly to
all offices, including Governor and Lieutenant Governor.
Alaska Stat. §15.13.070(b)(1). But Colorado, Connecticut,
Kansas, Maine, and Montana all have limits above $500 for
candidates for Governor and Lieutenant Governor, making
Alaska’s law the most restrictive in the country in this re-
gard. Colo. Const., Art. XXVIII, §3(1)(a)(I); 8 Colo. Code
Regs. 1505–6, Rule 10.17.1(b)(1)(A); Conn. Gen. Stat. §§9–
611(a)(1), (2); Kan. Stat. Ann. §25–4153(a)(1); Me. Rev.
Stat. Ann., Tit. 21–A, §1015(1); Mont. Code Ann. §13–37–
216(1)(a)(i).
Third, Alaska’s contribution limit is not adjusted for in-
flation. We observed in Randall that Vermont’s “failure to
Cite as: 589 U. S. ____ (2019) 5
Per Curiam
index limits means that limits which are already suspi-
ciously low” will “almost inevitably become too low over
time.” 548 U.S., at 261. The failure to index “imposes the
burden of preventing the decline upon incumbent legisla-
tors who may not diligently police the need for changes in
limit levels to ensure the adequate financing of electoral
challenges.” Ibid. So too here. In fact, Alaska’s $500 con-
tribution limit is the same as it was 23 years ago, in 1996.
1996 Alaska Sess. Laws ch. 48, §10(b)(1).
In Randall, we noted that the State had failed to provide
“any special justification that might warrant a contribution
limit so low.” 548 U.S., at 261. The parties dispute
whether there are pertinent special justifications here.
In light of all the foregoing, the petition for certiorari is
granted, the judgment of the Court of Appeals is vacated,
and the case is remanded for that court to revisit whether
Alaska’s contribution limits are consistent with our First
Amendment precedents.
It is so ordered.
Cite as: 589 U. S. ____ (2019) 1
Statement of GINSBURG, J.
SUPREME COURT OF THE UNITED STATES
DAVID THOMPSON, ET AL., v. HEATHER HEBDON,
EXECUTIVE DIRECTOR OF THE ALASKA
PUBLIC OFFICES COMMISSION, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 19–122. Decided November 25, 2019
Statement of JUSTICE GINSBURG.
I do not oppose a remand to take account of Randall v.
Sorrell, 548 U.S. 230 (2006). I note, however, that Alaska’s
law does not exhibit certain features found troublesome in
Vermont’s law. For example, unlike in Vermont, political
parties in Alaska are subject to much more lenient contri-
bution limits than individual donors. Alaska Stat.
§15.13.070(d) (2018); see Randall, 548 U.S., at 256–259.
Moreover, Alaska has the second smallest legislature in the
country and derives approximately 90 percent of its reve-
nues from one economic sector—the oil and gas industry.
As the District Court suggested, these characteristics make
Alaska “highly, if not uniquely, vulnerable to corruption in
politics and government.” Thompson v. Dauphinais, 217
F. Supp. 3d 1023, 1029 (Alaska 2016). “[S]pecial justifica-
tion” of this order may warrant Alaska’s low individual con-
tribution limit. See Randall, 548 U.S., at 261.