A legal opinion from a legislative lawyer says that the current law banning non-incumbent candidates for governor and lieutenant governor from soliciting funds from Juneau residents while the Legislature is in session is likely an “abridgment of the First Amendment freedoms of those persons who desire to contribute.”
Therefore, a court would likely find the ban unconstitutional, Alpheus Bullard, a lawyer with the state Legislative Affairs Agency’s legal services wrote.
“The U.S. Supreme Court has held that the only rationale for restricting the time or place in which campaign contributions may be made is the threat of corruption or the appearance of corruption,” Bullard wrote.
Bullard wrote that the threat appears not to present the same concern with non-incumbents as it might with sitting legislators or with a sitting governor.
The court already found that a non-incumbent who was running for office could solicit funds during session from Juneau residents, but a candidate for the governor’s office appears not to have been addressed.
The opinion is in conflict with a March 14 opinion issued by the Alaska Public Offices Commission, which said that the law is not unconstitutional and that the court would likely uphold the ban.
The question to the Legislature’s lawyer was posed by Sen. Berta Gardner, who did not immediately respond to questions about why she had requested the decision and what she plans to do with it. Former Attorney General Bruce Botelho, who is campaigning for Mallott, said that he had not discussed the issue with Gardner.
The law, passed in 1998 along with a slate of other campaign finance reforms, is a particularly relevant one for Democrat Byron Mallott. Campaign restrictions already make it daunting for non-incumbents to build the kind of war chest they need to compete, and this law makes it all the more challenging. Mallott is from Juneau, and his campaign is headquartered there.
APOC said that Mallott could physically be in Juneau and still solicit funds, however, he couldn’t solicit them from Juneau residents.
Campaign contributions from Juneau residents given to a campaign during the session have to be mailed, unopened, to Anchorage.
Bethelo said that Mallott’s campaign wouldn’t likely challenge APOC’s decision and will continue to comply with the agency’s guidance.
The law also makes it tough for incumbents. In an electronic age with the regular use of Facebook, email solicitations and online contributions, how do you keep track of who is contributing from Juneau?
In order to try and comply with the law, Jerry Gallagher, who is Gov. Sean Parnell’s campaign manager, posed this and other questions to APOC in January. The agency said that campaigns must put a disclosure on websites and in solicitation emails. It also said that contributions have to be returned if the campaign is aware of any Juneau resident who contributed during session as a result of any solicitation.
Gallagher said the campaign is complying with the rules.
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