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ALASKA CIVIL LIBERTIES UNION,          )
                                                                        )
                                                   Plaintiff,         )
                                                                        )
                                                                        )
                                                            vs.       )
                                                                        )
                                STATE OF ALASKA,    )
                                                                        )
                                                Defendant.     )
____________________________________)
Case No. 3AN-97-5289 CIVIL

Plaintiff, Alaska Civil Liberties Union (AkCLU), has moved for Summary Judgment, asking that the Campaign Finance Reform Legislation, Senate Bill 191, be declared unconstitutional and therefore null and void, with no legal force or effect. The State of Alaska has opposed, and has cross-motioned for Summary Judgment in its favor. Plaintiff has also moved for a Preliminary Injunction, seeking to enjoin the state from enforcing the 1996 Campaign Finance Reform provisions. Oral Argument has been heard on both motions.

At the outset, the court wants to make it clear that it intends to address the motions for Summary Judgment in a somewhat summary fashion. This is certainly not a reflection of the magnitude of the issue, which is significant, nor is it a reaction to the briefing and argument of counsel, which were both exhaustive and excellent for both sides. And it is clearly not a reflection of the court’s time and effort or extent of review of the issues presented. Rather, it is the result of what this court believes is a realistic assessment of its role vis-à-vis the role of appellate review of matters of this constitutional consequence. As the 8^th Circuit recently pointed out:

The Supreme Court has instructed that, in cases involving the First Amendment, Appellate Courts are to make an independent examination of the whole record to ensure that their judgments do not constitute a forbidden intrusion on the right of free expression. See New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 11 L. Ed. 2d 686 (1964). But we are also mindful of Fed. R. Civ. P. 52(a), which provides that a trial court’s factual findings are typically reviewed for clear error.

To reconcile these two legal propositions, we held last year that in cases involving the First Amendment, we would review findings of noncritical facts for clear error, but would conduct an independent review of critical facts. Russell v. Burris, --F. 3d--, 1998 WL 289879 (8^th Cir. June 4, 1998).

Recognizing this procedural posture, the court rules on the motions as a matter of law, fully aware that upon appellate review this court is owed no deference on either findings of critical facts or conclusions of law. Upon remand, this court of course stands ready to conduct whatever evidentiary inquiry may be directed.

An initial response to campaign finance reform, from diverse political perspectives, is that in almost any form it must be a good thing. It may be fair to say that a common public perception, or at least a common public concern, is that politicians are simply "bought and paid for." But the challenge for the court, and for all citizens, is to make a critical examination and to look deeper into the essence of our First Amendment guarantees regarding freedom of speech, expression, and association. While we as citizens may have a generalized fear of potential for corruption and undue influence resulting form campaign contributions and expenditures, it is well settled that without a showing of actual harm, the overriding First Amendment concerns must prevail.

As a result, and in short, the court is persuaded by, and adopts, the position argued by AkCLU, and it grants AkCLU’s Motion for Summary Judgment. By invalidating the 1996 act, the court does not mean to invalidate the legitimate concern of those citizens who believe that politics has become little more than a fund-raising rat-race. But the case law interpreting the issue of contributions and expenditures as expressions of free speech is clear.

While the court adopts the position argued by Plaintiff and does not intend to review it point-by-point here, the court does make the following brief summary.

The seminal case on this issue is Buckley v. Valeo, 424 U.S. 1 (:1976), and as it pertains to this case now before the court, it stands for the following propositions:

1. For the state to show a compelling state interest which justifies infringing upon protected First Amendment rights, the state must demonstrate the existence or appearance of corruption. In this context, however, the term "appearance" means more than the vernacular "concern that too much money is being spent in political campaigns;" rather, it requires a showing of "real harm." Colorado Republican Federal Campaign Committee v. FEC, -- U.S.--, 116 S. Ct. 2309, 135 L Ed. 2d 795 (1996); Vogler v. Miller, 651 P.2d 1 (Alaska, 1983).

While the court does not wish to hoist the state on the petard of its own language, it does believe that the state summarized the essence of the matter in its Memorandum in Opposition to Motion for Preliminary Injunction, where it said at page 7 that "the initiative arose because of concerns that large contributions distorted the political process and made elected officials captive to the pressures of raising campaign funds."

On its face this concern, while it may present a very real issue, does not represent a "real harm" of actual or apparent corruption.

2. while some limits on campaign contributions may be appropriate, such as the 1976 Buckle $1,000 limit per election, for a $2,000 total for the primary and general election, significantly lower limits could amount to an impermissible "difference in kind." Carver v. Nikon, 72 F. 3d 633, 644 (8th Cir. 1995). Adjusted for inflation, and given the fact that the 1996 Act limits contributions to $500 total, versus the $2,000 permitted under Buckley in 1976, the only conclusion to be drawn is that the limit set by the 1996 act amounts to a "difference in kind." Although the court understands the state’s argument that the $1,000 federal limit has not been altered over the years, it flies in the face of reason to assume that this 1976 provision somehow serves as a "grandfather governor" over all future campaign statutory contribution limits, regardless of when they are contemplated and enacted.

3. Buckley, and subsequent cases, have rejected the notion of using campaign contribution limits to somehow "level the playing field" amongst wealthy and less wealthy citizens. Buckley, 424 U.S. 1, at 48, 49. The court agrees with Plaintiff’s assessment that the state has nevertheless argued "leveling the playing field" in part, as justification for upholding the 1996, Act. To the extent this argument is made or suggested, it is rejected, just as it was rejected in Buckley.

The court is aware of, and has considered, the state’s arguments regarding severability of various provisions of the 1996 Act should the court find other provisions unconstitutional. Again, however, this lower court is persuaded by and adopts the Plaintiff’s argument on this issue, and finds that the various provisions of the act are so inextricably intertwined so as to not find them severable.

Based upon the above discussion, upon a review of the briefing filed on the issued and the argument presented thereon, and upon a review of the entire record herein,

IT IS HEREBY ORDERED that:

1. Plaintiff’s Motion for Summary Judgment is GRANTED, and the Campaign Finance Reform Legislation, Senate Bill 191, is declared unconstitutional and therefore null and void, with no legal force or effect. The state is therefore directed to conduct the present campaign according to the laws in force and effect as of the date of enactment of the 1996 Act;

Defendant’s Cross Motion for Summary Judgment is DENIED; and

Plaintiff’s Motion for Preliminary Injunction is MOOT.

ENTERED this 10^th day of August, 1998, at Anchorage, Alaska.

Michael L. Wolverton

Superior Court Judge