Political & Election Law: Alaska: The Strictest of the Strict

Tuesday, September 26, 2017

Although the federal regulations regarding political “coordination” are extensive, they at least provide some guidance to those making communications, including independent-expenditure-only committees (commonly referred to as “Super PACs”). Some states provide similar guidance for political actors, whereas most still provide very little even though we’re more than six years removed from the Citizens United decision. And similarly, while some states have coordination rules that are less restrictive than the federal rules, others are much more restrictive. One such extreme (on the restrictive side of the continuum) is the state of Alaska, where its Alaska Public Office Commission (“APOC”) has taken the position that any interaction between a Super PAC (what they term an “independent expenditure only group”) with a campaign will result in illegal coordination.

In an advisory opinion released in 2012, which has not been superseded, APOC took a strict reading of the definition of “independent expenditure.” That definition states that, under Alaska law, an independent expenditure means “an expenditure that is made without the direct or indirect consultation or cooperation with, or at the suggestion or the request of, or with the prior consent of, a candidate, a candidate’s campaign treasurer or deputy campaign treasurer, or another person acting as a principal or agent of the candidate.” By itself, that definition looks like some other states’ independent expenditure definitions, including Texas’s. With that said, despite being in some company with other states, even this is a more restrictive definition of coordination than under the federal rules.

Importantly, it’s APOC’s actual application of the independent expenditure definition that should really have people concerned. In applying that definition to a Super PAC, APOC has stated that because Super PACs can raise unlimited amounts of money, “any direct or indirect consultation or cooperation with the candidate converts the expenditure into a contribution.” (emphasis added). In addition, APOC stated that a prior advisory opinion (AO-05-01-CD), which had allowed a Super PAC to obtain photographs of candidates without consulting the candidate on the use of the photograph –  was now “unworkable” in the context of Super PACs. That position is clearly at odds with the federal rules, which exempts the use of information, photographs, and video obtained “from a publicly available source.” On this topic, APOC concluded that any coordination between a campaign and a Super PAC “in any aspect of creating of financing ads” would result in investigation and result in a likely finding that a serious violation of Alaska law would have occurred.

So what about other activities where a candidate (or potential candidate) interacts with a Super PAC, such as a candidate appearing at a Super PAC fundraiser or even soliciting “hard dollars” for a Super PAC? In practicality, the legality of these activities remains unknown, but they clearly appear to be unwise given APOC’s statements and notoriety for over-regulating campaign activities. On the other hand, APOC did previously conclude that a Super PAC may use publicly available footage from a campaign website as long as no contacts are made between the group and the campaign; seemingly the only activity still blessed by the POC.

Thus, Alaska appears to ban interactions between outside groups and campaigns in near totality. We’re not saying that political actors in Alaska can’t operate Super PACs legally and effectively; it just means that they should proceed with strict boundaries because any interaction with a candidate would cause suspicion that, in the words of APOC, would likely result in a detrimental finding. Although this rigidity is doubtfully constitutional, political actors in Alaska should be aware of these positions and take caution in how they approach politicking in that state. That’s why we’re saying Alaska is the strictest of the strict.