think your honor may it please the court i'm kevin clarkson counsel for the appellants david thompson jim crawford here in downing industry gayety of the alaska republican party the parents are challenging for provisions of the alaska campaign finance laws the alaska's aggregate limit for nonresident contributions to candidates lask is five hundred dollars individual candidate individual to candidate limit alaska's five hundred dollars individual or group limit and also the aggregation of political party complements for purposes of party contributions targeted we're microphone just a little bit up for us i will try when you're six foot three it's a little hard to stay close but i'll do my best the start with a nonresident aggregate in alaska it's unconstitutional because it's pretty mccutcheon it's pretty by this court's decision in van nada it is required to be subject to strict scrutiny under this court's decision in nature versus brewer which applied to residency restriction as to petition circulators and it furthers no legitimate government interest in alaska's claimed interest in self governance or a republican form of government is not a legitimate interest for first amendment purposes  alaska's law creates an arbitrary first come first serve structure under which only a token few nonresidents are allowed to give to a candidate so for example for a house candidate they can only receive three thousand dollars per year for nonresidents only six nonresidents can give them a maximum based limit five hundred a contribution to a house candidate once that inquire about say the evidence is i read the trial transcript and correct me if i'm wrong the didn't to tender any expert testimony about quid pro quo or anything else in terms of the nonresident aspect of the case well i think i'm not i'm not commenting one way or another i just want to make sure though i think i'm trying to remember the trial i think the evidence about what is or was not quid pro quo corruption all goes to each of the limits that are being challenged because it's the same standard for all of them because the government has to have the same justification for any limit that it puts in place you know that they defended based on that and on based a legitimate government interest and they had some expert testimony but i just want to next that understand the state of the record you didn't you didn't have to but you didn't tender any evidence on these questions right well i can say this this record is void of any evidence to reflect that there's a correlation between residency and quid pro quo corruption there's no evidence in this record to support that proposition at all well i think there was expert testimony concerning nonresident corporations and of course vico was and was a foreign corporation and there was direct  i just want to make sure that i understood what you tendered in this case well you're answering a question that i haven't asked her when all the evidence we turn your honor goes to the heart of what they have been had the burden of proof and what they were required to prove and that is they have to justify th aggregate limit based upon the fact that it prevents quid pro quo corruption so what the law does is it stops nonresident after us token if you have given to a candidate from contributing to that candidate david thompson the evidence is clear  former navy seal of war veteran a retired schoolteacher from wisconsin simply wanted to give one hundred dollars contribution to his brother in law who was running for state house in alaska he couldn't do it hundred dollar contribution when nonresidents are allowed to give in alaska they're limited to the same five hundred dollars base limit that nonresidents are limited to using the residents are limited to so if the five hundred dollars basin limit is sufficient to prove that quid pro quo corruption or its appearance for a resident alaska it's inconceivable that it would not do the same for non residents of alaska and yes heaven's theory was that complete speculation and conjecture based on no evidence in this record that outside industry interests to go out and find hundreds that aggregate their resources right well they would violate the law because giving in the name of another is a violation of the law it's criminal and so they're resting their idea on criminal conspiracies of grand proportion which would be prosecuted when alaska is like their argument i didn't read the testimony that way or the testimony to say that the state corporations would be motivated to encourage employees and others affiliated to give sums to influence the outcome of the election for their own ends well i don't think there was any suggestion again maybe maybe i'm wrong but i don't think i didn't read the trial testimony saying that there was going to be any criminal activity that you were actually in to give money in the name but i think there was speculation by professor painter in particular that outside interest would actually funnel money through nonresident because anyone reza can only give five hundred dollars but if you just they would legally encourage people to go give money there is no evidence in the record to support that is a reasonable proposition in sixteen years of data that was presented in this record alaska's candidate seldom reached their nonresident caps there's no evidence that this happens and that's true in the limit was five hundred or doubled in a thousand it doesn't matter what the limit is there's no evidence that nonresidents or outside interests have somehow tried to the to pool resources to funnel outside money into alaska and even if that was the case and that's what they're trying to prohibit that's an improper purpose because the only thing they're allowed to prohibit is quid pro quo corruption outside interests legally how it would be your position because what they do argue is that on the the written the nonresidents is they make an south governance it would be your position there's no room for that and that would invalidate that that's true and i would also say that that violates this course decision in van not it was specifically rejected the idea of a state protecting its republican form of government or in that case of voting districts republican form of government it seems to me though you have a little more problems with layer and i signed onto it to central and that but the descent toll is not the law so it why doesn't the layer to cover part of what's in front of us here whether we like it or not well there confirms that only a quid pro quo corruption interest is permissible where didn't involve an aggregate of the nature that's involved in this case how the record does include testimony here of legislators stating that their understanding that they receive campaign contributions in return for and how doesn't that show at least an appearance of quid pro quo corruption ok if we shift to that five hundred dollar individual limit which is more where that discussion goes because that testimony didn't relate to the aggregate by nonresidents at all except that the veto was a foreign corporation you can quibble it was formed in delaware wilmington delaware started out of state and out of headquartered here so arguably the current caught testimony goes and extortion there is no evidence that the vico allen scandal if you want to call it that involved illegal campaign contributions that was completely illegal activity so to correlate what happened in the ellen vico situation with the i just occasion for a limit on what a legal log complying citizen can contribute to a candidate is a bridge that shouldn't be crossed there is a way to deal with criminal activity and that's exactly on in terms of tying the knot in residency restriction to anti corruption is that a fair statement of the record i think i know you disagree with the import of that i'm just trying to find out what's on the table i think the evidence is clear that there well you know the vehicle for the ghost the vehicle situation involved individual who are last to residents i mean even that illegal activity by vico involved get bonus schemes to citizens who are in alaska giving legal can and the will of the money they were giving contributions they were illegally acting because they were giving money that was actually somebody else's money is what they were doing as far as illegal campaign contributions i was so your honor again there's no evidence in this record of any activity by outside interest to funnel contributions from nonresidents into alaska to influence campaigns there isn't there is no evidence in this record to go to judge callahan's question candidates officeholders and donors testified that they were not and they did not appear corrupt when they received and gave one thousand dollars contributions and it's that extra the record forty fifty nine to sixty two a five to two eight three nineteen three twenty one three thirty three thirty two and three thirty four that testimony came from those folks they said nothing about these thousand dollar contributions which is the amount of money that was approved by the supreme court in buckley in one thousand nine hundred seventy six alaska's limit today is one twentieth of of what that limit was in one nine hundred seventy montana i believe the statewide limit was somewhere around six hundred dollars something of that nature the pretty similar well there's a similarity between the limit in alaska now and the limit that was struck down by the u s supreme court in randall as well because the limit in randall was four hundred dollars and night excuse me two thousand and six if you take alaska's limit and translated to two thousand  aroud did not abrogate the approach set forth in montana right to life versus edelman which is the ninth circuit case for assessing whether contribution limits are closely drawn so why should why should we as you argue assess alaska's base contribution limits under randall i think the randall danger factors even if they don't control is controlling tabs they are danger signs that are set out there as markers for the court to look at to pay closer attention to whether limit over the last sixteen years nine hundred or bridge view should be applied to the district courts evidentiary determination at the base contribution limit does not prevent candidates from amassing sufficient resources alaska's limit triggers all of those for all of those for danger signs and the aggregate limit to go back to then not a which is a controlling decision in the circuit this course said that residency is not a valid distinction involved a limit that is almost indistinguishable from alaska's aggregate limit it was a proportional limit so that when you went to a candidate raise twenty five percent of their money from outside and individuals they couldn't raise  more from outside alaska is is a dollar limit but once the limit is hit whether it's for mont or whether it's alaska it's a bar from that point forward the second circuit struck it down and said that an interest in protecting  district actually then not involved both because it was both oregonians who lived outside the voting district and non residents who lived outside of oregon who were prohibited from getting so it was both and then not a but then not a actually says that out of district residents your out of state residency wasn't significant of a distinction in the quoted whitmore vs f e c for that proposition so it's not a fair distinction to say or oregon bent and then not a that was a district outside of a district distinction the the prop the criteria that was impermissible was residency it was residency and if you look at this court's decision nader versus brewer this court held that residency restrictions for circulat restriction so the yeah that's in this record is clear that alaska's five hundred dollars limit was selected for purposes that have nothing to do with quid pro quo corruption there's no evidence in this wreck in fact the evidence in the record is clear that the considerations that went into picking that final limit had nothing to do with trying to figure out what amount of money was necessary to prevent quid pro corruption or its parents have been herself admitted at trial that the five hundred dollars limit there's no magic to it because it's just guesswork that's x or to record four hundred so guesswork doesn't meet the state's burden to pick an amount that is nearly focus on quid pro quo corruption the evidence in this case reflected that from two thousand and two to two thousand and fourteen senate campaigns on average spent more than they raised their hand deficits when campaigns raise more about seventy thousand and losing campaigns incumbents raised about thirty seven to four percent more than challengers in house races on average they spent more than they raised and they ran deficits winners raised more than eight thousand dollars and losers well that plus the fact that there was evidence in the record that campaigns in recent event races were running out of money and that's it actually the record one hundred one one one one online one eleven thirteen fifty two to thirteen seventy five and trail exhibits eighty nine to ninety three though they were campaigns in alaska they're running out of money because they can't raise enough and what we have in alaska is we have a limited pool of donors well they have seven hundred thirty six thousand people in the state five hundred fifty thousand of which are registered voters five hundred thousand who actually well less than half that even show up to vote in over sixteen years is less than one percent than even make a campaign contribution to a campaign that's less than five thousand donors per election cycle so the a lot the the depth of the limit which is the lowest in the nation for statewide races in alaska makes it not nearly focused on quid pro quo corruption if i'm right this is two minutes left so i should reserve my name is laura fox america present the director and members of the alaska public offices commission the state of alaska uses campaign contribution limits to try to protect the democratic ideal that elected officials should be and should appear to be accountable to their constituents not to the highest bidder and that's the foundation of our democracy and the state simply asked the court to follow the long history of decisions extending from  and i pulled alaska's contribution limits so first i want to make a couple well it's ok lehrer does i think it would appear not to my happiness but it would appear that it it bears on the five hundred dollars limit would you concede that at some point it's not you know if it were one dollar that might be a problem right certainly and i'm and with the word and we were do we say five hundred good one dollars not good ten dollars fifteen you know well that's what the court's five hundred pretty like there aren't as many states that have five hundred it's true but alaska is among the least populous states in the nation so it would be expected that it would have five hundred goes more here than in the bay area in california sorry i didn't buy hundred dollars buys more here in alaska than five hundred dollars in the bay area and well certainly with the very low population in the state we have you know every jurisdiction has somewhat different numbers to work with when you say but oh well that's what the edelman test is designed to determine and so if we had a lower limit and we had a different record i think that the most important piece of the test on that question is the piece that's asking about whether hundred dollars that cetera the court said well at a certain point things said i mean he did know that between two thousand and two and twenty fourteen competitive campaigns average on average that more than they raised and income it's raised thirty seven percent more than challengers and winning campaigns for campaigns that raised the most money so he's arguing that's compelling evidence that the five hundred dollars base limit hampers the ability of challengers to wage affective campaigns and i also noticed that our last law imposes an annual versus a per lection per election contribution limit so doesn't that also artificially benefit incumbent s well the evidence that the state put on on the other side of the question about candidates being able to run effective campaigns was there was more evidence the district court credited the state's evidence over the evidence that that you've mentioned there was also some problems with various specific pieces of bad evidence like that evidence about candidates campaigns running out of money was flawed because it didn't account for other things that candidates do with  leftover money at the end of campaigns i think the state's contrary evidence was that eighty percent of campaigns had left over money that they transferred me and gave charitable contributions are transferred to i'm assuming and that you would view th standard every few differently as it applies to the district courts evidentiary determinations that the base contribution limit does not prevent candidates from amassing sufficient resources to wage effective campaigns because he said it was to novo and i'm assuming that you would have a different view on that standard review that's correct your honor i think it just and larry and the court's most recent decision just if you look at the standard or review section of blair the court said well it's true in a first amendment case that maybe there's not as much deference as there would be normally to a district court's factual findings but it's still there's still a level of deference there it's not been over review and so the court should you know although it might be delving a little more into the record than it might otherwise looking at factual finding the court should still be deferring to the district court destroyer heard all this evidence weighed it heard the experts heard th the cross examination and the problems with the pieces of evidence that the plaintiffs put forward and so the court should give a lot of weight i think to the district court's findings because i want to give you an opportunity to respond i'm going to sort of say what i do i'm most troubled by the nonresident that in mccutcheon the supreme court stated that any regulation of campaign contributions must target what we have called quid pro quo corruption and its appearance how does that i'm qualified language provide any room for your stated self governance interest in an acting the nonresident aggregate limit you argue that alaska has a compelling interest  protecting alaska system of self government perm outside control do the non resident aggregate limit i in my view well i mean how is that just not another way of saying that alaska does not want state officials to feel pressure to respond to the influence of out of state energies just such an interest revert to the now rejected state interest in preventing undue influence and access well if so for one thing and  in the in our federal system of preserving its separate identity as a separate data specifically said quid pro quo corruption or it's appearance that's the standard right but again the court wasn't upon which first amendment liberties are limited but the nonresident limit can be upheld on those grounds too but so in mccutcheon the court was presented with a variety of rationales it accepted only one of them but it only rejected really the entertain other rationale that makes sense and that weren't actually in front of the court and actually rejected and as any court accepted yourself government a republican form of government argument no your honor the closest analogy is the blooming analogous to for instance one state's federal representatives in the us congress or us senate because the the entire country although not everyone can vote for alaska's senators or have their views presented to people who do group because they're on the street well just that well in this context we're talking about campaign contributions as opposed to other forms of expression like for instance th circulator law that the plaintiffs were frank to that's a more direct more core form of first amendment expression than campaign contributions so we're dropping this universe where we're not in strict scrutiny the government's interest doesn't have to be quite as as high as in other contexts and in this context of campaign contributions we recognize that they they influence you know they're meant to influence the legislators and alaskans are entitled  to prefer that their legislators be beholden to alaskans i mean the voices alaskans could easily maybe need to convince the supreme court of that well your honor as i said that the  inherently corrupt but the alaska public office is commission thank you has a limited ability to police the activities of not residents and alaska special characteristics like its natural resources make it a prime target engage in contribution schemes involving nonresidents that a pack would have to ask a public office because commission would have a very difficult time policing or looking into or investigating at all legislator to make sure i understand the state of the event you had expert testimony at least by two people about the nonresident issue and you had testimony by a legislator who talked about i think some kickbacks with the alaska kickback with the alaska railroad you had testimony about historical attempts to influence zip and then you threw in the vico scandal which may or may not be distinguishable because those criminals at the state of the evidence on this yes your honor we don't have any direct evidence that these kinds of schemes involving nonresidents are actually happening but not president limits have been in place for a long time so with those nonresident limits in place you couldn't have a situation where for example legislators could go outside and fundraise and get their entire campaign budget essentially covered by nonresident  out of state interest perhaps directed from a particular source perhaps affiliated with a particular source and that currently happen it's not happening because these these limits have been in place for many years so we do have d macbeth's testimony about the history we have dr painters testimony about the different kinds of schemes that people engage in the difficulty of detecting them and we have the vico scandal and so the state only needs to show that the risk of corruption is that it's addressing is not a loser and this evidence this body of evidence is sufficient to show that mr clarkson's response to the vico scandal was criminal activity and not directed toward campaign contributions well some of it did involve campaign contributions and the fact that it was criminal doesn't mean that contribution limits are not also an effective way to address the same sort of problem i mean this scandal shows that alaska's politicians are not so pure that corruption is a non concern and then also contribution limits are an important supplement to criminal bribery laws both because bribery is difficult to detect and prosecute as dr painter testified about and also because aggressive criminal policing and criminal prosecution of this kind of contribution related corruption would actually in some ways be more chilling of first amendment rights than just having contribution limits because the difference between a corrupt contribution and an innocent contribution lies in the motives and private communications of the candidate and the contributor and having the government coming in and aggressively inquiring into the motives of everyone who's contributing money would actually be in some ways more chilling of free speech than just putting a cap to put a limit on the potential for corruption your individual to group contribution which is also being challenged it would appear to me that that presents a closer issue and isn't directly covered by the layer  because it reflects a more attenuated risk of quid pro quo corruption or its appearance on the base limit in mccutcheon the supreme court rejected a limitation that kept aggregate contributions to political action committees because money was not transacted directly between contributor and candidate there was not the same risk of quid pro quo corruption or its appearance so they could while the government articulated its compelling interest limits and it rejected the kind of arguments the plaintiffs make here that like contributing to the group isn't going to create a quid pro quo because you're not contributing directly to the candidate so that case recognize that can you know groups can be used to  circumvent the base limit and end up serving just as conduits for excess individual contributions so that case recognized that and upheld a limit like that and rejected the kinds of arguments that are being  forward against that and the supreme court has not overruled that decision has cited it favorably so if that if the basement is constitutional then measures to stop people from easily circumventing it or at least put you know put limits on the fact that the state considers contributions of party subgroups to be contributions that the party that makes sense of the subgroups of the party are connected to the party depending on the party there's a higher limit for political part significantly higher than for other groups so the state has to have some way of determining what contributions count as party contributions and the state way of doing that makes sense other kinds of groups don't have higher limits so this the reason that the states does this wouldn't apply to for example labor unions as the example e's and so just to get back to the individual limits as is already been discussed here larry is controlling and establishes certain principles and forecloses certain arguments for purposes of this case and the court said in lair that it shouldn't be in the business of fine tuning contribution limits for states and it rejected at least an act of alaska's limits lare specifically rejected that argument the plaintiffs argue that the state has to justify the change from its prior limit to its current limit and they are specifically rejected that approach also so later takes all of those arguments off the table and here are evidence the state of alaska's evidence was at least as good and in many cases better than the evidence that was considered sufficient to uphold very similar limits where and so really the only reason that it would make sense for the court to uphold montana's limits and lair straight down alaska's limits here would be if the record showed that candidates weren't able to effectively campaign and that's not what the records show that's not what the district court found we had candidates testify we had political consultant experts testify we had data it all showed that candidates can still effectively campaign in alaska and th asserted that the contrary is true on on appeal or explain why those findings were clear  i guess if the court doesn't have any further questions about any of the specific limits the state would ask that the court follow the long history of decisions extending since buckley and uphold alaska's reasonable contribution limits to strike a balance not involve a nonresident aggregate cap and didn't and it established that only quid pro quo corruption will suffice just like mccutcheon in mccutcheon and and buckley the court rejected the concept the government may restrict the speech of some elements of our society in order to enhance the relative voice of others this is a concept according to the words of justice kennedy that is foreign to the first amendment that's exactly what alaska's aggregate limit is government's primary tool according to mccutcheon for preventing quo corruption is the base limit an aggregate limit is just a layer on top of the base limit and what mccutcheon says is what the government can do because in buckley they allowed an aggregate because they were legal avenues that people could pursue to circumvent the base limit by the time mccutcheon came around those avenues have been cut off by surgical legislation by congress because you said you can't have a base limit layered on top of that surgical restrictions on the avenues of corruption and then a third layer which is an aggregate at that point the aggregate has no utility and it only burdens free speech alaska has a three layered system they have a base limit they have surgical restrictions against avenues of restriction you can't earmark you can't give in the name of someone else and then they have an aggregate on top of that that is exactly what mccutcheon says is not permissible in terms of the individual to group limit well i'll have your medical association does appear to be a good lot doesn't appear to be over mccutcheon and if that's the case in that case the court upheld such limits as furthering the governmental interest in preventing the actual or apparent corruption of the political process because they prevent contributors  and you have to share attribution for that contra one thousand dollars contribution from the group to the candidate you have to share attribution with everybody else who gave money to that group and alaska i think they argued that a group can be two people so that was like a husband and wife could be a grape but that's true they could i guess and they could somehow do five hundred dollars more but it's true if there were any evidence of that taking place in alaska that mean conceivably theoretically that's possible your honor yes it's true but there's no evidence that it would happen and think about it just to pass twenty five thousand dollars to a can of the of your choice through multiple two person groups it would take fifty people engaging in criminal activity in order to accomplish that so that's what mccutcheon called  a grand conspiracy of criminal activity that is beyond the realm of reasonable expectation they called it conjectural and speculative in mccutcheon thank you can make your own thank you both for your argument today it's just hard to be submitted for decision and we will be on recess for the