A few days ago I received a call from Tom Lucas, the campaign disclosure coordinator with the Alaska Public Offices Commission (APOC). He told me he wanted to talk about letssackrevak.com. It took me a few seconds to realize what he meant. Months ago I bought letssackrevak.com as a joke. It cost $12.17. Someone on Facebook joked that they were going to start a group called Let’s Sack Revak, mocking the group I ran supporting Josh Revak in 2018 called Let’s Back Revak. When I bought letssackrevak.com, I forwarded it to Josh Revak’s campaign site, posted it on the thread as a joke, and forgot about it. That was on November 27, 2019.
Lucas informed me that this had come to their attention and that it was considered an expenditure under Alaska law. That means someone reported me. I get that’s how politics works. A few weeks ago I reported about the website rinosafari.com in my Sunday column. I said it looked like the work of Michael Chambers due to the rudimentary graphic art. A few days later Chambers admitted on Facebook that he was in fact behind the website. APOC contacted him and told him he needed to register that as an expenditure.
When Lucas called me he asked me what I thought the difference was between what I did and what Chambers did. I told him Chambers bought a domain, built a website, and is actively using it to campaign for and against candidates. My purchase of the domain letsackrevack.com, on the other hand, was meant as a joke on a Facebook thread. I forgot about it after I did it.
Lucas recommended I file an expenditure report. He also informed me that the daily fine of $50 will continue to accrue until I do so. While APOC has not yet sent me a notice of violation, they likely will. 163 days have elapsed since November 27, 2019. At $50 a day that is $8,150! If you follow APOC you know these ridiculous fines usually get reduced by 99% or even eliminated. I went ahead and filed the report although I indicated I do not feel this is an expenditure supporting a candidate.
After Lucas called me I called my friend Lee Baxter, who is a lawyer. He is familiar with Alaska campaign law and has argued matters before APOC in the past. After our conversation Lee did some research and uncovered a serious issue with Alaska’s campaign laws. I will let him take over from here.
The landscape of campaign finance law is a complex web of statutes and regulations. The Alaska Public Offices Commission enforces these laws. Over the past few decades, state and federal campaign finance laws have been sliced and diced by court decisions ruling that prohibitions and reporting requirements violate free speech principles. Courts looking at these rules often make the point that restrictions affecting political discussions must be closely scrutinized to ensure that political debate is not chilled (when someone self-censors because they are unsure of what is legal and illegal) and is not prohibited.
APOC’s enforcement of independent expenditure reporting requirements on Jeff’s purchase of letsackrevack.com brought to light one example of how campaign finance laws can go too far and can chill run-of-the-mill political advocacy. Alaska statute defines “independent expenditure” as:
any purchase or transfer of money or anything of value, incurred or made for the purpose of: (1) influencing the nomination or election of a candidate; (2) use by a political party; or (3) influencing the outcome of a ballot proposition. To be “independent,” the purchase, transfer or provision of anything of value must be made without coordination with a candidate, or any principal in the candidate’s campaign.
Alaska statute requires anyone making an independent expenditure to file a report disclosing the amount spent with APOC “not later than 10 days after the independent expenditure has been made.”
What is striking about Alaska law on independent expenditures is that there is no minimum dollar threshold that is exempt from reporting to APOC. According to the National Conference of State Legislatures, as of 2014, Alaska is one of only seven states that does not exempt small independent expenditures from the reporting requirements. The other states that require all independent expenditures be reported regardless of size are New York, North Dakota, Ohio, Georgia, Tennessee, and Wyoming. Most states exempt aggregate independent expenditures of less than $500 (meaning $500 in total when all expenditures made during a cycle are made), while a couple like Rhode Island and Maine exempt only aggregate expenditures of less than $100.
It bears noting that Alaska does have a safe-harbor provision for independent expenditures made by individuals in support of an initiative or referendum. If an individual spends $500 or less in the aggregate supporting or opposing an initiative through independent advocacy (make pamphlets or sign, for example) the individual does not have to report these expenditures to APOC.
Alaska’s requirement that all independent expenditures be reported to APOC within ten days is troubling because it turns hundreds of Alaskans into campaign finance violators every year. Think of local political rallies. It is common for these attendees to bring home-made signs with catchy sayings advocating for certain candidates and against others. APOC has confirmed that the purchase of art materials to make such a sign (markers, poster board, etc.) is an independent expenditure as defined by Alaska statute. I agree with APOC. That’s what the statutes say. APOC is charged with enforcing the law as written, not as it deems fit, and Alaska law as currently written would require APOC to take action on a complaint from your neighbor that you have a homemade political sign in your yard for your favorite candidate and a search of APOC’s database shows you have not reported that independent expenditure. Meanwhile the clock is ticking on your fine of $50 a day.
This is why most states have a de minimis exception for reporting independent expenditures. These states have reasoned that individual people should not have to report run-of-the-mill expenditures they have made without coordination with a campaign to support their candidate of choice. Alaska should take a hard look at adopting a similar de minimis exception so that individuals can engage in their non-coordinated, independent, grassroots advocacy for candidates without having to report expenditures made in that effort to APOC. The law shouldn’t require you to file a report disclosing that you spent $50 in gasoline to attend a rally in support of your favorite candidate, that you spent $20 on art materials to create a sign for your preferred candidate, or that you purchased and redirected a domain for $12.17 as a joke.
Both of us have worked with APOC for years. Jeff has run for office twice and ran an independent expenditure group. Lee has represented clients and argued cases before APOC. Tom Lucas, the Executive Director Heather Hebdon, and APOC staff have always been responsive and easy to work with. APOC is not the problem. The legislature failing to fix these statutes is the problem. Most legislators are terrified to crack this open because they fear potential public backlash for changing or amending campaign laws. They need to get past that and do their job to fix these laws. A serious overhaul of Alaska’s campaign laws is needed.
The law should not allow people to weaponize APOC against their political rivals. It should allow APOC to differentiate between those who are violating the law with malicious intent and those who are using constitutionally protected free speech to engage in political activity. This has been a problem for many years. It’s time to fix it.