Can Idaho restrict contributions to a candidate's campaign so that only people who live in the candidate's district (or in Idaho for statewide office) can give money, and prohibit corporate contributions to candidates?

Subject

Certificate of Review under Idaho Code § 34-1809 of a proposed initiative that would have amended Idaho Code §§ 67-6610 and 67-6610A to limit contributors to a state-office candidate's campaign to "constituents" of that office (residents of the legislative district for legislative campaigns; residents of the judicial district for district judge campaigns; Idaho residents for statewide campaigns), and that would have prohibited corporations from contributing to a "Legislative Authorized Candidate Committee" or "State Authorized Candidate Committee."

Currency note

This opinion was issued in 2015. Subsequent statutory amendments and First Amendment campaign-finance decisions may have developed the law further. Treat this page as historical context describing the 2015 advisory review, not as a current statement of constitutional or Idaho law.

Plain-English summary

The proposed initiative had two main moves: (1) only district residents could donate to a district race, and only Idaho residents could donate to a statewide race; (2) no corporate donations to candidate committees. Political action committees and state party committees could still take corporate money, as long as the contributions were not earmarked for specific candidates.

The AG flagged both substantive and form problems.

Form. The proposed amendments were not in legislative format. They did not use strikethroughs and underlines to show changes from current law, and they introduced capitalized terms like "Legislative Authorized Candidate Committee" without defining them. The AG recommended fixing both.

Substance. The First Amendment problem was fundamental. The Supreme Court has held that the only legitimate basis for restricting campaign finances is preventing quid pro quo corruption or its appearance. Restrictions designed to "level the playing field," to "level electoral opportunities," or to enhance the relative influence of one group over another are not constitutional grounds, citing McCutcheon v. FEC, 572 U.S. 185, 134 S. Ct. 1434 (2014).

The constituent-only rule looked exactly like the kind of "leveling" restriction that McCutcheon and Citizens United forbid: it would enhance the influence of in-district donors over out-of-district donors, without being tied to any quid pro quo concern. Two federal circuits had already struck down similar rules:

• Landell v. Sorrell, 382 F.3d 91 (2d Cir. 2002), reversed on other grounds sub nom. Randall v. Sorrell, 548 U.S. 230 (2006), invalidated a Vermont statute capping out-of-state contributions at 25% of total contributions. The Supreme Court noted, "the parties do not challenge that holding."
• VanNatta v. Keisling, 151 F.3d 1215 (9th Cir. 1998), cert. denied, 525 U.S. 1104 (1999), invalidated an Oregon initiative that prohibited a candidate's use of donations from out-of-district residents: "Measure 6 is not closely drawn to advance the goal of preventing corruption."

A contrary state-court decision, State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), pre-dated Citizens United and McCutcheon and was no longer reliable.

The corporate-contribution ban faced a similar problem. Citizens United v. FEC, 558 U.S. 310 (2010), invalidated federal restrictions on corporate independent expenditures and made clear that "the same rules of constitutional law would apply to individuals and corporations in the law of Free Speech under the First Amendment and elections." While Citizens United did not directly involve corporate donations to candidates, the AG concluded the doctrine pointed clearly against the proposed ban.

The AG concluded plainly: "no initiative prohibiting corporate donations to candidates for State office or restricting allowable donations to those from constituents within a district will withstand constitutional challenge. There does not seem to be any way to preserve the proposed initiative's goal in a constitutional manner."

Common questions

Q: Why can the federal government regulate Super PAC funding but Idaho cannot ban corporate candidate donations?

The opinion did not draw that distinction. Citizens United itself distinguished independent expenditures (cannot be limited) from contributions to a candidate (can be limited to address corruption). The 2015 AG opinion read the doctrine as flowing strongly enough that a flat corporate ban on donations to candidates would also fall, though the Supreme Court has not decided that exact issue.

Q: What's the difference between contributions and independent expenditures?

A contribution goes to a candidate's committee. An independent expenditure is spent by the donor directly (advertising, mailers) without coordination with the candidate. Independent expenditures get the most First Amendment protection; contributions can be regulated to prevent corruption.

Q: What is "quid pro quo corruption" in this context?

A direct exchange of campaign donations for political favors. The Supreme Court has narrowed the legitimate state interest in regulating campaign contributions to that specific concern, plus the appearance of it. Broader concerns (influence, access, the role of money in politics) are not constitutional bases for regulation.

Background and statutory framework

Idaho Code § 34-1809 governs initiative review. The Idaho Sunshine Law's contribution provisions are at Idaho Code § 67-6610 and § 67-6610A.

The federal First Amendment doctrine relevant here begins with Buckley v. Valeo, 424 U.S. 1 (1976), continues through Citizens United v. FEC, 558 U.S. 310 (2010), and McCutcheon v. FEC, 572 U.S. 185 (2014). The two Circuit-level constituent-only decisions (Landell and VanNatta) supplied direct precedent against the kind of restriction the initiative proposed.

Citations

Idaho Code:
- § 34-1809; § 34-1809(1)(a); § 34-1809(1)(c)
- § 67-6610; § 67-6610A

Federal Cases:
- Citizens United v. FEC, 558 U.S. 310 (2010)
- McCutcheon v. FEC, 572 U.S. 185 (2014)
- Landell v. Sorrell, 382 F.3d 91 (2d Cir. 2002)
- Randall v. Sorrell, 548 U.S. 230 (2006)
- VanNatta v. Keisling, 151 F.3d 1215 (9th Cir. 1998)

State Cases:
- State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C10202015.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN

October 20, 2015

The Honorable Lawerence Denney
Idaho Secretary of State
Statehouse
VIA HAND DELIVERY
RE:

Certificate of Review
Proposed Initiative Amending the Idaho Sunshine Act to Limit Campaign
Contributors to a State Office to Constituents of that Office

Dear Secretary of State Denney:
An initiative petition was filed with your office on September 28, 2015, and forwarded to
this office on the same day. Pursuant to Idaho Code § 34-1809, this office has reviewed the
petition and prepared the following advisory comments. Given the strict statutory timeframe
within which this office must review the petition, our review can only isolate areas of concern
and cannot provide in-depth analysis of each issue that may present problems. Further, under the
review statute, the Attorney General's recommendations are "advisory only." The petitioners are
free to "accept them in whole or in part." The opinions expressed in this review are only those
that may affect the legality of the initiative. This office offers no opinion with regard to the
policy issues raised by the proposed initiative nor the potential revenue impact to the state
budget.

BALLOT TITLE
Following the filing of the proposed initiative, this office will prepare short and long
ballot titles. The ballot titles should impartially and succinctly state the purpose of the measure
without being argumentative and without creating prejudice for or against the measure. While
our office prepares titles for the initiative, petitioners may submit proposed titles for
consideration. Any proposed titles should be consistent with the standard set forth above.

MATTERS OF SUBSTANTIVE IMPORT
The principal purpose of the proposed initiative is clearly stated in the first sentence of
the proposed law itself: To require any person who contributes to a candidate for office, to be a

P.O. Box 83720, Boise, Idaho 83720-001 O
Telephone: (208) 334-2400, FAX: (208) 854-8071
Located at 700 W. Jefferson Street, Suite 210

Secretary of State Denney
October 20, 2015
Page 2 of 5
constituent of that office, i.e., to live in the district (or in Idaho for statewide offices). The
proposed initiative would amend Idaho Code sections 67-6610 and 67-6610A to restrict
contributions from candidates to State offices to contributions from a constituent of that office. 1
Further, contributions from corporations to a "Legislative Authorized Candidate Committee" or
"State Authorized Candidate Committee" would not be permitted. (The quoted terms are used
but not defined in the proposed initiative.) The proposed initiative would not restrict
contributions to Political Action Committees or to State Party Committees if the contributions
were not earmarked for specific candidates.
First, reviewing the proposed initiative for form and style pursuant to Idaho Code § 341809(1 )( c), the amendments to sections 67-6610 and 67-661 OA are not shown in "legislative
format," i.e., they do not show which words in the current statutes would be stricken and do not
show which words not in the cmTent statutes would be inserted. This is the normal way in which
changes from existing statutes are shown by amending legislation. This office recommends that
the initiative should be revised to show changes from current sections of the Idaho Code by use
of legislative format. See, for example, the legislative format used in another proposed initiative
reviewed earlier this year: http://www.sos.idaho.gov/elect/inits/2016/init02.html. In addition,
the proposed initiative uses capitalized terms like "Legislative Authorized Candidate
Committee" or "State Authorized Candidate Committee" that are intended to have a specific
meaning, but are not defined in the law. This office recommends that these and other capitalized
terms contained in the proposed initiative that are not now found in Idaho law be defined in the
initiative.
Second, reviewing the proposed initiative for matters of substantive imp01i under Idaho
Code§ 34-1809(l)(a), the initiative is unconstitutional under the First Amendment. To begin, its
prohibition of corporate contributions to candidates is unconstitutional under the natural
extension of the holding in Citizens United v. Federal Election Com'n, 558 U.S. 310, 130 S. Ct.
876, 175 L.Ed.2d 753 (2010). Citizens United was a case involving a Federal law that prohibited
corporations and unions from making independent expenditures for electioneering
communications (broadcasts or wide deliveries of materials that mention a candidate by name
during the month or two before an election) or that advocate for the election or defeat of a
candidate for Federal office. For example, Citizens United said: "The First Amendment has its
fullest and most urgent application to speech uttered during a campaign for political office," 558
U.S. at 339; "Prohibited, too, are restrictions distinguishing among different speakers, allowing
speech by some but not others," id. at 340; and, "No sufficient governmental interest justifies
limits on the political speech of nonprofit or for-profit corporations," id. at 365.
Citizens United struck down a law limiting corporations' electioneering communications
or independent advocacy for or against Federal candidates as a violation of the First
Amendment's Free Speech Clause. It did not address the constitutionality of prohibiting
1

This means that contributors to a legislative campaign would have to live in that legislative district,
contributors to a district judge's campaign would have to live in that judicial district, and contributors to a campaign
for statewide office like Governor or Justice of the Supreme Comt would have to live in Idaho. The rest of this
review focuses on legislative candidates, but a similar analysis would apply for a candidate for district judge in a
judicial district or for a candidate for statewide office.

Secretary of State Denney
October 20, 2015
Page 3 of 5
corporate donations to a candidate's campaign. But it is clear from Citizens United that the same
rules of constitutional law would apply to individuals and corporations in the law of Free Speech
under the First Amendment and elections.
The rules of First Amendment Free Speech law for campaign contributions were
elaborated in Mccutcheon v. Federal Election Comm'n, 572 U.S . - , 134 S. Ct. 1434, 188
L.Ed.2d 468 (2014). McCutcheon involved a Federal statute that as practical matter, limited the
number of candidates for Federal office to whom a political donor could contribute the maximum
allowed contributions per candidate by the indirect means of an aggregate limit on total
donations to Federal candidates and political action committees (PACs). 134 S. Ct. at 14421444. This prohibition against giving the maximum contribution to as many candidates or PACs
as the donor wished was struck down as a violation of the donor's Free Speech rights to donate .
Among other things, the Comi said:
The right to pmiicipate in democracy through political contributions is
protected by the First Amendment, but that right is not absolute. Our cases have
held that Congress may regulate campaign contributions to protect against
conuption or the appearance of corruption. . . . At the same time, we have made
clear that Congress may not regulate contributions simply to reduce the amount
of money in politics, or to restrict the political participation of some in order to
enhance the relative influence of others.
134 S. Ct. at 1441 (emphasis added ; citations omitted). Thus, we may infer that it is
unconstitutional to limit persons to donating only within their own legislative district to enhance
the relative influence of those within the district compared to those without the district.
Any regulation must . . . target what we have called quid pro quo
conuption or its appearance . .. dollars for political favors .... Campaign finance
restrictions that pursue other objectives, we have explained, impermissibly inject
the Government into the debate over who should govern.
134 S. Ct. at 1441 (citations and internal punctuation omitted). Thus, we may infer that limiting
political donations to persons within a legislative district is unconstitutional.
The First Amendment is designed and intended to remove governmental
restraints from the arena of public discussion, putting the decision as to what
views shall be voiced largely into the hands of each of us, .. . in the belief that no
other approach would comport with the premise of individual dignity and choice
upon which our political system rests . ... [T]he First Amendment safeguards an
individual's right to participate in the public debate through political expression
and political association. . . . When an individual contributes money to a
candidate, he exercises both of tlwse rights: The contribution serves as a general
expression of supp01i for the candidate and his views and serves to affiliate a
person with a candidate.

Secretary of State Denney
October 20, 2015
Page 4of5

. . . Tlte Government may no more restrict how many candidates or
causes a donor may support titan it may tell a newspaper how many candidates
it may endorse.
. . . [Under the statute under review a] donor must limit the number of
candidates he supports, and may have to choose which of several policy concerns
he will advance-clear First Amendment harms ....
134 S. Ct. at 1448-1449 (emphasis added; citations and internal punctuation omitted). Thus, we
may again infer an unlimited First Amendment right to donate to any candidate .
. . . This Court has identified only one legitimate governmental interest for
restricting campaign finances: preventing corruption or the appearance of
corruption. . . . We have consistently rejected attempts to suppress campaign
speech based on other legislative objectives. No matter how desirable it may
seem, it is not an acceptable governmental objective to level the playing field, or
to level electoral opportunities, or to equalize the financial resources of
candidates. . . . The First Amendment prohibits such legislative attempts to finetune the electoral process, no matter how well intentioned.

Id. at -, 134 S. Ct. at 1450 (citations and internal punctuation omitted). Thus, we may infer that
limiting allowable donors to those who live in a paiiicular legislative district is unconstitutional
because it is not tailored to the issue of quid pro quo c01Tuption.
McCutcheon did not explicitly address the issue of whether contributions to candidates
can be limited in whole or in part to contributions from people in the candidate's constituency.
But decisions of two Federal Comis of Appeals have, and both have concluded that such
restrictions were unconstitutional.
In Landell v. Sorrell, 382 F.3d 91, 146 (2nd Cir. 2002), reversed on other grounds,
Randall v. Sorrell, 548 U.S. 230, 126 S. Ct. 2479, 165 L.Ed.2d 482 (2006), a Vermont
statute that limited out-of-state contributions to a candidate to 25% of total contributions
to the candidate was held unconstitutional. As the United States Supreme Comi said:
"The Act also limits the amount of contributions a candidate, political committee, or
political party can receive from out-of-state sources .... The lower courts held these outof-state contribution limits unconstitutional, and the parties do not challenge that
holding." Id. at 239.
In VanNatta v. Keisling, 151F.3d1215 (9th Cir. 1998), cert denied, 525 U.S. 1104, 119
S. Ct. 870, 142 L.Ed.2d 771 (1999), an Oregon initiative that prohibited a candidate's use
of donations from out-of-district residents was held unconstitutional: "Measure 6 is not
closely drawn to advance the goal of preventing corruption and under this analysis fails to
pass muster under the First Amendment." 151 F.3d at 1221.

Secretary of State Denney
October 20, 2015
Page 5 of 5
Contrary decisions like State v. Alaska Civil Libe1iies Union, 978 P.2d 597 (Alaska 1999), cert.
denied, 528 U.S . 1153 , 120 S. Ct. 1156, 145 L.Ed.2d 1069 (2000), pre-date Citizens United and
McCutcheon and would not seem to be consistent with them.
This constitutional analysis is not complete; further analysis would only identify more
First Amendment problems. Suffice it to say, no initiative prohibiting corporate donations to
candidates for State office or restricting allowable donations to those from constituents within a
district will withstand constitutional challenge. There does not seem to be any way to preserve
the proposed initiative's goal in a constitutional manner.

CERTIFICATION
I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style, and
matters of substantive import. The recommendations set f01ih above have been communicated to
the Petitioner via a copy of this Certification of Review, deposited in the U.S. Mail to Robert A.
Perry, 9215 N . Great Hall Drive, Hayden, Idaho 83835 .
Sincerely,

Attorney General

Analysis by:
Michael S. Gilmore
Deputy Attorney General