In a ruling that could chill the ability of Alaska nonprofits to freely educate the public and argue for policies that they believe best serve the state, the Alaska Supreme Court issued a Feb. 13 opinion claiming that Alaska Policy Forum (APF) broke campaign finance laws in opposing the 2020 ranked-choice voting ballot measure.
APF was represented by The Institute for Free Speech (IFS), a national legal group that promotes and defends First Amendment rights to freely speak, assemble, publish, and petition the government through strategic litigation, communication, activism, training, research, and education.
The case in question began in 2020 when Alaska Policy Forum began critically examining the merits of ranked-choice voting, determining what effects it has had elsewhere and communicating its findings to the public.
The Institute for Free Speech argued that the 2020 complaint should have been dismissed since none of APF’s communications even mentioned Ballot Measure 2.
APF is a nonpartisan, conservative-leaning nonprofit think tank whose mission is to “empower and educate Alaskans and policymakers by promoting policies that grow freedom for all.”
With regard to ranked-choice voting, APF authored a report on the controversial voting system and issued a press release to promote its findings. APF’s website also published content from other people and organizations who shared their views with regard to the harms associated with ranked-choice voting. This included a YouTube video and an op-ed article.
Ranked-choice supporters then filed a complaint with the Alaska Public Offices Commission (APOC), which enforces campaign finance laws, alleging that APF’s communications were illegal advocacy against Ballot Measure 2, which sought to enact ranked-choice voting.
The Institute for Free Speech argued that the 2020 complaint should have been dismissed since none of APF’s communications even mentioned Ballot Measure 2, most made no reference to the upcoming election at all, and several were simply re-posted content aimed at a national audience.
Regardless, APOC ruled that Alaska Policy Forum’s educational materials had run afoul of state campaign disclosure laws and it initially ordered the think tank to publicly expose its top donors, file reports with the state, and include campaign-style disclaimers on its communications, just like a political action committee.
APF stressed the burdens that APOC has placed on its mission, especially with regards to potentially compelling disclosure of principal officers and top contributors, which could chill free speech.
“Making matters worse, Alaska’s campaign finance laws have no monetary thresholds to protect groups that engage in small amounts of spending, nor do they have any donor reporting thresholds to shield small donors,” IFS noted in background summary of the case. “A group that spends even one dollar on regulated advocacy must expose all of its donors, even those who give just one penny. The state’s laws are among the worst in the nation for political speech.”
The legal group maintained that APOC’s ruling was a violation of First Amendment protections and odds with U.S. Supreme Court precedent that communications like APF’s can only be regulated as “campaign advocacy” if they are susceptible to no other reasonable interpretation than as “a call to vote.”
“APF’s speech about issues, without reference to the measure or the upcoming election, does not come close to meeting that test,” IFS maintained. “Think tanks have a First Amendment right to educate the public about their views and advocate for the policies they believe are best. States cannot use campaign finance laws to restrict this advocacy. Yet a recent ruling by the Alaska Public Offices Commission (APOC) does exactly that.
The Alaska Supreme Court disagreed and, in issuing its Feb. 13 opinion, affirmed a lower court decision that APF violated Alaska’s campaign finance laws by issuing communications aimed at influencing the ballot proposition, while failing to register as a group, report expenditures, and include “paid for by” disclosures on materials criticizing ranked-choice voting.
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While APOC claims to have found violations, it waived all penalties due to what it considered “limited harm.” Nevertheless, the Alaska Supreme Court ruling could set a chilling precedent in future APOC finding in which the regulatory body decides to actively impose substantial fines and penalties.
During the case, APF stressed the burdens that APOC has placed on its mission, especially with regards to potentially compelling disclosure of principal officers and top contributors, which could chill free speech.
It also maintained that its materials constituted classic “issue advocacy,” focused solely on ranked-choice voting, which was just one aspect of the multi-part Ballot Measure 2. The measure also dealt with elements like open primaries, of which APF never discussed. APF claims its video, blog posts and a press release highlighting concerns about voter disenfranchisement and democratic threats, which were framed as educational discussions rather than calls to defeat a specific ballot measure.
