June 20, 2018
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Federal judge hears arguments over constitutionality of Maine election law

By Scott Thistle, Sun Journal

PORTLAND, Maine — A federal judge Tuesday heard arguments from the state and from an attorney representing supporters of independent gubernatorial candidate Eliot Cutler over a complaint that Maine’s campaign finance laws are unconstitutional in how they limit the amount of money supporters of independent candidates can donate to campaigns.

Cutler is running against incumbent Republican Gov. Paul LePage and Democratic U.S. Rep. Mike Michaud.

In Maine, major-party candidates for governor are allowed to collect $1,500 from individuals for their primary contests and $1,500 for their general election contests for a total individual donation limit of $3,000.

The first $1,500, while meant to be spent on a primary campaign, can be rolled into general election campaign funds, especially when the candidates don’t have any primary challengers, as was the case for Maine’s Republican and Democratic candidates in this year’s gubernatorial election. State law also doesn’t require candidates to refund unspent primary campaign donations.

Jamie Kilbreth, the attorney representing Cutler’s supporters, said Maine’s law clearly was unfair. He also said the law was in conflict with several Supreme Court and federal circuit court decisions in other states, including one from Colorado earlier this year.

“You have to treat people the same,” Kilbreth told federal Judge D. Brock Hornby. “You can’t let some supporters contribute twice as much as others.”

Kilbreth said a 2008 Supreme Court ruling in Davis v. the Federal Elections Commission determined that having two different campaign finance systems for candidates running for the same seat is unconstitutional. In that case, the Supreme Court ruled that limits on campaign finance contributions needed to be applied equally, and any limits on donations needed to be narrowly focused to address specific governmental interests or concerns, such as preventing and avoiding political corruption.

“Having two different systems for candidates running for the same seat is unconstitutional, and that’s really what we have here,” Kilbreth said.

Kilbreth also said independent candidates were not at any advantage financially because they didn’t have a primary race.

Kilbreth dismissed the state’s argument that independent candidates, such as Cutler, have been able to raise and spend more money than the major-party candidates as proof they would not be impacted by the donation limitations.

“The main reason that has been true is because it’s necessary for the independent to engage in a lot of activity to be a viable candidate,” Kilbreth said. “And that’s equally as expensive as trying to win a primary ballot.”

In a relatively short proceeding, Hornby listened to and asked questions of Kilbreth and Maine Assistant Attorney General Phyllis Gardiner for about an hour Tuesday.

Gardiner argued that a decision made by the court 14 years ago supported the notion that primary elections and general elections were distinct and said Maine’s law wasn’t discriminating against supporters of independents simply because independents didn’t face primary elections in Maine.

Gardiner said the court previously ruled that “separate per-election contribution limits are ‘rational and supportable,’ because primary campaigns ordinarily can be expected to require separate and additional expenditures.”

She also suggested Cutler supporters were not having their First Amendment right of free speech squelched by candidate campaign donation limits because those same supporters easily could donate unlimited amounts — under state and federal law — to political action committees set up to support Cutler.

But Hornby did not appear to buy that logic, asking Gardiner, “But supporters of the Rs and Ds can do the same, right?”

Gardiner said if supporters of the Republican and Democratic candidates formed PACs, that would be correct.

“But the plaintiffs here supporting an independent candidate are saying, ‘You’re treating us differently,'” Hornby said. “‘We want to get our candidate elected just as the supporters of candidate Michaud do, just as the supporters of candidate LePage do. We are similarly situated.’ And you are saying?”

Gardiner said the state was arguing the supporters of the major party candidates are not “similarly situated.”

“We are talking about separate elections — the primary really is a separate election,” Gardiner said.

Even if major-party candidates are uncontested in a primary, they still must go through the process, she said.

“What is a contested election?” Gardiner asked. “It’s not defined in the statute. Is a contested (election) just an election when you have another name on the ballot?”

She also suggested a candidate on primary ballot may not even be trying to get elected.

“Who is to judge?” Gardiner asked. “Maybe they are a sham candidate, a placeholder. Who gets to decide whether a campaign is really contested or not?”

Hornby suggested the state was spinning the argument away from the supporters of the candidate and toward the candidate.

“But you are looking at the candidate,” Hornby said. “We are talking about the contributors.”

The candidates, Hornby said, “are not parties to this lawsuit. They might have arguments about how much they can raise or how much they can spend, but we are talking about how much can an individual contribute.”

Gardiner said the courts only have ruled that a supporter has the “right to associate with a candidate. And as a contributor, that right is satisfied when you contribute something. You don’t have a right to just give as much as you want.”

Hornby said he intended to issue a ruling on the complaint — which was filed in early July — in about a week.

Depending on his decision, the ruling could have financial implications for the gubernatorial campaigns this year.

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