A judge’s decision in a federal lawsuit in which supporters of independent candidate for governor Eliot Cutler are challenging campaign contribution limits could hinge on whether an uncontested primary constitutes an election.
Attorneys for the four plaintiffs – Amy Woodhouse, Richard Tobey Scott, William Hastings and J. Thomas Franklin – and staff members from the Maine Attorney General’s Office made their respective cases Tuesday before U.S. District Judge D. Brock Hornby. After the 45-minute hearing in Portland, Hornby said he will issue a written decision by next week.
The lawsuit, filed in early July, challenges a state law that allows major-party candidates to accept $1,500 contributions from individuals for both the June primary and for the general election, but doesn’t restrict when that money must be spent.
Democrat Mike Michaud and Republican Gov. Paul LePage have been allowed to collect as much as $3,000 from individual donors, even though neither one had a primary challenge. Cutler can collect a maximum of only $1,500, which his supporters claim in the lawsuit is unconstitutional.
If Hornby rules in favor of the plaintiffs on the request for a preliminary injunction, the Cutler campaign could theoretically begin collecting as much as $3,000 from individuals. The Cutler campaign estimates that it could collect “a few hundred thousand” dollars more from donors if the limit is changed.
James Kilbreth, an attorney for the plaintiffs, said he doesn’t think Cutler supporters should be treated differently simply because their candidate is unenrolled.
“In Maine, those who support major-party candidates are permitted to donate twice as much, and thus speak twice as loudly, as those who support independent candidates,” the plaintiffs’ attorneys wrote in a court filing. “To put it another way, the state of Maine has chosen to allow the supporters of major-party candidates to have twice the impact on the 2014 election than supporters of independent candidates.”
This provision of campaign finance law has never been challenged in Maine and, as long as the law has been on the books, there has never been an uncontested gubernatorial primary.
But attorneys for the plaintiffs pointed to a recent precedent in another state.
In January, the 10th U.S. Circuit Court of Appeals struck down a Colorado law that allows Democratic and Republican candidates to collect $400 per donor but limits unenrolled candidates to $200. If that decision is challenged by the state of Colorado, it likely will end up before the U.S. Supreme Court.
Assistant Attorney General Phyllis Gardiner, arguing for the Maine Commission on Governmental Ethics and Election Practices, said she doesn’t think the Colorado case and the Maine case are the same. She said citizens have every right to support a candidate under the confines of the law, and a primary election, even if it is not contested, is still an election.
“It’s not the job of the federal courts to fine-tune (contribution) limits,” she said.
Cutler, who has been running third in all public opinion polls behind Michaud and LePage, has been talking about the fundraising disparity for several months.
The independent has kept pace with fundraising – in fact, he has raised more than his opponents, but only because he has given nearly $1 million of his own money.
According to the most recent campaign filings, covering donations through July 15, Cutler had raised slightly more than $2 million, to just under $2 million for Michaud and about $1.3 million for LePage.
Cutler has dramatically outspent the major-party candidates. Through July 15, he had spent $1.5 million, Michaud had spent $916,000 and LePage had spent just $326,700,
Gardiner brought up Cutler’s spending in court as a way to say that campaigns still have a reason to spend money before a primary, even if they don’t have a primary challenge.