Alaska attorney general says law seating campaign finance commission is likely unconstitutional

A state legal opinion says the law that seats Alaska's campaign finance watchdog is very likely unconstitutional, and the state has been saying so for 46 years without changing the statute.

Acting Attorney General Cori Mills signed the 19-page formal opinion on Aug. 14, addressed to Governor Michael J. Dunleavy, who requested it. "Statutes requiring the governor to choose board and commission appointees from a nomination list provided by a private entity are very likely unconstitutional, unless the board or commission is purely advisory in nature," the opinion says. The opinion does not touch statutes that merely require the governor to consider a list, such as appointments to the Board of Education and Early Development, and it does not touch appointments made by governmental or quasi-governmental bodies.

Eight boards and commissions are named. The Alaska Public Offices Commission regulates campaign finance and lobbying. Its enabling law requires the governor to appoint two members from each of the two parties with the most registered voters, chosen from lists of four names submitted by each party's central committee, subject to legislative confirmation.

A 1980 attorney general opinion on the same appointment process, quoted in the new one, found the requirement that the governor limit his choice to party nominees "clearly and unduly interferes with his power of appointment under section 26." The statute is unchanged and the commission is still seated under it.

The reasoning runs through Article III, section 16, making the governor responsible for faithful execution of the laws, and section 26, which vests board appointments in the governor subject to confirmation by a majority of the Alaska State Legislature in joint session. The department's line of advice traces back to a 1963 Legislative Council report and opinions in 1979, 1980 and 1981, plus the Alaska Supreme Court's 1976 ruling in Bradner v. Hammond that appointing executive officers is an executive function. The state made this same argument in a 2006 superior court case, NEA v. Murkowski, lost, and did not appeal, the opinion says. It calls superior court rulings non-binding and says the Supreme Court has not ruled on the precise question.

The other named bodies include the Fire Standards Council, which adopts regulations for the training, performance and certification of fire services personnel, and the Professional Teaching Practices Commission, which can suspend or revoke a teaching certificate. The list also includes the Alaska Retirement Management Board, the Workforce Investment Board, the Historical Commission, the Criminal Justice Data Analysis Commission and the Wood-Tikchik State Park Management Council.

Neither the opinion nor the department's announcement says whether sitting commissioners remain validly in office, or whether the administration will seek statutory changes. The department's release says the governor may still take names from private lists as a courtesy, but "the law cannot compel the governor to do so." The Alaska Public Offices Commission's next public meeting is scheduled for Aug. 26. Both documents come from the Department of Law; no opposing legal view appears in them.