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

Cutler is in a race against Republican Gov. Paul LePage and 2nd District Congressman Mike Michaud, D-Maine.

In Maine, Republican and Democratic 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 over 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 race for governor. 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 was clearly unfair. He also said it was in conflict with several U.S. 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 U.S. District Court Judge D. Brock Hornby. “You can’t let some supporters contribute twice as much as others.”

Kilbreth said a 2008 Supreme Court decision in Davis vs. the Federal Elections Commission ruled 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 had to be applied equally and that any limits on donations had to be narrowly focused to address specific governmental interests or concerns like 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 that independent candidates were not at any financial advantage because they didn’t have a primary race.

Kilbreth said the state’s argument that independent candidates, such as Cutler, have been able to raise and spend more money than the party candidates is proof they are not impacted by the donation limits was off.

“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.”

For about an hour Tuesday, Hornby listened to and asked questions of Kilbreth and Maine Assistant Attorney General Phyllis Gardiner.

 Gardiner argued a decision by the court 14 years ago supported the notion that primary and general elections were distinct and Maine’s law was not 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 ‘rationale and supportable’ because primary campaigns ordinarily can be expected to require separate and additional expenditures.”

She also suggested that Cutler supporters were not having their First Amendment free speech squelched by candidate campaign donation limits because those same supporters could easily 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 that was correct, if supporters of the Republican and Democratic candidates had formed political action committees.

“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,” she said.

She said the argument that because LePage and Michaud faced no primary challengers in June didn’t necessarily mean those elections were uncontested. 

“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 a 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?”

But 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 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 agreed that was right but also said, “There is no fundamental right to contribute as much as you would like to a candidate.”

Gardiner said the courts have only 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.

sthistle@sunjournal.com