Sharp questioning by the judge and an attorney in a lawsuit that seeks to strike down campaign contribution limits in Alaska damaged an analysis by an expert witness hired by the plaintiffs on Tuesday.
The flawed testimony from Clark Bensen, a consultant and a former director of political analysis for the Republican National Committee, came Tuesday on the second day of the trial, as the Republican plaintiffs wrapped up the bulk of their presentation of witnesses. Still to come for the plaintiffs is former assemblyman Bob Bell, who is expected to appear before U.S. District Judge Timothy Burgess next week.
Bensen's "error," as Bensen himself described it, involved a side issue in the lawsuit, filed in November by three individual supporters of Republican candidates and Alaska Republican Party District 18, said Kevin Clarkson, attorney for the plaintiffs.
The suit challenges Alaska's strict contribution limits in four areas, including the $500 annual maximum that donors can give to each candidate, set by Alaska voters in 2006.
Clarkson said Bensen's estimate of how much money might be lost by campaigns because of the state's contribution limits does not deal with the crucial matters spelled out in a 2006 U.S. Supreme Court decision that struck down low campaign contribution limits in Vermont, a case that provides a measuring stick for Alaska's contribution limits, said Kevin Clarkson, attorney for the plaintiffs.
The plaintiffs — Aaron Downing, Jim Crawford, David Thompson and Alaska Republican Party District 18 — argue that the contribution limits restricted their ability to donate to candidates and impacted their free-speech rights, an argument that echoes past Supreme Court decisions that have loosened campaign contribution and spending limits for the nation.
Margaret Paton-Walsh, assistant attorney general for the state, said Bensen presented inflated numbers on Monday of how much money campaigns in the state are losing because the contribution limits are not set at $1,000, as they were before 2006.
But even those "exaggerated" numbers show that the money that is lost to campaigns in Alaska because of its $500 individual contribution limit is much smaller than the amount that made the court "anxious" in the Vermont case, she said.
Clarkson said the loss of potential campaign money in Vermont when contribution limits were lowered there after the 1998 election was an important issue raised in the 2006 Supreme Court decision. That decision, written by Justice Stephen Breyer, noted the high amounts of lost campaign money using data that was collected by Bensen.
But Clarkson said it's not "crucial." Far more important are "danger signs" spelled out in that decision that address whether a state has exceptionally low limits. By comparison to past contribution limits addressed in past Supreme Court cases, and in state comparisons, Alaska's limits are extremely low, Clarkson said.
A second expert witness for the plaintiffs who appeared Tuesday, Michael Pauley, a political consultant for conservative causes in Alaska, said Alaska has the nation's most restrictive campaign contribution limits for statewide offices, such as governor. The limits for legislative offices are among the five lowest, he said.
There's also the key question, Clarkson said, of whether a state's campaign limits allow challengers to run effective campaigns, an issue that takes into account unique characteristics in each state.
Pauley testified that the state's limits give incumbents a "tremendous advantage" and that at least 95 percent of incumbents in Alaska win races.
Bensen, a Vermont resident who owns consulting firm Polidata, said in an interview outside the courtroom on Tuesday that he thought his bad performance on the witness stand hurt Clarkson's argument.
Bensen's troubles began on Monday afternoon, when Bensen began presenting his testimony. Judge Burgess, an appointee of George W. Bush, challenged Bensen's hypothesis that 75 percent of the most active donors in competitive races who max out their annual contribution at $500 would also give $1,000 if the limits had been raised.
Burgess wanted to know where that percent from. Did it come from somewhere factual, such as a survey?
Bensen said it did not, and was just his "best estimate" of what might happen.
On Monday night, after the courtroom shut down for the day, Bensen reworked the numbers. He returned to court on Tuesday with an expanded analysis and one based on historical data rather than a hypothesis, using the election after 2006, when voters lowered the rates from $1,000 to $500.
The new analysis showed that his original analysis had "overestimated" lost income by a factor of two, Bensen said. That meant the losses in Alaska from low contribution limits were half of what he originally estimated.
He tried to present that new analysis to the court on Tuesday, in the second part of his testimony, but Burgess wouldn't allow it.
"This was no secret what everyone would testify about all along," said a frustrated Burgess, hearing the case without a jury and referring in part to trial strategies that each side filed before the trial began. "I am concerned he is presenting a new analysis in response to concerns raised in his testimony yesterday."
Bensen said afterward that the new data, had he been able to present it, would have favored the state, since it showed that his original estimate was too high.
Asked why he didn't initially analyze historical data, and instead relied on an hypothetical analysis, Bensen said he didn't think of it.
"It was sort of an oversight and sort of an error," he said. "I did a half-assed job."