The Alaska Supreme Court’s big warning to nonprofits to watch what they say

By SUZANNE DOWNING

Alaska’s Supreme Court handed down a major decision last week that should make every nonprofit organization in the state, from policy think tanks to advocacy coalitions to nonprofit newsrooms, sit up straight. If they have a social media presence, a blog, or a website where they advocate for issues, they may be running afoul of the Alaska Public Offices Commission election regulations.

The case involved Alaska Policy Forum, a conservative nonprofit that published materials on its blog criticizing ranked-choice voting in the run-up to the 2020 election, when Ballot Measure 2 was first on the ballot.

The lower court said APF crossed the line into campaign advocacy and should have registered, reported its spending, and included “paid for by” disclosures as an “independent expenditure” group.

The Alaska Supreme Court has now agreed with the lower court decision.

And while the decision is being framed as a victory for transparency, it raises serious First Amendment questions about where “public education” ends and regulated political speech begins. That line just got a lot blurrier.

The Court’s message was unmistakable: Nonprofits cannot avoid APOC  rules and regs simply by calling their messaging “education.”

This is going to get awkward. If your publication, video, press release, or blog post is, in the Court’s words, “susceptible of no other reasonable interpretation” than urging voters to support or oppose a ballot measure, then Alaska law treats now it as campaign-related speech.

We’re looking at you, 907 Initiative and The Alaska Center (for the Environment). And you, Salmon State.

The ruling is a major shift in how nonprofits must think about ballot-year communications.

It means the state is not just regulating campaign ads with obvious slogans. It is regulating the broader ecosystem of persuasion around ideas, ballot propositions, even when the speaker insists they are only informing the public.

We’ll get to political columnists in a bit. But first, let’s review this quote from the introduction of the opinion:

“The effective functioning of our democratic form of government is premised on an informed electorate. When citizens vote on the basis of misinformation, or a lack of relevant information, the decision-making process on which our government
ultimately rests suffers to that extent.”

“To promote an informed electorate, Alaska law requires public reporting of expenditures made for the purpose of influencing the outcome of a ballot proposition, through which the voters directly exercise legislative power. Alaska law also requires that advertisements and announcements pertaining to ballot propositions state who paid for the communication. Voters can use that information to evaluate the messages they hear.”

One of the most striking parts of the opinion is the Court’s acknowledgment that, in ballot measure elections, the traditional distinction between “issue advocacy” and “express advocacy” often collapses.

In candidate elections, you can criticize a policy without necessarily telling people how to vote. But with ballot measures, the “issue” is the vote.

If you are telling Alaskans that ranked-choice voting “has no place in Alaska,” and ranked-choice voting is literally on the ballot in November, the Court says that’s not merely  commentary any longer; that’s an appeal for an electoral outcome.

The Court even cited federal precedent suggesting that, for ballot measures, “issue advocacy and express advocacy are arguably one and the same.” That should concern anyone who values robust public debate.

But what about the “magic word” standard?

For years, campaign law has often relied on so-called “magic words,” phrases like “vote for,” “vote against,” “defeat,” or “reject.”

The Alaska Supreme Court made clear that those magic words are not actually required. You can become subject to APOC rules just by saying, “open primaries are nuts.”

If the electoral message is clear from context, timing, and content, APOC can treat it as regulated advocacy.

So a nonprofit doesn’t have to say “Vote No on 2” for APOC to decide that’s what it meant. That is a powerful enforcement tool, and potentially a chilling one.

The Court leaned heavily on Citizens United and other federal cases to say disclosure laws are not censorship. They do not ban speech. They require transparency.

And the Court held that disclosure requirements are constitutionally permissible even when spending is relatively modest — in this case, roughly $643 in staff time.

The Court rejected the idea that small-dollar spending is automatically exempt.

That matters because modern advocacy is cheap. A video can go viral for the cost of a college intern’s afternoon. A blog post can reach thousands with almost no overhead. This one will reach thousands, for instance.

The Court’s view is that voters still have a right to know who is behind it.

But the First Amendment question remains: At what point does “transparency” become a burden that discourages speech?

Here’s the question that can’t be avoided: Alaska has a growing world of nonprofit journalism and advocacy organizations, many of them openly progressive, many of them deeply involved in ballot-year messaging.

If they publish “explainers” or “analysis” that seem to push voters toward a Yes or No outcome on a ballot proposition, could they face APOC complaints too? What about editorials that persuade for a candidate or ballot measure, when the platform is owned by a nonprofit? With a fragmented media, now nearly all digital, what is even the definition of a news organization, when you have news groups like The Alaska Beacon and the Juneau Independent operating as nonprofits?

The standard set by the court is now both content and timing of speech. The decision can be used for enforcement against just about anyone, including columnists.

And let’s remember, in Alaska politics, these APOC complaints are usually filed strategically. The complaints themselves are often a form of campaigning, intended to sap the opposition of its ability to stay on mission.

The danger is that APOC becomes a weapon of paperwork, where advocacy groups spend more time hiring lawyers defending their right to speak freely. In a sense, we’re already there.

At this point, Alaska Policy Forum’s First Amendment challenge has been rebuked, at least in Alaska state courts. The Alaska Supreme Court has ruled directly that Alaska’s reporting and disclosure laws survive “exacting scrutiny.” That means APF’s constitutional runway might take a turn to the next place: the US Supreme Court.

The Alaska Supreme Court, although it raised First Amendment issues, doesn’t think APF can take it to the federal courts: “And we conclude that the First Amendment challenges to these laws are unavailing.”

We’ll see. APF doesn’t have a lot of funds and it would need a major legal entity like the Pacific Legal Foundation to carry the case forward. In the meantime, the political and practical implications are just opening. The next time a nonprofit claims it is “only educating the public,” APOC may find a way to call it electioneering. Tread carefully.

Here’s the ruling:

APF & AK SUpreme Ct decision 13 feb 2026

Suzanne Downing is founder and editor of The Alaska Story and is a longtime Alaskan.