A long-awaited opinion by the Arizona Attorney General’s Office reaffirmed state election officials’ opinion that the committee opposing the recall effort against Senate President Russell Pearce cannot accept corporate contributions.
The July 7 opinion, written by Solicitor General David Cole, said the committee cannot accept contributions from corporations or labor unions because the committee has coordinated with Pearce. But the opinion said a committee that doesn’t coordinate with a candidate – such as the committee that organized the recall campaign – can accept those contributions.
Cole determined Arizona law prohibits corporate contributions to recall committees, but that the law could not be enforced if the committee had not coordinated with a candidate. The opinion stemmed from the U.S. Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission, in which the high court said that corporations and labor unions are allowed to make independent expenditures to influence elections.
“Under current law, corporations and labor unions may not contribute to recall committees. It would, however, be contrary to the United States Supreme Court’s Citizens United decision to enforce this prohibition if the corporation or labor union is contribution to a recall committee that has not coordinated with a potential candidate,” Cole wrote.
Lisa Hauser, an attorney for Citizens Who Oppose the Pearce Recall, said the opinion was unfair to the committee working to oppose the recall.
“It potentially creates an absolutely lopsided system,” Hauser said. “The people who are pro-recall, there’s no one for them to even coordinate with.… The only side that has a prospective candidate even is the anti-recall side.”
However, even if Cole’s opinion said it could accept corporate contributions, it would be too late for the pro-Pearce campaign to do much with it. The Arizona Secretary of State’s Office today verified that Citizens for a Better Arizona had collected enough signatures to force a recall election, and the pro-Pearce campaign has only 10 days to challenge the signature petitions in court. After that, the committees will be governed by the laws that regulate candidate campaigns, including a ban on corporate and union contributions.
“We’re kind of far down the road. Everyone really took their sweet time getting around to it,” Hauser said.
The Goldwater Institute, which wrote a letter to Cole, Secretary of State Ken Bennett and Attorney General Tom Horne asking them to not enforce the “unconstitutional” prohibition on corporate money to the anti-recall committee, declared the opinion to be a “partial victory.” Goldwater Institute attorney Nick Dranias said Cole didn’t explicitly say that the state could enforce the ban, which he interpreted as an indication that corporate contributions may be permitted.
The opinion was unfair, Dranias said, because it gives a competitive advantage to the side that can accept corporate contributions. He also said it would have a chilling effect on free speech because a corporation may have no way of know whether a committee it contributed to was coordinating with a candidate.
“I am absolutely convinced no one will enforce this law,” Dranias said.
Dranias said the ban is unconstitutional under the Citizens United ruling. But that ruling only applied to independent expenditure committees – which are barred from coordinating with candidates – not direct contributions to candidates.
“I view this opinion as sort of threading a needle here between a body slam on the secretary of state and doing what Citizens United absolutely does require the (state) to do, which is not enforce these bans when the recall committees are analogous to independent expenditure committees,” he said.
Dranias said he expects the high court to ultimately strike down the ban on direct corporate contributions.
Cole’s opinion may have opened the door for corporate and union contributions to the anti-Pearce committee, but Co-chair Randy Parraz said the committee had not accepted any corporate or union general fund money. He wouldn’t comment on whether the committee had accepted union PAC money, which is permitted under state law.
Last month, Pearce asked Attorney General Tom Horne to issue an opinion on the matter after the Secretary of State’s Office said state law does not allow recall committees to accept money from corporations or labor unions. Pearce made the request on behalf of Citizens Who Oppose the Pearce Recall, a committee formed to fight the recall.
Horne recused himself from issuing the opinion and authorized Cole to do so instead.