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Republican Corporation Commission candidates violated rules, commission finds

Republican candidates for the Arizona Corporation Commission Susan Bitter Smith, Bob Burns and Bob Stump agree to return some Clean Elections funding

Republican candidates for the Arizona Corporation Commission (from left) Susan Bitter Smith, Bob Burns and Bob Stump (Photos by Ryan Cook/RJ Cook Photography)

Republican candidates for the Arizona Corporation Commission violated the rules by using hundreds of thousands of dollars that were meant to be spent in the primary to go after their Democratic general election opponents, the agency that runs the state’s public finance system agreed today.

Candidates who get public financing are barred from using primary funds for general election purposes.

As a penalty, the Citizens Clean Elections Commission required Bob Stump, Susan Bitter Smith and Bob Burns to pay back a little less than $30,000 — or roughly about $10,000 from each.

The commission received the checks from the candidates this morning, said Todd Lang, the agency’s executive director who negotiated the payment amount with the Republicans.

Corporation Commission candidates each get roughly $92,000 for the primary and about $138,000 for the general election.

Burns, Bitter Smith and Stump spent a total of $230,000 during the primary on two mailers that targeted Democrats.

According to the Clean Elections rules, every penny that candidates get for the primary must only be used for the primary. And under the law, they’re required to return money that was unspent at the end of the primary period.

Under this interpretation, the Republican candidates could not spend the $230,000 to advocate for their general election opponents’ defeat.

The commission’s ruling is a victory for the Arizona Democratic Party, which filed the complaint against the GOP candidates, alleging they violated the law against mixing funds by distributing campaign mailers that attacked Democrats Paul Newman, Sandra Kennedy and Marcia Busching.

The Republicans disputed the claim, but Lang said the mailers unambiguously advocated for the Democrats’ defeat.

Neither the Democratic nor Republican candidates faced challengers in their parties’ primary.

It’s not the first time that the commission had caught publicly-financed candidates using primary funds for general election purposes. Those candidates were also required to pay back a portion of the money they spent.

In a meeting this morning, the Clean Elections commissioners unanimously agreed that the three candidates violated the rules, but they were divided when it came to what remedy is most appropriate.

Commissioners Louis Hoffman and Thomas Koesler abstained while three others — Lori Daniels, Timothy Reckart and Jeffrey Fairman — voted “yes” on Lang’s $30,000 payback recommendation.

At one point during the meeting, Hoffman remarked, “I feel pretty confident if I had been negotiating this I might have been a little tougher.”

But he added it’s tough to criticize a negotiated agreement and said he recognized the difficulties of coming up with a remedy before having heard what commissioners have to say.

Koesler, meanwhile, said the commission should send a stronger message and suggested requiring Bitter Smith and the others to pay back $45,000, arguing he felt there was just a “little more harm” done to the Democratic candidates.

During the meeting, Democrats asked that the Republicans be required to pay every penny that was spent on the campaign mailers at issue. They argued that the primary spending gave Republicans a “head start” — akin to positioning an Olympian 20 meters up from the starting line.

“Don’t be so light on these guys,” Newman pleaded, noting that participating candidates are told that they can’t spend primary funds for general election purposes.

Newman even suggested that the money returned to the commission be given to the Democratic candidates.

“The solar team has been harmed and has become a victim of their malfeasance,” he said.

Lee Miller, who represents the Republican candidates, made a compelling argument that for all intents and purposes the Corporation Commission race has been a general elections contest all along.

All candidates for Corporation Commission faced no primary challengers in their respective parties, he noted, adding that the logical consequence of Lang’s argument is that candidates can’t even talk about their opponents from another party if asked by voters during the primary.

But Lang disputed that interpretation, saying the rules don’t bar candidates from contrasting their candidacies from those of the other party—only from using primary resources for general election purposes.

Miller argued that the purpose of the Clean Elections law is to facilitate a robust debate and to increase participation, and the position taken by Lang has the effect of limiting debate until the end of the primary period.

In response, Daniels said while she doesn’t necessarily disagree that it might be a violation of free speech rights, the prohibition is on the books now and it has not been constitutionally challenged.

“My guess is we probably wouldn’t change that rule without somebody taking us to court and suing us,” she said.

During the hearing, Lang also defended the complex formula he used to come up with $30,000.

And near the end of the meeting, Miller urged the commission to accept the compromise Lang had reached with the Republican candidates.

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