A Maricopa County Superior Court judge ruled this month that the state’s most fundamental campaign finance laws dealing with the registration of political committees and reporting of contributions and expenditures are unconstitutional.
The ruling won’t affect campaigns this election cycle, but it threatens to upend the state’s campaign finance system for future elections.
Although the case dealt with a series of television ads aired two years ago and questions about whether the spending constituted electioneering, Judge Crane McClennen found that the core laws that form Arizona’s campaign finance system are unconstitutional in all applications.
“It’s a bombshell ruling,” said Phoenix elections attorney Timothy La Sota.
Maricopa County Elections Director Karen Osborne said the ruling took her by surprise, and could have serious repercussions if appellate courts uphold it.
“It got my heart started,” she said. “Oh, my goodness! Everything we have, everything we do is based on those (laws that were ruled unconstitutional).”
The underlying case dates back to 2010, when a group known as the Committee for Justice and Fairness spent roughly $1.5 million on television ads criticizing Tom Horne for votes he made as a legislator and as a member of the Arizona State Board of Education.
Horne, then the superintendant of public instruction, was the Republican nominee for attorney general and was locked in a tight race with his Democratic opponent, Felecia Rotellini. The television ads, which aired in the final weeks of the campaign, accused Horne of voting against tougher penalties for statutory rape and voting to reinstate a teacher who had been caught viewing child pornography on a school computer.
The ad urged voters to call Horne’s office at the Arizona Department of Education and instructed them to “tell Tom Horne to protect children.”
Horne filed a complaint with state elections officials alleging CFJ, which was funded almost entirely by the Democratic Attorneys General Association, had illegally run ads advocating his defeat in the AG’s race without registering as a political committee in Arizona.
The Secretary of State’s Office found reasonable cause to believe CFJ had violated state law by not registering as a political committee, and it forwarded the matter to the Attorney General’s Office. Shortly after Horne won his election, he transferred the case to the Maricopa County Attorney’s Office.
In May 2011, the county attorney’s office ordered CFJ to register as a political committee and file campaign finance reports. The committee appealed that order. It argued at a hearing in August that the advertising was issue-oriented speech and not electioneering, and CFJ was thus not required to form a political committee. However, an administrative law judge issued a ruling supporting MCAO’s order requiring CFJ to register with elections officials.
McClennen’s ruling came in the appeal of that administrative decision.
During its appeal to the Superior Court, CFJ attorney Tom Irvine argued that U.S. Supreme Court decisions clearly define the standards for express advocacy, and make a distinction between those communications – which encourage a vote for or against a candidate – and electioneering, which is focused on issues related to the elections.
Irvine relied heavily on a 1975 U.S. Supreme Court ruling in Buckley v. Valeo, in which the court gave specific guidelines for words that determine whether a communication is express advocacy.
Irvine used that ruling, as well as recent Supreme Court rulings about campaign finance disclosures and limits in Wisconsin Right to Life v. FEC and Citizens United v. FEC, to bolster his argument that the “know-it-when-I-see-it analysis” of express advocacy in state law is unconstitutional.
Because the state has no law governing non-express-advocacy disclosure, the disclosure laws cannot be applied to groups like CFJ.
“Instead, Arizona has a burdensome statutory scheme that requires initial, multiple and continuous filings, restrictions on contributions, and large penalties for violations,” Irvine wrote in a court filing.
McClennen sided with Irvine, ruling both that the CFJ ads did not expressly advocate Horne’s defeat and the state’s campaign finance reporting laws are unconstitutional.
“This ruling is a First Amendment victory. It’s not necessary to register unless you use one of those ‘magic words’ (listed in the Buckley ruling),” Irvine told Arizona Capitol Times.
Deputy Secretary of State Jim Drake said his office “fundamentally disagrees” with the ruling, both as it relates to CFJ and to the underlying campaign finance laws, and will appeal it.
“That was a very expansive decision, given the fact that it was just reviewing an administrative decision,” he said.