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Sailing away? Arizona facing decision to save or do away with Clean Elections

As fewer candidates choose to run for office using Arizona’s Clean Elections system, lawmakers are sensing the system’s vulnerability and are preparing to deal a death blow.

Clean Elections has faced endless attacks in its tumultuous 15-year history in Arizona, but Executive Director Todd Lang said this time is different.

Threats stemming from the Legislature this year are multi-faceted and include an attempt to neuter the program with a ballot measure asking voters to shift funding from Clean Elections into the state’s education system.

A pair of bills that would dramatically increase campaign contribution limits for privately funded candidates have the potential to dwarf the fundraising power of publicly funded candidates and push Clean Elections further down the road to irrelevancy, the system’s advocates warn.

Raising contribution limits would weaken the value of the dollars Clean Elections provides to candidates who run with public money, Lang testified last month in the House Judiciary Committee. “Traditional candidates have a huge advantage under this system, and you have a huge Prop. 105 problem. It completely undermines the purpose of the act and it undermines the opportunity for people to participate in the system.”

The bills and resolutions making their way through the Capitol still pale in comparison to the biggest blow to Clean Elections — a U.S. Supreme Court decision striking down the system’s matching funds provision, which offered publicly funded candidates a way of keeping pace with well-funded traditional candidates funneling thousands of dollars into campaigns.

The court’s decision changed the landscape of Arizona elections, and Clean Elections supporters can no longer argue for it to be separate but equal, according to critics of the system.

“Once the Supreme Court struck down matching funds, they were never going to have an ability for them to have the same amount of money,” said Rep. J.D. Mesnard, R-Chandler. “It’s a violation of free speech. We can’t look at them as equal; we have to look at them as different alternatives.”

A resolution to repeal

Rep. Paul Boyer’s HCR2026 wouldn’t repeal Clean Elections outright, but it does attempt to leave the system a shell of its former self by asking voters to strip the Clean Elections Commission of all funds and incoming dollars. Those funds would instead be directed to the Department of Education to be distributed on a per pupil basis to school districts and charter schools to fund school maintenance and operations.

The system has been subject to rampant abuse, such as politicians using money to pay for “campaign events” at nightclubs in Scottsdale, Boyer said.

Boyer, R-Phoenix, said the Clean Elections system was falsely sold to people under a suggestive and congenial title, and he would rather see the program called a different name: “public dollars for politicians,” he said.

“Let’s give the voters a chance to decide if it has lived up to the ‘clean’ portion of the name,” Boyer said.

HCR2026 was approved by the House in a close 31-27 vote late Thursday afternoon. Rep. Carl Seel, R-Phoenix, who’s always run Clean Elections, voted in favor of the resolution. Seel said he was philosophically opposed to the Clean Elections system, and promised voters he’d help repeal it if elected.

Democrats bitterly oppose the measure, and several Republicans also have their concerns — Rep. Doris Goodale, chair of the House Education Committee, said during a Republican caucus debate that she thinks Boyer’s measure is dishonest. If he wants to repeal Clean Elections, he should state so clearly, said Goodale, R-Kingman.

An outright repeal of the program wouldn’t stand a chance of being approved by voters, but Lang worries that by phrasing repeal as an either-or question, voters might be more inclined to vote for funding education.

“It’s the same as if they gave us a choice between Clean Elections, or bunnies and rainbows,” Lang said.

Boyer’s resolution isn’t the first attempt to block, repeal or de-fund Clean Elections — those efforts have been around as long as the system has been in place, but none have succeeded.

A 1998 lawsuit to keep Proposition 120, a measure to create the Clean Elections system, off the ballot lost unanimously in the Arizona Supreme Court.

In 2004, Proposition 106 — the “No Taxpayer Money for Politicians” initiative — would have prohibited any form of public funding for candidates — including a publicly funded elections program in Tucson — and reverted all Clean Elections dollars to the state’s general fund. But the Arizona Supreme Court upheld a lower court ruling to remove the measure from the ballot because it violated the single subject rule of the Arizona Constitution.

Article 21 Section 1 states that “proposed amendments (to the Constitution) shall be submitted in such a manner that the electors may vote for or against such proposed amendment separately.”

A follow-up resolution that banned Clean Elections but exempted Tucson’s program passed the Legislature in 2011, but was again bounced from the ballot by a Superior Court judge for violating the Arizona Constitution’s single subject clause.

A 2012 measure to repeal Clean Elections passed the state Senate, but the commission struck a deal with the sponsor, Sen. John McComish, R-Phoenix. The Arizona Chamber of Commerce and Industry, which had pledged to fund efforts to repeal Clean Elections, called a truce.

Mesnard, a staunch opponent of Clean Elections, said he’s concerned Boyer’s resolution would face the same fate as past repeal efforts.  Since the law removes funding from Clean Elections and shifts it to education, it too could violate the Constitution’s single use clause, Mesnard said.

However, Mesnard defended Boyer’s resolution as an honest measure, or “at least as honest as Clean Elections was in the first place,” he said.

“When any initiative is put on the ballot, there’s always strategy — how do we sell it,” said Mesnard. “That’s why they called it ‘Clean Elections.’ I mean, who doesn’t want clean elections? There’s a lot in a title.”

Campaign contribution limits

Clean elections officials and advocates warn that Mesnard’s HB2593 — one of two campaign finance bills already approved by the House — would discourage candidates from running clean by raising private campaign contribution limits.

HB2593 would increase the amounts individuals and political action committees can contribute to candidates from $440 to $2,000. Super PACs would be allowed to contribute as much as $4,000. The bill would also eliminate aggregate contribution limits that now apply to individual donors and PACs.

Technically, the bill would change the law to allow contributions of $2,500 for PACs and individuals and $5,000 for Super PACs. However, a provision in the Clean Elections Act sets the actual limits at 80 percent of the dollar amount laid out in statute.

“A lot of incumbents who would run clean aren’t, because it’s not enough money and they can get outspent,” Lang said. “And if you increase traditional campaign limits by that much and do nothing for Clean Elections, you’re making it very hard to run clean.”

A measure sponsored by Rep. Eddie Farnsworth, R-Gilbert, would bifurcate the primary and general election into separate elections for campaign finance purposes, allowing candidates to raise the limit on contributions from political committees in each time frame.

His HB2306 would effectively double the amount of money that political parties can contribute to candidates, upping the limit to $32,300 for legislative candidates. As with Mesnard’s bill, the limits are actually 80 percent of what’s outlined in statute.

Farnsworth and Mesnard argue their bills aren’t shots at Clean Elections, but are attempts to remedy Arizona’s “unconstitutionally low” contribution limits for traditionally funded candidates. Privately funded candidates can’t keep up with the rise of independent expenditures, uncoordinated campaign spending that’s become prolific in campaigns since the Citizens United Supreme Court decision allowed unlimited uncoordinated campaign spending.

“As of late, many candidates have been relegated to mere spectators in their campaigns,” Mesnard testified last month in the House Judiciary Committee. “What good is the $30,000 or $40,000 I raise (at) $300 and $400 at a time, if they give me that much, when one side is out there raising $400,000? …  I might as well sit back and watch and hope I come out on top.”

Critics argue campaign contribution limits are governed by Proposition 105 — the “Voter Protection Act” — which states that any change to voter-approved measures needs a three-fourths vote of each chamber to be enacted and must further the intent of the voters.

Sen. Michele Reagan, R-Scottsdale, helped guide the last measure to raise contributions limits for privately funded campaigns through the Legislature in 2007, when lawmakers ensured they satisfied Prop. 105’s requirements.

Whether the bills proposed this year are Prop. 105 issues will ultimately be up to the courts, Reagan said.

Reagan said it is correct that voters approved campaign finance limits. “However,” she said, “we’re in a new world of campaign finance where Citizens United kind of opened up the floodgates… that changes the whole discussion of what is a Prop. 105.”

If Arizona’s contribution limits aren’t raised by the Legislature, Reagan said she’s certain they’ll be declared unconstitutionally low in court soon enough.

The Goldwater Institute’s Nick Dranias said in 2011 he thinks the Legislative Council was “overly cautious” in its 2007 interpretation of the Clean Elections Act.

“The Clean Elections Act could have specified an absolute limit and it didn’t. The problem with their interpretation is they’re reading into the Clean Elections Act something that could have been there but wasn’t,” he said.

The Clean Elections Act states that contribution limits to privately funded campaigns must be 20 percent less than the limits set in ARS 16-905. The Legislative Council has traditionally interpreted that as meaning any increase in the limits must pass with a three-fourths vote.

Best shot at relevancy

Lang said the best shot Clean Elections has to stay relevant is Prop. 105, which could force Republican lawmakers to make concessions to garner Democrats’ support.

An ideal option, according to Lang, would be a hybrid public-private system allowing candidates to use Clean Elections funding and private contributions — a method that would ensure clean candidates aren’t blown out in high-priced races.

Sam Wercinski of the Arizona Advocacy Network has been in discussion with Farnsworth to amend HB2306 to include pro-Clean Elections measures. In return, his group won’t oppose Farnsworth or Mesnard’s bills to increase private contribution limits.

Wercinski’s plan would create a system in which a publicly funded candidate would be allowed to raise funds from voters in

$50 increments paid out by vouchers from Clean Elections for as much as two times the base funding amount.

Candidates would also face a stiffer test to qualify for Clean Elections funding.  The proposal would increase the number of $5 contributions candidates must collect to quality to 250 from 220. Candidates would also have to collect $3,813 in seed money, a requirement that is now optional.

Base grants for legislative candidates would also decrease in the primary election, to $10,000 from $15,252, and the general election, to $15,500 from $22,880.

Farnsworth’s bill was held in the Senate Elections Committee on March 5 to allow time to negotiate with Clean Elections advocates, he said. The bill wasn’t intended to be a comprehensive campaign finance reform bill, but Farnsworth said he will consider including Wercinski’s changes.

That doesn’t mean the bill, as is, needs a three-fourths vote, Farnsworth insisted, and he won’t amend the bill just to gain Democrats’ support and avoid a possible lawsuit challenging the legislation as a Prop. 105 issue.

“I will not be held prisoner to that concept,” Farnsworth said. “If they want to stand up on the floor and beat their chests and say they’re going to file a lawsuit, I’m not going to be intimidated by that.”

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