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Campaign contribution limits do not violate free speech

The voters of Arizona enacted the Citizens Clean Elections Act in 1998 as an effort to ensure against corruption, provide voters with more information about elections, and ensure non-partisan, independent enforcement of election laws. One of the features of Clean Elections was to set the level of political contributions statewide and legislative candidates could receive.

Candidates have long-been limited in how much they can take from particular political donors both at the federal level and in many states. The limits operate on a simple premise — because corruption (dollars for political favors) can evade authorities, the people can put in place safeguards that ensure against corruption by limiting the amount of political contributions.

Under the Arizona Constitution, these limits cannot be circumvented by legislators, but rather can only be amended with a three-quarter vote of the Legislature on a bill that furthers the purpose of the Clean Elections Act. These are the principles that underlie the Clean Elections Commission’s lawsuit over House Bill 2593. The measure, which sought to increase contribution limits applicable to statewide and legislative candidates by almost ten-fold and removed altogether other limits that work to ensure against corruption and its appearance in Arizona, was put on hold for state races more than a month ago by a unanimous panel of the Arizona Court of Appeals, including appointees of both Democratic and Republican governors.

Defenders of HB2593 and critics of Clean Elections like to argue that campaign contribution limits are a violation of free speech. They are wrong. Just as “free speech” is no defense to falsely crying fire in a crowded theater, “free speech” is not a magic wand to waive away corruption and its appearance.

In Arizona, any candidate can raise and spend as much money as they want from as many individuals as they want. Particular limits apply to candidates when it comes to special interest PACs, whether left or right, business or labor. But nothing prevents the candidate and the PACs from associating, as is their right.  Moreover, people are free to raise and spend unlimited amounts of money on independent expenditures.

It is this independent speech that critics of Clean Elections want to stop.  Some who supported House Bill 2593 claimed that their goal was to limit independent expenditures by expanding the amount of campaign cash state candidates can take from particular individuals and PACs. But this view, which seeks to limit the number of independent voices involved in politics, is the antithesis of First Amendment principles. No other way to put it — these critics of Clean Elections and campaign contribution limits want less speech. Worse yet, their plan won’t work. As former Speaker Kirk Adams, no stranger to politics and campaigns, recently explained to The Arizona Republic, increasing the amount of money candidates can take from their political benefactors will not make a “significant impact” on independent expenditures.

Former Speaker Adams’ point is well taken and goes to the other problem supporters of HB2593 have failed to address. By increasing the amount of cash candidates could take in, supporters of HB2593 claimed they could help the public more easily find out who was spending money to get their votes in elections. But this position offers a false choice to voters — either you get the anti-corruption protections you voted into to law through Clean Elections or you get the transparency everyone agrees you deserve. You can’t have both, they say.  Supporters of HB2593 thus ignore that the Constitution treats limits on spending by independent groups very differently from direct contributions to candidates.  This is the lesson of Citizens United, one supporters of HB2593 would do well to consider.

Instead of retreading the same tired arguments rejected by our courts, Clean Elections has a different suggestion. Folks from all sides should work together to enact real solutions that are consistent with the will of the voters, ensuring independent groups disclose their donors and reforming campaign finance laws consistent with the Arizona Constitution. The door is open. And now is the time to take action. My direct line is 602-364-3483. Call anytime.

Thomas M. Collins, executive director, Arizona Citizens Clean Elections Commission and an attorney.

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