The Arizona Supreme Court on Tuesday will hear arguments on the injunction against higher new contribution limits approved by the Legislature. Its ruling on the matter may well be the final word on how much money candidates can accept during the 2014 elections.
Senate President Andy Biggs and House Speaker Andy Tobin are challenging the Arizona Court of Appeals’ injunction that blocked the new limits from going into effect. The appellate court overturned a lower court ruling that allowed HB2593, which the Legislature passed in the 2013 session, to go into effect.
The Court of Appeals did not opine on whether HB2593 violated the Voter Protection Act, an argument that has dominated the discussion over raising Arizona’s contribution limits. Instead, the appellate court ruled on an issue of statutory construction, saying the Legislature amended the wrong statute when it increased the limits.
The case revolves around the question of whether voters intended to establish firm limits in 1998 when they passed the Citizens Clean Elections Act. The act added a new statute to the books, ARS 16-941(B), which reduced the existing limits in ARS 16-905 by 20 percent. The appellate court ruled that the voters essentially rendered ARS 16-905 moot by adopted new limits in 16-941(B), and that the changes that HB2593 made to the old statute are moot.
The Clean Elections Act is covered by the Voter Protection Act, which only allows the Legislature to amend a voter-approved statute with a three-fourths vote and in a way that furthers the intent of the voters.
If the voters firmly established new limits when they approved the Clean Elections Act, then those limits are voter-protected. That would mean that the Legislature could not raise the limits without complying with the Voter Protection Act.
Mike Liburdi, an attorney representing Biggs and Tobin, argued in court briefs that the 20-percent reduction was simply meant to apply to the contribution limits, whatever they are. If voters and the drafters of the Clean Elections Act wanted to firmly set new limits, they could have easily done so, the attorney argued.
“The drafters’ decision to forego such obvious and easy means to set specific contribution limits reflects their intent not to do so,” Liburdi wrote. “The most logical conclusion, therefore, is that the drafters used different language for 16-941(B) because they intended it to have a different effect.”
The commission’s attorney, Joe Kanefield, argued that the drafters of the initiative clearly intended to lock in the limits as they existed in 1998. Kanefield disagreed with Liburdi’s argument, writing that the drafters’ decision not to establish explicit new limits was not a sign that they didn’t intend to do so.
“(The Supreme Court) has shown itself willing to forgive drafting that directly contradicts what the voters intended to accomplish,” he said “Simply put, the voters enacted language sufficient to accomplish their purpose of setting limits.”
Kanefield said the act’s drafters did not intend for the 20-percent reduction to be nothing more than a formula for reducing the limits, no matter how high they are.
Attorneys say the Supreme Court’s decision after Tuesday’s hearing is likely to determine the fate of Arizona’s contribution limits for the 2014 cycle as a whole.
“I think it will be the final word,” Kanefield told the Arizona Capitol Times.
However, Kory Langhofer, an elections attorney with the firm Brownstein Hyatt Farber Schreck, said Tuesday’s hearing may not be the final word.
Liburdi and the Goldwater Institute, which intervened as a supporter of HB2593, have argued that the old limits are unconstitutionally low and violate the First Amendment to the United States Constitution. The Court of Appeals instructed Maricopa County Superior Court Judge Mark Brain to hear additional arguments on the subject.
If the commission wins, Langhofer said the Goldwater Institute is likely to ask Brain for a preliminary injunction against the old limits if HB2593 is blocked from going into effect.
“Clean Elections can lose tomorrow, and they can win at least for a short time tomorrow, but they can’t get a final win tomorrow,” Langhofer said.
But Langhofer said it’s likely that whoever wins Tuesday’s hearing will determine the limits for the rest of the 2014 cycle.
HB2593 raised contribution limits for state-level races to $4,000 per election cycle. The old limits, which are now back in effect, are $440 for legislative races and $912 for statewide races.