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Arizona Supreme Court attempts to determine voter intent on contribution limits

BThe Arizona Supreme Court grilled attorneys in the case over HB2593 in attempt to determine whether voters intended to set firm contribution limits in 1998 or simply reduce the amount of money candidates could accept, regardless of how the limits might change in the future.

Joe Kanefield, an attorney for the Citizens Clean Elections Commission, which sued to block HB2593, argued that by creating a new statute that automatically reduced the limits by 20 percent, voters intended to set the limits as they existed when they passed the Citizens Clean Elections Act. Therefore, he argued, the Legislature’s decision to raise the limits during the 2013 session is invalid.

Meanwhile, Mike Liburdi, who represents Senate President Andy Biggs and House Speaker Andy Tobin, who are defending the law, said voters intended only to reduce the limits by 20 percent, whatever those limits might be.

Chief Justice Rebecca Berch said the court would issue an order in the near future, with a fuller explanation of its decision coming later.

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.

Liburdi, who spoke first, was insistent that voters could have simply created new limits had that been their intent. Their decision not to speaks volumes, he argued.

Voters and the drafters of the Clean Elections Act understood that the Legislature might raise the contribution limits as they had several times since the original limits were passed in 1986, Liburdi said.

“That was a risk that the drafters had taken, and as a consequence of the language chosen,” Liburdi said. “The 20 percent reduction is a significant reduction. What that says is that whatever consensus is at the Legislature for the contribution limits, the Clean Elections Act is going to take away 20 percent.”

Liburdi said voters created the Clean Elections system simply as an alternative to privately funded campaigns. ARS 16-905, which contains the original limits, and ARS 16-941, which reduces them by 20 percent, must be taken together and in harmony, he said.

Several justices pressed Liburdi on why voters would simply create a formula for reducing the limits if they didn’t intend to actually set new limits. Justice Scott Bales seemed especially skeptical.

“How does that purport with intent of the voters?” Bales asked. “I think you’re posing a set of alternatives that don’t necessarily exhaust the possibilities.”

Several justices questioned whether voters passed the 20 percent reduction knowing that the Legislature could simply come back during the 1999 session and increase the contribution limits 100-fold. Liburdi argued that the 20-percent reduction was intended to lower the amount of money that candidates could accept, regardless of what the limits were in the future.

“The choice of their words presupposed legislative amendments in the future,” Liburdi said.

The justices were equally hard on Kanefield. Justice Ann Timmer, who didn’t utter a word during Liburdi’s arguments, pressed the commission’s attorney early and often on why voters didn’t simply set new limits if that was their intention.

“What possible purpose could be gained in using this percentage, other than to have that be an ongoing formula?” Timmer asked.

Kanefield responded that the drafters of the Clean Elections Act may have simply decided that using the 20-percent reduction was easier than reproducing the entire statute of ARS 16-905, which includes numerous other provisions besides the contribution limits. There’s no reason why they would have to do it in one specific way, he said.

“There’s probably 100 different ways the voters could have drafted that statute to accomplish what they wanted,” Kanefield said.

Berch too questioned why the voters and drafters would have chosen such an ambiguous way of setting new contribution limits.

“You mentioned that that could’ve been done in 100 other ways. And I’d suggest that 99 of them would have been clearer than this,” Berch said, eliciting laughter from the gallery.

Timmer suggested that the 20-percent reduction may have been an acknowledgement that the voters understood that the Legislature might raise the limits in the future. At the time the Clean Elections Act was drafted and passed, voters did not know that legislative amendments to the act would be largely barred by the Voter Protection Act, which also passed in 1998.

“Could that be seen as a reason why they chose 20 percent rather than set an amount that could easily be displaced in a year or two?” Timmer asked.

Kanefield said that while voters may have understood that the Legislature could raise the limits in the future, that doesn’t necessarily mean they wanted that to happen. One of the primary reasons voters passed the Clean Elections Act, he said, was that they were concerned about the corrupting influence that large contributions had on politics.

“They certainly weren’t trying to set up a formula that the Legislature could just circumvent,” Kanefield said.

Kanefield said there’s no question that the voters intended to set firm limits.

“We’ve got to cut the voters a break here. It’s clear what thy intended to do,” he said.

When the Court of Appeals issued its injunction against HB2593, reversing a lower court decision, it ruled that the bill violated rules of statutory construction. By passing ARS 16-941, the voters firmly established new contribution limits in that statute, the appellate court said, and therefore any changes made to ARS 16-905 are moot.

Liburdi noted that when the Legislature raised the contribution limits in 2007 – the comprehensive elections bill also bolstered Clean Elections and complied with the Voter Protection Act – it made the changes to ARS 16-905, not the voter-protected statute.

“Nobody considered 905 to have been somehow superseded,” Liburdi said.

But Justice John Pelander questioned Liburdi on why the Legislature also reenacted ARS 16-941 in that 2007 bill, and suggested that by doing so, lawmakers acknowledged that that statute actually governed the contribution limits. Liburdi disputed that argument, saying the changes to ARS 16-941 were simply technical changes.

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