Republican leaders in both chambers of the Arizona Legislature are pushing a bill to pay for the legal fees of current and former lawmakers whose memos and letters have been subpoenaed by opponents of SB 1070.
Opponents of the immigration law are seeking documents they believe will show evidence of racial bias on the part of lawmakers who voted in favor of the legislation in 2010.
Roughly 21 current and former lawmakers, including former senators Ron Gould and Russell Pearce, have been subpoenaed by the American Civil Liberties Union in Atlanta.
The ACLU is among the groups challenging SB 1070 in federal court and claiming in Valle Del Sol v. Whiting that the Arizona law invites racial profiling.
The proposal would provide $50,000 each to the Arizona Senate and House of Representatives to cover the legal fees of the current and former state officials who are being asked to produce documents in federal court. The measure would limit the use of the fees to each individual’s capacity as a current or former elected official.
Funds would not be used for the production of campaign-related materials.
The Senate GOP Caucus met in closed session Tuesday morning to discuss the issue.
Senate President Andy Biggs, who along with House Speaker Andy Tobin plans to introduce the legislation next week, blasted the ACLU for what he called an inappropriate “fishing expedition.”
“This is being done strictly as a way to harass them. So what our proposal is, we have to protect the institution,” said Biggs, R-Gilbert. “I would feel the same way if someone was going after Democrats, I really would. When you’re serving at the Legislature, and you voted a certain way, and now they want your records, then yeah, we need to cover you.”
Biggs said it was highly questionable that some of the subpoenaed lawmakers hadn’t been elected yet when SB 1070 was approved.
“They subpoenaed Sen. Griffin, who wasn’t even in the legislature at the time, They submitted Steve Smith, who wasn’t in the legislature at the time,” Biggs said. “That makes you think that maybe it’s a little bit overly broad.”
ACLU-Arizona attorney Dan Pochoda dismissed Biggs’ characterization of the subpoena as harassment.
“No, it’s not a fishing expedition. We’re looking for specific evidence about the intent of the legislators at the time of passage,” Pochoda said.
The subpoenas specifically ask for personal communications – including personal email, text, written notes, campaign literature, social media postings and other forms of communication – that contain words such as “beaner,” “alien,” “spic,” “illegals,” “wetback,” “assimilation,” “Aztlan,” “Hispanic,” “profiling” and “Reconquista.”
The documents also include neutral words such as “English,” “Spanish,” “Mexico,” “day labor” and “immigration.”
Legislative leadership had asked the Attorney General’s Office to represent lawmakers. But the office said it couldn’t represent the lawmakers because they have only been subpoenaed and are not a party to the lawsuit challenging SB 1070.
Attorney Kory Langhofer confirmed that he’s been hired by the Legislature, and that he’s already made “certain objections to the subpoena.”
Ron Gould, who was subpoenaed, said Langhofer zeroed on one argument – that the subpoena is unduly burdensome.
“[The letter of objections say] their request is overly broad, this has Fourth Amendment implications, and constituents’ communication with legislators is privileged,” Gould said.
In issuing the subpoena, it’s inevitable that the ACLU will get information that’s not necessarily relevant to that goal, but Pochoda said that’s up to the ACLU to decide. Pochoda rejected Langhofer’s argument that the subpoena is unduly burdensome.
“The persons who were seeking the information always have the right… to be the arbiters of what’s relevant or not,” Pochoda said.
ACLU-Arizona executive director Alessandra Soler also defended the group’s demand for documents that include neutral words such as English,” “Spanish,” and “Mexico.”
“What we’re arguing is that, if the motivation was discriminatory and if they were targeting a specific ethnic group or group of people based simply on their national origin, then you can use that to argue that they’re violating the Equal Protection [Clause],” she said.
Rep. Carl Seel, R-Phoenix, was among those who received the subpoena and is furious about it, claiming it violated his civil liberties since it’s asking for his personal files.
“They’re on a witch hunt to try to paint us as really bad people,” he said. “They’re trying to dig into my personal life… And it’s the ACLU. Apparently, they are now the Anti-Civil Liberties Union.”
Lawmakers have the support of Gov. Jan Brewer, who agreed that the subpoena may be asking for too much.
“I think that it’s a bit overreaching and a bit unfair. I believe in public disclosure. I think everything should be publicly disclosed,” Brewer said. “But it seems like an odd, overreaching situation regarding legislators that are not even there anymore, people that probably didn’t even vote on it. It just seems a bit bizarre.”