After Attorney General Tom Horne took the stand to defend himself against allegations that he coordinated with an independent expenditure committee, it was hard to find election law experts who agreed on whether his actions violated Arizona law.
Borrowing a word from a top official at the Secretary of State’s Office, Horne’s lawyers argued that the coordination law is vague. As such, elections officials in the state often use federal guidelines to determine whether candidates and independent expenditure committees have crossed the line.
Rather than informally relying on the Federal Election Commission to help fill the gaps in Arizona’s coordination laws, the Arizona Chamber of Commerce and Industry pushed a bill that would codify the federal rules into state law. But that effort has stalled.
The chamber is hoping its efforts can find new life later in the legislative session, probably with a strike-everything amendment. Rep. J.D. Mesnard, R-Chandler, who ran the bill for the chamber, is still meeting with stakeholders in the hope of crafting a bill that can get enough support to pass.
“My bill is dead. I don’t think the issue is dead, but my bill is dead,” Mesnard said.
More than anything, Mesnard said he must convince Rep. Eddie Farnsworth, R-Gilbert, who chairs the House Judiciary Committee, to allow the bill to move forward. Farnsworth declined to hear Mesnard’s original bill, HB2468, before the deadline for bills to be heard in committee in their chambers of origin.
HB2468 would have struck most of Arizona’s current statutory definition of coordination from the books. In its place would be a provision explicitly adopting federal laws on coordination.
Mesnard said Farnsworth had two primary objections: he dislikes adopting federal laws by reference, and isn’t convinced the change is even necessary.
“I think Mr. Farnsworth has always expressed a hesitation of tethering ourselves to federal anything. And then I think he needs to be persuaded of the necessity of this also,” Mesnard said.
Outside of the high-profile Horne case, Mesnard said accusations of coordination are rare in Arizona. But the law should still be changed because it is so vague, he said, and no one wants to be the test case.
To alleviate Farnsworth’s concerns over the adoption-by-reference of federal laws, Mesnard said stakeholders are trying to figure out which specific provisions of federal law they want written into state statute.
Under state law, an independent expenditure is not considered independent if it shares a common officer or agent with a candidate’s campaign; if there is arrangement “with respect to the expenditure;” if an employee has worked for both campaigns during the same election cycle; or if the expenditure is based on information provided by a candidate’s campaign.
Federal law, on the other hand, is far more detailed. It includes a five-part “conduct prong” stating what kinds of actions would constitute coordination. Under the conduct prong, a candidate or his campaign are guilty of coordination if:
• The expenditure is created at the request or suggestion of a candidate.
• A candidate of a campaign is “materially involved” in decisions.
• There are “substantial discussions” between the IE and the candidate’s campaign.
• The two campaigns share a common vendor.
• A person who has been employed by a candidate campaign within the past 120 days joins an IE, or provides information obtained during that employment.
Any one of those five criteria could constitute coordination under federal law.
Kory Langhofer, an elections attorney who represents the Arizona Chamber of Commerce and Industry, said the most important thing HB2468 would have done is adopt the “safe harbors” in federal law that shield people from coordination claims. One of those safe harbors protects campaigns and IEs when they have a common employee or vendor, as long as there is a “firewall” between them.
For example, Langhofer said a campaign fundraiser or treasurer likely would have no proprietary information about a campaign. But state law would bar them from participating in an IE anyway.
“The problem under Arizona statute is it defines things as coordination that no one thinks of as coordination,” said Langhofer, of the firm Brownstein Hyatt Farber Schreck.
One change that the chamber wants would simply clean up a flawed law approved by the Legislature in 2013. The law asserts that a member of a host committee for a candidate’s fundraiser can work on an IE without being guilty of coordination.
But the language of the 2013 law didn’t do what the chamber had hoped to accomplish when it pushed the bill, according to chamber spokesman Garrick Taylor. So a fix is needed.
Langhofer said Arizona’s coordination law is overly vague, to the point of potentially being unconstitutional. By adopting the federal prongs used to define coordination, and adding the federal safe harbors, the proposal that the chamber is pushing would eliminate that ambiguity.
The proposal wouldn’t allow candidates and IEs to do much more than they can now under state law, Langhofer said. It would simply make the law clearer.
“This is a serious problem in Arizona law,” he said.
Election officials in Arizona take a similar stance. During the FBI’s investigation of Horne, Assistant Secretary of State Jim Drake told agents that the statute is vague and there is no clear standard under Arizona law.
Maricopa County election director Karen Osborne said it would be helpful to create a clear definition in state law.
“It is always difficult to enforce campaign finance law, period,” Osborne said. “And when you get into coordination, then it is the tougher level to prove. Everybody has a different definition of what the meaning of ‘coordination’ is, and it has to be brought together by volumes of information to be able to try and create a clear picture of what happened.”