The Citizens Clean Elections Commission did not deny Mainstream Arizona any of its constitutional rights when the commission awarded public matching funds to 15 conservative candidates for the Legislature, a judge has ruled.

The $67,500 in matching funds that the Clean Elections Commission disbursed in early August “did not affect in any way Mainstream’s ability to produce and distribute mailers,” Judge Edward Burke of the Maricopa County Superior Court ruled on Oct. 4. “The mere fact that the candidates that Mainstream opposed were provided with public funding is not a deprivation or curtailment of any of Mainstream’s rights.”

Mainstream Arizona describes itself as a nonpartisan organization that advocates centrist positions on state political issues. The group is a so-called 527 organization under the U.S. Internal Revenue Code that isn’t required to report its income and expenditures to the state.

Mainstream Arizona’s co-chairman Jack Jewett said the group took great pains in sending out mailings that it contends only promotes support for a “fiscally responsible budget and strategic investments in Arizona.”

The mailings, which were otherwise worded identically, did variously mention nine incumbent Republican lawmakers and included their photographs. The staff of the Clean Elections Commission in early August decided that the mailing were advocating the election of the nine incumbents, and, after estimating the cost of the mailings, awarded a total of $67,500 in matching funds to 15 opponents of those mentioned in the missives.

Mainstream Arizona contended that the five commissioners couldn’t delegate to its staff the determination of matching funds related to such “unreported” independent expenditures. The lawsuit filed Sept. 10 also argued that the Clean Elections Commission staff had erred in determining that the mailings amounted to “express advocacy” on behalf of the nine centrist Republican legislative candidates.—

Judge Sided With Commission

But Judge Burke sided with the Clean Elections Commission.

“Because the CCEC’s action in providing matching funds had no direct impact on Mainstream, it was not deprived of due process by not having been given an opportunity to be heard in regard to that decision,” Judge Burke wrote.

Judge Burke found that Mainstream Arizona’s mailing “expressly advocated” the election of nine candidates, despite the efforts of legal counsel to edit the texts otherwise.

Judge Burke noted that the mailings were “sent out the day before absentee ballots for the primaries were mailed.”

Also of significance, Judge Burke wrote: “Barring a special legislative session between now and January, the only way that the legislators could ‘continue’ to support a fiscally responsible budget is to be re-elected.”

Judge Burke wrote that he didn’t find it necessary to decide whether the Clean Elections Commission exceeded its statutory authority by allowing its staff to award matching funds because, on Sept. 14, the five commissioners met and approved the awarding of matching funds on a 4-1 vote.

Lee Stein, counsel for Mainstream Arizona, couldn’t be reached for comment on whether his client will appeal the ruling.

In the Sept. 7 Republican primary election, five of the “Mainstream Nine” — Rep. Bill Arnold, District 12; Rep. Carole Hubbs, District 4; Rep. Clancy Jayne, District 6; Rep. Bill Wagner, District 3; and Sen. Slade Mead, District 20 — lost to more conservative challengers. The four other candidates mentioned in the Mainstream Arizona mailings — Sen. Carolyn Allen, District 8; Rep. Jennifer Burns, District 25; Rep. Marian McClure, District 30; and Rep. Michele Reagan, District 8 — won their respective primary races to advance to the Nov. 2 general election.

FYI

The case is Mainstream Arizona v. Citizens Clean Elections Commission, no. CV2004-017610. —