Lawmakers ask state Supreme Court to reinstate new contribution limits

Jeremy Duda//November 4, 2013

Lawmakers ask state Supreme Court to reinstate new contribution limits

Jeremy Duda//November 4, 2013

Andy Biggs, Andy Tobin

Senate President Andy Biggs and House Speaker Andy Tobin asked the Arizona Supreme Court to lift an injunction against new campaign contribution limits passed by the Legislature.

Attorney Mike Liburdi, who represents Biggs and Tobin, argued that the Arizona Court of Appeals erred when it determined that voters intended to fix campaign contribution limits permanently when they approved the Citizens Clean Elections Act in 1998. He also told the high court that it should reinstate the higher new contribution limits contained in HB2593 because the old limits are unconstitutionally low.

The crux of the dispute over HB2593 is a provision in the Clean Elections Act that reduces the contribution limits from a separate statute by 20 percent. Opponents of the new limits argue that the voters intended that reduction to set new contribution limits in perpetuity.

But Liburdi said there’s no evidence that voters intended to enshrine the 1998 limits when they approved the 20 percent reduction. The drafters of the act could have included firm limits if they’d wanted, he said, but such limits are “conspicuously absent” from the act.

“Nothing in the history of the CCE, including the publicity material, shows intent to set firm contribution limits. It simply repeats what the law proposed: Reduce the current limits by 20 percent,” Liburdi wrote. The court’s insistence that ‘current’ means ‘current and all future’ misreads the legislative history.”

If statutes can become voter-protected simply because they are cross-referenced in another voter-approved law, then the Legislature should have applied that principle to several laws passed since the advent of the Voter Protection Act, Liburdi wrote.

Under that logic, Liburdi argued that the VPA should have applied to a 2000 law changing the formula used to increase contribution limits by inflation and a 2013 law creating new methods of campaign law enforcement. He also said a 2007 law increasing contribution limits, which actually meet the requirements of the VPA, should be considered null because lawmakers did not actually amend the statute containing the 20 percent reduction.

Liburdi said an implied amendment to the contribution limits made by the Clean Elections Act violates a provision in the Arizona Constitution that bars amendments “by mere reference.”

And while the Court of Appeals said the reduction would be rendered meaningless if the Clean Elections Act didn’t set new limits, Liburdi argued that a law is not rendered meaningless simply because the Legislature can amend it.

The injunction against HB2593 after a month of the higher new limits being in effect creates massive confusion for candidates and contributors, Liburdi wrote.  He included declarations from three other GOP lawmakers – Rep. Heather Carter, Sen. John McComish and Rep. T.J. Shope – who said they did not know whether they are still able to use contributions they received during that month that exceed the old limits.

“The preliminary injunction has now ignited great uncertainty in the campaign process, potentially exposing candidates to civil penalties. And even if candidate activity was lawful, overzealous regulators or unscrupulous opponents may create negative publicity,” Liburdi wrote.

He also argued that the injunction should be stayed because the old limits infringe on candidates’ free speech rights. Candidates’ campaigns are hindered because Arizona has some of the lowest contribution limits in the country, along with some of the most populous legislative districts in the country, he said, especially considering the unlimited money that independent expenditure committees can spend.

“The First Amendment requires that contribution limits not be so low that they prevent a candidate from running an effective campaign,” Liburdi wrote.

The Court of Appeals sent part of the case back to the trial court, where it instructed Maricopa County Superior Court Judge Mark Brain to hear arguments on whether Arizona’s contribution limits are unconstitutionally low. Liburdi asked the Arizona Supreme Court to determine whether the plaintiffs or the defendants have the burden of proof in those arguments.

Louis Hoffman, chairman of the Citizens Clean Elections Commission and a plaintiff in the case, expressed hoped that the Arizona Supreme Court would reject the case and allow the injunction to stand.

“The Court of Appeals rightly recognized that the Legislature cannot change the Clean Elections Act through the back door, just by avoiding explicit change to the Act’s text. Therefore, I will urge the Arizona Supreme Court to decline review of this unnecessary petition,” Hoffman said in a press statement. “There is no purpose for further legal proceedings seeking to undo the will of Arizona voters.”