For the second time, a Maricopa County judge rejected an attempt by Attorney General Tom Horne and ally Kathleen Winn to challenge the constitutionality of Arizona’s campaign contribution limits, a case that could have undermined the campaign finance charges they’re facing.
Attorney Michael Kimerer, who represented both Horne and Winn in the Friday afternoon hearing, argued that Superior Court Judge Sally Duncan should reconsider the case she threw out in September. Duncan ruled in part that Horne and Winn couldn’t bring the case because at the time there was no pending enforcement action against them for alleged violations of campaign finance laws during the 2010 election.
Now that Yavapai County Attorney Sheila Polk has formally demanded that Horne and Winn repay $400,000 in what she deemed illegal in-kind contributions to Horne’s campaign, Kimerer said Duncan should allow the case to move forward. Horne and Winn argue that the 2010 limits, which they are accused of violating, were unconstitutionally low.
But attorney Joe Kanefield, who represents Secretary of State Ken Bennett, the defendant in the case, argued that Duncan shouldn’t allow Horne and Winn to renew their case because they haven’t yet gone to court on the campaign finance allegations.
Duncan agreed with Kanefield. Though she threw the case out in part because Horne and Winn were no longer facing an enforcement action at the time, Duncan said that was only part of her reasoning. The other part was that they had not yet exhausted their other remedies in the case, namely fighting the charges in court.
“I don’t believe that the initiation of the compliance portion of this action that’s being handled by Yavapai County is exhausted. It’s just the beginning of exhaustion,” Duncan said. “So I actually don’t think anything has materially changed.”
Winn, who now works at the Attorney General’s Office, ran an independent expenditure committee that assisted Horne’s campaign in 2010. Polk has accused them of illegally coordinating their activities, which would mean that all contributions received by Winn’s committee, Business Leaders for Arizona, were subject to the $840 contribution limit that was in place in 2010.
During Horne and Winn’s initial challenge in Duncan’s court, Polk was still reviewing the case after Maricopa County Attorney Bill Montgomery was removed due to a lack of jurisdiction.
Kimerer said the issue was now ripe due to Polk’s decision to charge Horne and Winn based on contribution limits that he argued were unconstitutionally low.
He argued that Horne and Winn shouldn’t have to exhaust their administrative remedies because the charges were based on an unconstitutional statute. Even if they win the case, Kimerer argued, they would still have to spend untold amounts of money and time defending themselves.
“Why should we have to go through that if that statute is unconstitutional?” Kimerer said. “There’s just no basis to proceed in the enforcement action.”
Kanefield said Arizona case law is crystal clear. Defendants in other cases, such as former lawmaker David Burnell Smith’s removal from the Legislature for Clean Elections violations, have made similar arguments that were rejected by the courts.
“The only other point I would make is in every other one of these exhaustion cases the same arguments were made,” Kanefield told Duncan.
Kimerer said raising the constitutionality issue during the February hearings in Horne and Winn’s case is complicated, because the administrative law judge who is hearing the case has already stated she will not consider those arguments. Kimerer said he hopes to at least raise the issue enough in the Office of Administrative Hearings so that Horne and Winn can lay the groundwork for an appeal in Superior Court if the administrative law judge rules against them.
Horne and Winn deny that they coordinated their campaigns in 2010.
While Duncan won’t hear Horne and Winn’s arguments over the constitutionality of the contribution limits, the issue is likely to gets its day in court in a separate case over higher new limits that the Legislature approved earlier this year. Supporters of HB2593 argued that the limits should go into effect over the objections of opponents because the preexisting limits – set at $912 for statewide races and $440 for legislative races during the 2014 cycle – are unconstitutionally low.
The Arizona Court of Appeals declined to consider the arguments, ruling instead that HB2593 violated rules of statutory construction. But the appellate court sent part of the case back to Maricopa County Superior Court so a judge could hear arguments on the constitutionality issue. In that case, Kanefield represents the Citizens Clean Elections Commission, which sued to overturn HB2593.
The argument against Arizona’s limits largely hinge on a 2006 case in which the U.S. Supreme Court struck down Vermont’s limits as unconstitutionally low.