Federal, state laws at odds on lobbyist political contributions

To curtail the inappropriate influence of money in politics, Arizona law prohibits lobbyists from contributing to lawmakers’ campaign committees while the Legislature is in session.

But the law is widely ignored when it comes to lawmakers who are running for federal office while also serving in the Legislature. That’s because, although the contributions are clearly outlawed in state statutes, they are not banned in federal election law, which supersedes state law in many areas of federal elections.

The federal elections law essentially makes the state law — and other laws like it across the nation that are designed to curb the influence of lobbyists on policymakers — void.

The 2014 election season is already underway, and the beginning of the 2014 legislative session is only a few weeks out. This year, two sitting lawmakers are running for Congress, and both have said they will continue to serve in the Legislature while running their campaigns for Congress.

House Speaker Andy Tobin of Paulden and freshman Rep. Adam Kwasman of Oro Valley are running for the Republican Party’s nomination to take on U.S. Rep. Ann Kirkpatrick in Arizona’s 1st Congressional District.

Unlike other lawmakers who are running for re-election or a higher state office, the two congressional hopefuls will be able to take advantage of their positions in the House to reap contributions from lobbyists who have business before the Legislature.

While the two lawmakers vote on legislation — and in Tobin’s case, decide which bills receive a vote on the House floor — lobbyists who want to wield more influence and grease the wheels for their legislation will be allowed to contribute money to their congressional campaigns.

The law also bars lobbyists from contributing to the governor’s campaign while the Legislature is in session or bills are awaiting her signature or veto.

State vs. federal

Kory Langhofer, an elections attorney with Brownstein Farber Hyatt Schreck, said although the state law doesn’t make any exemptions to the ban for lawmakers or governors who are running for federal office, the advisory opinions from the Federal Election Commission make it clear the commission doesn’t believe states can outlaw the contributions.

In response to a state lawmaker from Wisconsin who was campaigning for the U.S. Senate, the commission issued an advisory opinion in 1994 stating that the Federal Election Campaign Act of 1971 superseded a Wisconsin state law that lawmakers could not receive contributions from lobbyists until June 1 of that year.

The opinion notes that the federal law states its provisions and prescribed rules “supersede and preempt any provision of state law with respect to election to federal office,” except specific types of election laws that are “interests of the state.”

“The Wisconsin provision, as applied to federal candidates, does not regulate those areas defined as interests of the state. Instead, it places restrictions on the time period when contributions may be made to federal candidates, an area to be regulated by federal law,” the commission opinion states.

Still, the courts have never officially decided a case on the issue, Langhofer said. Until that happens, the Federal Election Commission’s opinion is just that: an opinion.

“There’s  definitely an argument there that it’s not the federal race we’re trying to regulate, it’s our Arizona anti-corruption interests, and so therefore we would have justification in passing (the law),” he said, noting that he doesn’t believe any enforcement action is likely.

The contributions are common. Of the 16 sitting state lawmakers who have run for Congress since 2004, seven served out their entire two-year terms, and at least four of those accepted campaign contributions from registered Arizona lobbyists while the Legislature was in session, according to an analysis of federal campaign finance forms.

Two of the lawmakers — then-Senate President Tim Bee and Rep. Steve Huffman — accepted more than $10,000 from registered Arizona lobbyists during the months they were considering legislation.

Treading carefully

Bee said he spent a lot of time getting legal opinions on whether he could accept the contributions during session, and the consensus was that he could.

“We treaded very carefully there,” he said.

Now that he’s on the other side of the fence, working as a lobbyist for the University of Arizona, Bee said he wouldn’t be concerned about offering a contribution to Tobin or Kwasman, for example.

“It wouldn’t cause me any discomfort, but my own giving habits are such that I try to contribute outside of the parameters, anyway. So chances are if I were to give to those campaigns, it would happen outside of session, because that’s when I set my budget up for being able to give,” Bee said.

He notes that a race for Congress is such a whirlwind, that candidates often don’t even know who contributed to their campaign, and congressional candidates often have a campaign manager to accept, deposit and report contributions.

He said if sitting lawmakers weren’t able to accept contributions from lobbyists for federal campaigns, it would cut off an important source of revenue during a critical fundraising time, and hamper their ability to remain competitive.

Longtime Capitol lobbyist Barry Aarons called the state law “dumb” because it really doesn’t make a difference when he makes a contribution — there’s no quid pro quo — and even if there was, lobbyists could just contribute the day before or after the legislative session.

He agrees that contributing to sitting lawmakers running for federal office isn’t illegal, but said he shies away from the practice because it just looks bad.

“Federal law trumps state law, but political perception trumps them both,” he said. “I worry about political perception for both the legislator who is running for Congress and the impression that my clients might have about why I would do something like that when it’s a questionable, even if legal, practice.”