The conservative divide on Arizona’s political contribution limits

For conservatives, the pending lawsuit over contribution limits poses a difficult question: Should the original meaning of a constitutional provision, or the goal of small government and liberty, have greater weight? The question pits two strands of conservatism against each other.

Judicial conservatives (such as the late Robert Bork and current U.S. Supreme Court Justice Samuel Alito) abhor “lawmaking from the bench.” They insist that the meaning of a constitutional provision is imparted by voters and legislators at the time the provision is adopted, and cannot be changed by subsequent legislation or judicial decisions. In its purest form, this strain of conservatism focuses on legitimate democratic processes rather than substantive results.

Small-government conservatives, on the other hand, place greater emphasis on reducing the size of government and are less concerned with the means by which libertarian ideals become official public policy. They might, for example, argue that the court should interpret a constitutional provision to minimize governmental power — without regard for whether that was the original understanding of the provision.

While often in harmony, these two brands of conservatism are at odds in Arizona’s pending contribution limits lawsuit. The Clean Elections Act, an initiative approved by voters in 1998, reduced contribution limits by 20 percent. (Although the Clean Elections Act modified statutes rather than the Arizona Constitution, voter-approved initiatives enjoy a semi-constitutional status in Arizona due to the Voter Protection Act, a portion of the Arizona Constitution that generally prohibits the Legislature from tinkering with or undermining voter-approved laws.) And in Clean Elections v. Brain, which is currently on appeal before the Arizona Supreme Court, the parties dispute whether the Arizona Legislature violated the Voter Protection Act earlier this year by dramatically increasing contribution limits over the levels set by the Clean Elections Act in 1998. The basic question in the case is this: Should the Clean Elections Act be construed to lock in contribution limits at 80 percent of their pre-1998 levels, or to reduce by 20 percent the contribution limits as they may be amended from time to time?

According to judicial conservatives, the Clean Elections Act should mean now what it meant in 1998 (i.e., that contribution limits should be 20 percent lower than in 1998). To be sure, supporters of the increased contribution limits have argued at length that the Clean Elections Act was not originally meant to lock in contribution limits at

80 percent of their pre-1998 levels — but the supporters have offered no straight-faced alternative interpretation that would give teeth to the Clean Elections Act, and it cannot be seriously disputed that a core purpose of the Clean Elections Act was to reduce the number and significance of dollars in Arizona elections as compared to the pre-1998 system. Regardless of whether the Clean Elections Act is good policy, judicial conservatives would follow the original meaning of the Clean Elections Act.

Small-government conservatives, meanwhile, support the increased contribution limits because they increase speech and reduce governmental interference. Because the Clean Elections Act did not specify an exact dollar amount at which contributions were limited (it only said that limits were to be reduced by 20 percent), small-government conservatives argue that the Arizona Legislature is free to increase contribution limits without violating the Clean Elections Act (although they concede that increases must themselves be reduced by 20 percent due to the Clean Elections Act).

Thus, there is no single “conservative” position on Arizona’s contribution limits lawsuit, because judicial conservatism and small-government conservatism are directly at odds. And while four of the five justices on the Arizona Supreme Court are Republican appointees (and presumptively conservative), it is difficult to predict their votes in the pending case because the conservative justices have given few clues in prior decisions as to whether they are judicial conservatives or small-government conservatives.

The two sides of conservatism may be reconciled at a later stage in the proceedings.

The Goldwater Institute, for example, has offered an interpretation that would give credit to the original meaning of the Clean Elections Act, but invalidate the pre-2013 contribution limits under the federal Constitution — an approach that may satisfy both judicial conservatives and small-government conservatives. But such arguments are not currently before the Arizona Supreme Court. Consequently, Clean Elections v. Brain offers a rare opportunity to witness an open clash between two sides of conservatism.

— Kory Langhofer, Republican election law attorney in Phoenix.