An opinion by Attorney General Mark Brnovich allows elected officials to spend taxpayer dollars to influence elections as long as they’re not explicitly advocating for voters to cast ballots a particular way.
Issued at the request of Maricopa County Attorney Bill Montgomery and Yavapai County Attorney Sheila Polk, the opinion concludes that public dollars can be spent to influence an election, so long as the money isn’t spent in a way that “unambiguously urges the support or defeat of a candidate, initiative, or referendum.”
While Montgomery called the opinion a “prudent step of clarifying permissible actions,” elections attorney Kory Langhofer had another word for Brnovich’s legal guidance.
“It’s horrifying,” he said.
Motives of Montgomery and Polk are clear – both prosecutors are outspoken opponents of marijuana legalization. They wanted guidance on what activities, in their official capacities as county attorneys, would be above board now that activists with the Campaign to Regulate Marijuana Like Alcohol have filed a ballot initiative to bring marijuana legalization to a vote in 2016.
Polk acknowledged that her advocacy against marijuana and other drugs puts her in a position to potentially break the law, and said she must be sure she doesn’t abuse the power of her office.
Langhofer and Polk agree that Brnovich’s opinion gives her and other elected officials plenty of leeway to “educate” the public on issues such as marijuana legalization. But according to Langhofer, the opinion allows officials like Polk to toe the line between what’s considered education and advocacy.
Officials could go “almost all the way” to advocating the defeat of the marijuana legalization initiative, so long as they don’t expressly urge its defeat,” Langhofer said.
“You could say: ‘In our view, (legalization is) catastrophic.’ And that would be OK,” he said.
Armed with Brnovich’s opinion and a clever elections attorney, “you can absolutely move the needle in an election” with public dollars, Langhofer said.
WEARING 2 HATS
Polk is one of the leaders of Arizonans for Responsible Drug Policy, a political committee formed to fight efforts to legalize marijuana, and the director of MATFORCE, a Yavapai County-based organization fighting substance abuse.
“I do wear two hats… I do, absolutely, without any public resources whatsoever. And I will keep that very clear, well-drawn (line) between work that I do on behalf of ADRP and work that I do as county attorney educating the public,” she said.
Polk said she spends little, if any, of the money provided to the Yavapai County Attorney’s Office on anti-marijuana education. But she agreed that, given Brnovich’s ruling, she could ramp up those education efforts if money was available.
“I have an annual budget that’s approved by the Yavapai County Board of Supervisors, and I don’t have any funds that are allocated for drug education because I do all that through MATFORCE,” she said.
In a written statement, Montgomery said he and Polk requested the attorney general’s opinion after a vote on marijuana legalization in Oregon.
“The Yavapai County Attorney and I saw the nonsense engendered by proponents of legalization of drugs in Oregon this past election cycle. In particular, efforts to falsely accuse public officials of improperly engaging in efforts to educate the public about issues related to drug legalization. To forestall such tactics in Arizona, we took the prudent step of clarifying permissible action beforehand,” Montgomery said.
Oregon Rep. Earl Blumenauer had accused state officials of “purposefully scheduling a series of one-sided presentations on the drug just before the Nov. 4 election to sway the results,” The Oregonian reported. Funding for the events was provided in part by the Oregon State Sheriff’s Association. Blumenauer told The Oregonian he was concerned federal funds were being used to spread anti-marijuana campaign efforts across the state.
DIFFERENCE BETWEEN EDUCATION AND ADVOCACY
Ryan Hurley, an attorney for the Campaign to Regulate Marijuana Like Alcohol, disagrees with Brnovich’s conclusions about what constitutes education or advocacy.
He acknowledged that the attorney general’s interpretation of the law “gives (Polk) pretty broad latitude to talk about marijuana in general. But to talk about legalization and whether this initiative is a good idea or not, that’s when it starts to cross a line.”
Knowing that a pro-marijuana initiative has been filed, the conversation about Polk’s education campaign must change and she should be wary of talking about being for or against legalization, Hurley said.
“The restriction is really on the spending of public resources and funds. It’s not that she can’t use her name and her position to say what she believes, but she can’t use taxpayer dollars to do it. If she says marijuana is bad on county time, that’s OK. But if she says legalization is bad, that’s crossing the line,” he insisted.
When asked why Brnovich has a different opinion, Hurley’s reply was blunt.
“Maybe that’s what the AG thinks, but I don’t think that’s the case,” he said. “His opinion is not the final word on the matter.”