Secretary of State Michele Reagan is no longer going to enforce a law designed to give targets of last-minute political “hit pieces” time to respond.
Reagan told Capitol Media Services the decision came after Eric Spencer, her elections director, concluded the provision to notify a candidate being attacked likely is unconstitutional. And Reagan said she considers the violation – to the extent there is one – to be minor.
“Perhaps there are other violations that warrant a lot more of the office’s time and response,” she said.
But Thomas Collins, executive director of the Citizens Clean Elections Commission, said that isn’t a decision for Reagan to make.
Collins, a former assistant attorney general, said it’s up to the Legislature to make the laws. And he said the executive branch, which includes the Secretary of State’s Office, is obligated to uphold and defend those statutes until a court concludes otherwise.
What Reagan is doing, he said, is making her own independent determination.
“What that tends to do is empower the executive branch official over the courts and the Legislature,” he said.
Attorney Tim Hogan from the Arizona Center for Law in the Public Interest was more blunt in concluding that Reagan does not get to unilaterally decide a law is unenforceable.
“We didn’t elect Michele Reagan or anybody else in the executive branch to be judges,” he said.
Spencer acknowledged there has never been a court ruling voiding the current version of the law. But he said that’s irrelevant.
“It’s our constitutional duty not to enforce a statute that’s unconstitutional,” Spencer said. “A statute need not necessarily be held unconstitutional by a court for an executive branch officer to recognize a law’s unconstitutional.”
Spencer also cited a 2003 federal appellate court ruling voiding an earlier version of the same notice requirement. He said the current version still includes sections the judges found unconstitutional, sections the Legislature never bothered to change.
The law in question says any political committee, corporation or labor organization that spends money on a race within 60 days of the election must send a copy of what they are putting out to any named candidate. That has to be done by certified mail within 24 hours of sending out the campaign mailer, submitting it to a newspaper for publication or sending it to a radio or TV station.
In essence, the measure is designed to ensure that the candidate being attacked has some opportunity to respond to whatever last-minute allegations are raised.
Reagan said that, legal issues aside, that may have made sense when all campaigning was TV, radio, mail and newspaper.
“When this statute was first written there weren’t such mediums as Twitter being widely used,” she said. “There weren’t mediums that were delivering news in an instant fashion.”
And Reagan said there is evidence that the targets actually “know about the timing and even the content of some of these mail pieces before they get their notification.” So, she said, getting a piece of certified mail days later is meaningless.
More to the point, Reagan said complaints her office has gotten show that the law is not being used as a shield by politicians being attacked but instead “as a ‘gotcha’ by targeted politicians who really have not been hurt by those late campaign mailings or commercials.” She said it enables the target to file a complaint against the sender and perhaps get a fine imposed.
“But it’s not funny anymore,” Spencer said.
“It is problematic when the executive branch of government starts deciding which laws it’s going to enforce and which it’s not going to enforce based on their own notion of what constitutes constitutionality,” Hogan countered. “That’s what courts are for.”
Legal questions aside, Collins said that’s not Reagan’s call to decide a statute has outlived its usefulness.
“That’s a question for the Legislature or the voters,” he said.
For example, he noted Reagan’s concern that the law requires notice to be sent by certified mail. She said some other method might actually provide quicker notification to the target.
“These are policy questions,” Collins said. “Policy making typically is done by the legislative branch and not by the executive branch.”
Spencer, who is an attorney, disagreed. He said while the statute has been amended since the 2003 appellate court ruling, the problems the judges found at that time remain on the books. And that, he said, makes it unenforceable, even if there has been no challenge, much less court ruling, since then.
“We don’t think we should just sit in the back seat and wait for everything to play out,” Spencer said. “We think we have an equal role.”
Nor does he believe it can be updated or fixed.
“We think the better course of action is for the Legislature just to fall on its sword and get rid of the statute next session,” Spencer said.
“But in the meantime, what does an executive do when they’re faced with enforcing a law that they know to be unconstitutional?” he continued. “We think we’re on firm legal ground to, at minimum, warn the (political) community those complaints are not going to have a very good reception when they get up here.”