Reagan seeks to intervene in challenge to Clean Elections authority

Secretary of State Michele Reagan is taking her dispute with the Citizens Clean Elections Commission to court, where she wants to intervene in a case challenging the commission’s disputed authority to regulate independent expenditures and traditionally funded candidates.

The Secretary of State’s Office will file a motion to intervene on behalf of Legacy Foundation Action Fund, according to spokesman Matt Roberts. LFAF is suing to overturn a $96,000 fine the commission imposed for alleged campaign finance violations.

Roberts said it would be premature to discuss the details until the Secretary of State’s attorneys file the motion on Thursday. But, he said, “I think it’s safe to assume that we’ve had some concerns with the commission and … what Secretary Reagan believes is getting outside of their jurisdictional box. So I think it’s safe to say that it will be related to that.”

Tom Collins, the commission’s executive director, was critical of Reagan’s attempt to intervene.

“The secretary of state has no dog in this fight. This is a naked attempt to usurp the otherwise undisputed authority of the Clean Elections Commission, and the commission will continue to defend the Legacy Foundation Action Fund appeal,” Collins said.

The Goldwater Institute will represent the Secretary of State’s Office. Roberts said the conservative legal tank and legal institute will represent the office pro bono.

LFAF’s appeal is, in part, based on its assertion that the commission lacks the authority to regulate it. In its appeal in Maricopa County Superior Court, the group argued that the commission’s fine “is an abuse of discretion and arbitrary and capricious in that the commission exceeded its statutory authority when it imposed civil penalties.”

“The commission’s registration and reporting regulation … exceeds its statutory authority as applied to regulation of independent expenditures,” LFAF attorney Jason Torchinsky wrote.

The commission in 2013 asserted authority over non-Clean Elections candidates and independent expenditure committees, which riled conservative advocates of lax campaign finance regulations. Reagan is among the critics who say the commission lacks that authority.

Clean Elections points to state statute as the source of its authority. A provision of the Citizens Clean Elections Act, the voter-approved 1998 law that created the Clean Elections system, states that any person making an independent expenditure in excess of $500 must file reports with the Secretary of State’s Office.

The case revolves around television ads that LFAF ran in March and April of 2014 criticizing then-Mesa Mayor Scott Smith, who was running in the Republican gubernatorial primary. The ads criticized Smith’s tenure as president of the U.S. Conference of Mayors and called him “Obama’s favorite mayor.”

LFAF said the ads were issue advocacy, which is not subject to independent expenditure reporting laws, because the ad did not mention Smith’s candidacy or make any reference to the gubernatorial race. But the commission said the ad was clearly aimed at Smith’s campaign for governor, and that it therefore should have filed as an independent expenditure committee with the Secretary of State’s Office.

An administrative law judge ruled in favor of LFAF in March, but the commission rejected his recommendation. In response, LFAF appealed the fine in Maricopa County Superior Court.

The Maricopa County elections department, which handled the complaint for the Secretary of State’s Office, dismissed a similar complaint against LFAF in July 2014.