There has been a disturbing trend lately of government officials – elected and appointed – straying so far beyond their agencies’ mandate that they’re encroaching on Arizonans’ constitutionally protected right to free speech.
First was the Citizens Clean Elections Commission, which last month sought to adopt new rules that would bring under the commission’s regulatory oversight candidates who don’t participate in publicly funded elections, as well as independent entities that support the election or defeat of candidates. This would be a vast overreach of authority. Secretary of State Michele Reagan is already Arizona’s chief elections officer; we don’t need overlapping regulations by multiple agencies.
The commission is currently circulating for public comment a new proposal that seeks to address some of the concerns that a broad coalition of members of the business community raised. We remain hopeful that the commission will choose to stick to regulating candidates who opt to rely public funding to conduct their campaigns, rather than attempting to engage in activities already managed by the secretary of state.
Now the Arizona Corporation Commission is getting in on the act. The ACC regulates utilities, railroad and pipeline safety, and securities. It has nothing to do with the regulation of political speech and elections.
Yet on the ACC’s September 8-9 meeting agenda is a docket opened by commissioners Susan Bitter Smith and Bob Burns that would inject the ACC into the regulation of electoral politics. Commissioners Bitter Smith and Burns are requesting that “public service corporations and unregulated entities that appear before the commission agree to voluntarily refrain from making contributions in support of or in opposition to Corporation Commission candidates.” The two commissioners justify their request by citing the public’s apparent diminished opinion of the ACC that results when companies support or oppose ACC candidates.
But just how “voluntary” is this request of businesses not to engage in free speech? The letter by the commissioners acknowledges that businesses have a First Amendment right to support or oppose candidates, that there is no indication that entities with business before the ACC have failed to comply with campaign finance laws, and that campaign finance issues are not in the ACC’s purview. However, the letter also says that the ACC will consider whether an audit of public service corporations is warranted and whether it will request financial information from unregulated entities.
The implication is clear: Muzzle yourself or face an audit.
The proposal by Bitter Smith and Burns seeks to expand the reach of the ACC far beyond anything contemplated by the state Constitution and, much as we saw in the case of the Citizens Clean Elections Commission, ventures into a regulatory space already under the oversight of the secretary of state and, for enforcement matters, the attorney general. Even more disturbing about the action by Bitter Smith and Burns, however, is the significant impact the ACC can have on a business’ bottom line. Once again, a broad coalition of business organizations has weighed in in opposition to this proposal to chill constitutionally protected free speech.
Whether it’s the unelected Clean Elections Commission or the elected Corporation Commission, commissioners in either body can petition the Legislature or the secretary of state if they believe that state campaign finance laws need to be reformed. They cannot, however, rewrite campaign laws themselves.
These commissions’ exploration of areas outside their mandates has been an unfortunate waste of time and energy. Both commissions would be best served to permanently set these issues aside and get back to their core missions.
-Glenn Hamer is the president and CEO of the Arizona Chamber of Commerce and Industry