A judge won’t let the state enforce a law opening the door for more “dark money” in campaigns while it appeals his ruling that the statute is unconstitutional.
In a new ruling, Maricopa County Superior Court Judge David Palmer rejected claims by attorney Tim Berg, representing the state, that it would be too confusing for organizations that the Legislature exempted from campaign finance laws in 2017 to now have to obey those laws for the 2020 election. Berg said the changes should remain in place while he asks the Court of Appeals to review Palmer’s original findings declaring the law void and unenforceable.
Palmer instead sided with attorney Jim Barton, representing the Arizona Advocacy Network which challenged the 2017 law. He told Palmer it would be wrong to run the 2020 election under a law that, at least according to the judge, is unconstitutional.
“Without the usefulness of the act in place, certain entities will have carte blanche to illicitly influence elections,” Barton argued.
And attorney Mary O’Grady, representing the Citizens Clean Elections Commission, the agency whose powers the 2017 law sought to curtail, said allowing the state to run the 2020 elections under the law that Palmer voided would deprive voters of information “about entities spending money to influence Arizona elections.”
At the heart of the legal fight is a measure approved by the Republican-controlled Legislature and signed by Gov. Doug Ducey to create new exceptions to laws that require public disclosure of what people spend seeking to affect the outcome of elections.
One provision of the law allowed political parties to spend unlimited dollars on behalf of their candidates without disclosing the expenditures. It also would have allowed people to pay the legal fees of candidates without it counting against the legal limit of how much financial help they can provide.
But the most significant part of the 2017 law stripped the voter-created Citizens Clean Elections Commission to police and enforce campaign finance laws against all candidates and their donors, not just those who run with public financing. That undermined rules adopted by and enforced by the commission to require any group that is spending money to influence campaigns to publicly disclose which candidates they are supporting or opposing, and how much they are spending.
Palmer ruled in December that the Legislature was powerless to make the change given that it was voters who created the Citizens Clean Elections Commission and its system of voluntary public financing for statewide and legislative candidates.
Berg is appealing. But in the meantime he wanted those changes approved by the Legislature to remain in place, arguing that blocking the provisions that Palmer voided would cause “confusion” among candidates and their attorneys. As proof, Berg pointed out that the Secretary of State’s Office published a campaign finance guide for candidates in September 2018, three months before Palmer’s ruling, a guide that included the provisions that the judge voided.
Barton, however, said there was plenty of time following the December ruling for the state to update its guidance for candidates and yet nothing has been done. And he noted that the primary election is still a year away.
“Thus, the secretary (of state) has ample time to correct the guide and make it available to the public,” Barton told the judge. Conversely, he argued, keeping the exemptions in the 2017 law in place, the ones Palmer said were illegally enacted, harms the public by denying them information about campaign spending.
The 2017 law, known as SB 1516, was championed by then-House Speaker J.D. Mesnard, R-Chandler. He said that existing laws interfered with the rights of free speech and people to participate in the political process with their dollars without giving up their right of privacy.
But the flip side of that, according to foes of the law, is that any decrease in disclosure requirements denies voters at least some indication of who is spending money to try to influence the outcome of campaigns. That, they said, is why voters in 1998 gave broad powers to the commission to police campaign contributions.
Palmer, in his December ruling, agreed. In fact, he took a slap of sorts at state lawmakers for failing to enact such comprehensive regulations themselves.
The judge pointed out that the people who crafted the Arizona Constitution directed the first state Legislature to “enact a law providing for the general publicity of campaign contributions to and expenditures of campaign committees and candidates for public office.”
“The Legislature has never complied with that directive,” Palmer wrote. He said it took approval of the Citizens Clean Elections Act to even begin to comply.
One of the key provisions of that 1998 law, was that requirement for “independent expenditures” on behalf of or against candidates to be disclosed.
Since voters approved the law, the commission has pursued several high-profile cases against groups that have bought TV commercials attacking candidates with no disclosure of who was financing the effort. Barton said that Palmer’s ruling “confirms the Clean Elections Commission’s authority” to continue enforcing those requirements.
“We believe that that’s the answer to fighting dark money,” he said.
Bipartisan Dark Money
The other key argument against SB 1516 concerns the provision to allow political parties to spend unlimited amounts of money on behalf of their candidates without disclosure.
In the 2016 election, for example, the Arizona Republican Party ran TV commercials on behalf of the re-election efforts of Gov. Doug Ducey and Attorney General Mark Brnovich. But the exact amount they spent on behalf of each was never reported because of the exemption created in the 2017 law.
This became particularly significant this year because Ducey raised money not only directly for his own campaign but also took corporate and large-dollar donations − donations he could not accept personally − through a separate Ducey Victory Fund committee. And any dollars Ducey could not keep himself were given to the Arizona Republican Party, which then was free to use it to help the governor’s reelection, all without detailing how much was spent on his behalf.
This wasn’t just a practice of one party.
The Arizona Democratic Party also put $3.3 million into the effort to elect Katie Hobbs as Secretary of State. But that figure became public not through campaign finance laws. It was only because iVote, which promotes the election of Democratic secretaries of state, the group that gave the money to the state party to promote Hobbs, put out a press release detailing the expenditure.