Former AG revs up initiative to end ‘dark money’

The Open and Honest Coalition, led in part by Terry Goddard, announces two ballot initiatives, one to disclose dark money and one to open primaries, on Jan. 21, 2016. (Photo by Rachel Leingang, Arizona Capitol Times)
Former Attorney General Terry Goddard (Photo by Rachel Leingang, Arizona Capitol Times)

Armed with volunteers and 15 months until a deadline, former Attorney General Terry Goddard launched a new bid Tuesday to end “dark money” anonymous donations to Arizona political campaigns.

The initiative would create a “right to know” provision in the Arizona Constitution requiring public disclosure of the name and address of any individual who has put at least $5,000 into influencing the outcome of any election, whether directly or indirectly.

It would apply not just to donations directly to candidates, which essentially already is covered, but also donations to political action committees which then make their own contributions to candidates solely in the name of the group.

But the more significant provision applies to so-called “social welfare groups” that now can spend unlimited amounts of money on TV ads, mailers, billboards and phone calls both for and against candidates and supporting and opposing ballot measures. That would override a law approved by the Republican-controlled Legislature exempting those groups from having to disclose their donors.

Goddard tried a very similar measure two years ago, gathering about 285,000 signatures.

But that was challenged by foes who got a trial judge to throw out the signatures of paid circulators who did not show up in court. That left the petition drive short of what was needed to make the ballot.

This time, said Goddard, things will be different.

First, he plans on using an all-volunteer army. That curtails the opportunity for legal challenges for failing to meet a new host of requirements that now apply to paid circulators.

What else is different is that those volunteers have 15 months — until July 2, 2020 — to gather the 356,467 valid signatures needed to put the measure on the general election ballot that year. Goddard figures that should be enough, given that the volunteers working last time gathered 150,000 signatures in just five months.

That, however, won’t stop the challenges expected from the same groups that filed suit last time, including Americans for Prosperity, an organization that is part of the Koch brothers network, and the Free Enterprise Club.

Vince Leach
Vince Leach

And state Sen. Vince Leach, R-Tucson, who has been at the forefront of efforts to protect anonymous donations, said he will do what he can to convince voters that allowing the government to gather that information, even if it is for public disclosure, is a bad idea.

Leach acknowledged there is evidence that at least some voters want to know who is putting money into campaigns.

In Tempe, a mandatory disclosure measure was approved by a 91-1 margin. But the legal fate of that is unclear as Leach has asked Attorney General Mark Brnovich to rule that ordinance runs afoul of Leach’s own bill to preempt local regulations of that kind.

Phoenix voters approved a similar plan with about 85 percent in favor. That has been held up while Gov. Doug Ducey, a long-time foe of expanded financial disclosure laws, exercises his constitutional right to review that public vote.

Leach, for his part, brushed aside those two votes, suggesting that the voters in those two communities are not reflective of the rest of the state.

“You don’t have that type of election in SaddleBrooke,” he said, the largely Republican housing development in Pinal County in his legislative district. “No one would run in there because there you would get 95 percent – or maybe even 99 percent – saying, ‘Absolutely not. You don’t have a right to know.’ ”

What the initiative seeks to pierce are the records of groups classified by the Internal Revenue Service as “social welfare organizations.” They can spend up to half of their revenues influencing political campaigns.

Arizona law does require them to report their expenditures. But the source of the cash is exempt.

Antonin Scalia
Antonin Scalia

That is what allowed such groups to put $3.2 million into the 2014 campaign on behalf of Republican candidates for Arizona Corporation Commission without disclosing who provided the dollars. Arizona Public Service Co., the state’s largest electric utility, would neither confirm or deny it financed those efforts.

None of that would be possible if voters approve what Goddard hopes to put on the ballot.

It is crafted so as not to apply to tiny campaign efforts. Only those groups that spend at least $20,000 on a statewide campaign or $10,000 on a local campaign would be covered.

And within that is the requirement to disclose who has put in at least $5,000. Goddard said that it is crafted to prohibit “chain donations,” ensuring that the mandate applies to the original donor, even if the cash has been run through several different organizations before winding up being spent to influence an Arizona election.

Enforcement would be left to the Citizens Clean Elections Commission.

The initiative also contains something else: language designed to protect the commission’s ability to enforce the disclosure requirements.

Last year voters approved a measure which put the commission under the purview of the Governor’s Regulatory Review Council. That gave the panel, made up entirely of Ducey appointees, the power over the commission’s rules.

The initiative spells out that oversight does not extend to the commission’s ability “to promulgate rules or take necessary actions” to enforce the financial disclosure law if voters approve.

Leach said this is about more than unveiling who is behind political campaigns, saying that declaring the government can enforce some sort of “right to know” would set a bad precedent.”

“That opens up a whole host of problem areas for government intrusion,” he said. Leach said there’s a long history of protecting anonymous political speech, going back to the Federalist Papers which were written to convince states to ratify the new Constitution.

Leach also cited the historic 2010 Citizens United ruling by the U.S. Supreme Court saying that political spending is a form of protected speech under the First Amendment. That ruling said groups, including corporations and labor unions, can spend money to influence elections.

But he conceded nothing in that ruling bars governments from enforcing disclosure requirements. In fact, in a subsequent ruling, Justice Antonin Scalia wrote that “requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”

“I don’t ever remember saying that I was always in total agreement with Scalia,” Leach responded.

“I believe I do not think the government has that right to know,” he continued. “And I would be very much against, and I will work very much against anything that says the government has the right to know.”

Leach is not the only Republican who has sought to protect anonymous donations.

During 2016 debate on the non-disclosure legislation, then-Rep. J.D. Mesnard, R-Chandler, said voters do not need to know the source of the funds paying for the media campaigns.

“A message is a message, said Mesnard, now a state senator. “If it’s important to you to know who’s behind the message and you don’t know who’s behind the message, then disregard it.”

And Mesnard said during that debate that sometimes too much disclosure can be a bad thing.

“The end result is a registry of every person and who they donated to,” he said. “I think that is entirely dangerous.”

House passes measure to keep cities from banning ‘dark money’

State lawmakers voted Tuesday to block any efforts by Arizona cities and counties to find out – and inform the public – who is funneling money into local elections through nonprofit groups.

On a 33-25 margin the Republican-controlled House voted to prohibit local government from requiring  organizations declared to be tax-exempt by the Internal Revenue Service from registering as political action committees, even if they are putting money into races.

More to the point, it would preclude any requirement that these so-called “dark money” groups identify donors. And it would bar local governments from auditing the books of these groups or requiring them to respond to subpoenas, even if there were allegations that they were violating campaign finance laws.

HB 2153 now goes to the Senate, which also is dominated by Republicans.

The legislation comes two years after lawmakers voted to grant more anonymity to donors to organizations that are putting money into independent campaigns for statewide and legislative races. Foes of disclosure have now turned their attention to local races.

Rep. Vince Leach (R-Tucson)
Rep. Vince Leach (R-Tucson)

Rep. Vince Leach, R-Tucson, who has championed this measure, conceded that no Arizona community has so far sought to impose such reporting requirements on nonprofit organizations. Instead, he argued, it was designed to get out in front of the issue before some community could approve measures like one that exists in Santa Fe, N.M.

But the legislation does not exist in a vacuum. It comes as voters in Tempe are set to vote next month on a proposal to require that any group spending at least $1,000 on independent campaigns to disclose their donors. HB 2153, if signed into law, would preempt such an ordinance.

At the heart of the debate is a contention by Leach and other supporters that requiring disclosure could result in individual donors being harassed.

Rep. Ken Clark, D-Phoenix, said the measure is badly flawed.

He said an organization can qualify for nonprofit status from the IRS if it does not spend a majority of its funds to influence elections. But Clark said that has no meaning when there are major donors on both the Left and Right who have deep pockets and still can spend multiple millions of dollars to influence elections without endangering that nonprofit status.

Clark said this isn’t just about disclosing on TV commercials and mailings what group has paid for it, along with the ability to find out who is behind that group.

“It’s about the money that that organization, many organizations can spend to intimidate lawmakers at all levels,” he argued.

“It is very cheap,” Clark said. “And now it’s going to be even easier with this bill to hide it.”

But the real issue comes down to what most Republicans and multiple business groups contend is the right of individuals and businesses to influence elections anonymously.

The lone exception to that all-GOP support during Tuesday’s debate was Rep. Noel Campbell of Prescott.

“I believe in anonymity,” he told colleagues. And Campbell said he believes that people have a right to give however much they want to political campaigns.

“But I also believe a citizen should take a step forward and own what he believes in,” he said, saying that’s why he supports disclosure. Campbell said lawmakers should do what they can to fight “dark money.”

“I think it pollutes our system,” he said. And Campbell said he disagrees with the historic 2010 U.S. Supreme Court decision which opened the door to corporations having the right to spend money to influence elections.

“If it was up to me, only a living human being could give money,” he said.

Of some note is that both sides cited the writings of Justice Antonin Scalia.

“There are laws against threats and intimidation,” the now-deceased justice wrote in that 2010 ruling, saying that allowing corporations to give does not mean that they — or anyone — have a constitutional right to do so anonymously. “Requiring people to stand up in public for their political acts foster civic courage, without which democracy is doomed.”

But Rep. Maria Syms, R-Paradise Valley, hung her vote to allow donors to hide their identities on comments Scalia made two years later while discussing that earlier ruling and political commercials.

“I don’t care who is doing the speech, the more the merrier,” the justice said in 2012.

“People are not stupid,” Scalia continued. “If they don’t like it, they’ll shut it off.”


James Beene: Last stop on the bench


Newly-appointed Arizona Supreme Court Justice James Beene gravitated toward his profession in the same way a lot of young kids do — he fell in love with a book.

He reminisced about reading a popular piece of literature as a kid and how it shaped him into a legal career. Several years later, he reached a milestone he didn’t expect — to sit as a justice on the Supreme Court, and a historic appointment at that.

When Beene was appointed to the Maricopa County Superior Court, he became Gov. Jan Brewer’s first judicial appointment. He helped Gov. Doug Ducey make history with his fourth Supreme Court pick, and he is now just the second Hispanic to sit on the highest court in Arizona.

Beene still has two months before his first case, but he is definitely excited about this new gig.

You recently just got appointed. Can you tell me about the process this time around?

There was obviously some word getting around about [Justice John] Pelander planning to retire. When I heard, I contemplated wanting to move. It was a normal application process. I contacted people – the same ones I contacted for the Court of Appeals job. It had only been under two years since my appointment to the Court of Appeals.

What was different about this time?

There wasn’t really all that much in variation.

What type of questions did the governor ask you?

Questions about judicial philosophy, mostly. How would I go about deciding cases? What do I do in my off time, and where I get my news from? Standard interview questions.

And where do you get your news from?

A wide variety. I like Real Clear Politics. I’ll read anything from Huffington Post and Vox to The Washington Times. A very broad spectrum. I try to stay clear from TV news. It’s so vitriolic. So, I like a broad spectrum of reporting.

There was some controversy in the Legislature this session regarding how Ducey makes his appointments when it comes to diversity. How important is that in the judicial branch?

It’s constitutionally mandated to consider a diverse bench. The commission has to look into all qualifications, along with racial and ethnic backgrounds, diversity of experience and geography. There are a lot of layers of diversity the governor should look at. All entities do a very good job of vetting diversity.

Do you think it’s fair for Senator Martin Quezada to vote no on all candidates to the Commission on Appellate Court Appointments who do not represent a diverse background?

I don’t know if I really want to opine what senators say on the floor. We have a very healthy separation of powers and I know Quezada does a good job for his constituents and I wouldn’t want to take a position on whether that’s good or bad. He’s a fine public servant and we will leave it at that.

The first time you applied for the Supreme Court, you had just one year on the trial court. Why did you apply so early?

That was for Justice (Michael) Ryan’s vacancy. He had a unique background that he was a trial court judge and I believe at the time that there was not going to be anyone on the court with Superior Court experience and I think that’s definitely needed on the Supreme Court. The genesis of all our cases come from the trial court and I think it’s critical that at least some of the justices have trial court experience. With Justice Ryan’s retirement, that left a void in that regard and I wanted to make sure the commission and governor would appoint someone that did have some trial judge experience.

What do you think makes a good judge or justice?

Someone that can divorce their own personal feelings and opinions out of the case before you. Justice [Antonin] Scalia said it’s a poor judge that agrees with all his prior decisions. You have to come to grips with the fact that you’re not going to like all the decisions you make; and if you do like them, then you’re not that good of a judge. It’s easier said than done, because in the midst of a case, you do get invested.

Do you think the Supreme Court will be your final job?

I’m hoping that this is it. This is beyond my wildest expectations of a job, and who I get to work with, and the cases I will decide for 15 or so years; so this will probably be the swan song for my professional career. I don’t see myself retiring. I don’t know if my wife will let me come home any time before 70.

Why did you decide to get into law? 

I remember my mom reading to me – or it was assigned in sixth grade, but we read it together – “To Kill A Mockingbird.” And that was just a pivotal piece of literature in my life. The whole story of Atticus Finch and the trial – something about that just grabbed me. That we had this system – civil or criminal dispute – you went in this arena, you put on evidence, arguments, and either a judge or a jury made a decision. And I just found that fascinating, and the more I read, the more I saw on TV, the more I was inclined to gravitate toward professional law. A lot of lawyers and judges have a history background. A lot of our great politicians and presidents are lawyers. It was just a natural kind of pull to that area.

I’m also a big fan of “To Kill A Mockingbird” and the movie, as well. Are there movies or shows you watch or avoid that portray law in any way?

They are fun to watch and I do watch them from time to time, but I have to say that at a certain point if something is just absolutely not how it happens in real life then I just start to laugh or make comments. I understand that it’s entertainment, but I’ve done long jury trials and there are times where I was asking questions of experts and it was about as exciting as watching paint dry or grass grow, but it had to be done. That wouldn’t fit into an hour-long “Law & Order SVU.” I get that.

As for the ones I watch … “LA Law” was a big thing in the ‘80s, but going back to when I was just thinking about what a lawyer even was, there were the “Perry Mason” reruns. So, I remember watching that with my mom. Those were litigators and I became a litigator. So, I can’t say that those didn’t impact me in some way. I wanted to be in the courtroom where I had seen and read where the action definitely was.

There is no Irony in The Equal Rights Amendment


Cathi Herrod, our modern day Phyllis Schlafly, is correct: public policy often sounds better in theory than it plays out in reality. Which is why it’s essential that we pass an Equal Rights Amendment. As Ms. Herrod points out, “who can disagree with equal rights for women? No one.” She lists numerous laws that prohibit discrimination on the basis of sex. But as she points out, laws and policies don’t always “live up to their names.”

The U.S. Constitution prohibits discrimination based on race but not sex. Women’s equality is dependent on legislation which can be repealed or diminished with a pen stroke; women’s rights are at the whim of elected officials. Former Supreme Court Justice Antonin Scalia confirmed this. A Constitutional Amendment is needed.

Tammy Caputi
Tammy Caputi

We are one of the only developed nations that does not have gender equality enshrined in our Constitution. It is our foundational document and it sends a powerful message. Women are over half of this country and should never have been excluded in the first place. The 14th amendment promises “equal protection of the law”, but was passed after the Civil War with no intent or instance of including sex. It doesn’t protect women from pay discrimination, pregnancy discrimination, or gender-based violence. If women were protected from discrimination by the 14th amendment, we wouldn’t have needed a 19th amendment for the right to vote. An ERA might not solve all our problems, but it would provide a legal framework to address them.

Opponents of women’s equality have historically used scare tactics like Herrod’s to thwart its passage. The ERA states: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” It does not say there is no biological difference between men and women; it says you can’t deprive a person of their legal rights based on their sex. There is no reason the law would “conflate equality with sameness.” Same sex spaces would always be allowed to exist because we have a constitutional right to privacy. Cathi Herrod is a lawyer; she knows this.

Which brings us to her real issue: the idea that the ERA could be used to remove abortion restrictions. The right to terminate a pregnancy is legal in the United States, protected by our constitutional right to privacy, not equality. Our courts should be prohibiting unconstitutional restrictions on the right of women to make our own private decisions, regardless of an ERA.  Why should a woman’s private medical procedures be treated differently than that of a man? Women are free and sovereign citizens of the US, just as men are.

Yes, the ERA deadline for ratification has passed. But Congress can vote to change the date by which ratification must be completed. Furthermore, the 27th Amendment took 202 years to ratify. Article V’s text requires that two-thirds of both Houses of Congress pass a proposed amendment, and that three-quarters of the states ratify the amendment as it passes in Congress.  From a strictly textual viewpoint, the terms would be satisfied, and the Amendment would have to be accepted as a valid addition to the Constitution.

The consequences of passing the ERA are as intended: women would be granted the rights and privileges promised by The Declaration of Independence that men have enjoyed for centuries. There would be more equality and justice in the lives of millions of Americans, both women and men. It’s time to extend democracy to all American citizens.

It’s 2019 and we can’t even get a hearing on including women in our constitution? Sickening.

Tammy Caputi is a local business owner and mother of three young children.