Group tries to dodge fine for campaign finance law violation


A group that spent $260,000 attacking a 2014 foe of Doug Ducey in his first gubernatorial race is trying again to escape paying a fine for violating state campaign finance laws.

Attorneys for the Legacy Foundation Action Fund contend that the Citizens Clean Elections Commission lacked the power to impose a $96,000 fine for the commercials targeting former Mesa Mayor Scott Smith. They say there was no proof that the ad was done to advance the political fortunes of anyone else in the Republican gubernatorial primary.

Beyond that, the lawyers contend that the commission lacks the authority to enforce the campaign finance laws.

Christopher Whitten
Christopher Whitten

So far that argument has not held water. Maricopa County Superior Court Judge Christopher Whitten ruled in August that the lawyers for the fund were misreading the law.

Now the fund is seeking intervention by the state Court of Appeals.

This is actually the second time the Legacy Foundation Action Fund has challenged the ability of the commission to police campaign funding. An earlier claim was thrown out by the Arizona Supreme Court after the justices ruled that the fund waited too long to appeal the fine.

But in that ruling, Justice Clint Bolick said the group was free to pursue other, unspecified legal challenges. That led to the current litigation.

The case stems from a commercial that ran in early 2014 when Smith was pursuing the Republican gubernatorial nomination.

Produced by the Legacy Foundation Action Fund, it noted that Smith, who was mayor of Mesa, also was president of the U.S. Conference of Mayors. More to the point, it focused on some of the stands the conference had taken.

“They fully endorsed Obamacare from the start,” the commercial said. And it said the conference supported the Obama administration’s efforts to regulate carbon emissions and “backed the president’s proposal to limit our Second Amendment rights.”

On the screen were photos of Smith placed next to pictures of a smiling Obama.

Jason Torchinsky, one of the attorneys for the fund, argued there was nothing improper about the commercial.

More to the point, he said it was not designed to influence the election but simply to educate Arizonans about Smith. Torchinsky noted that the ad made no reference to Smith’s race against Ducey nor even to Smith’s status as a candidate.

The Clean Elections Commission, however, concluded otherwise, ruling that its true purpose was to affect the GOP gubernatorial primary. And what that meant, the commission concluded, was that the Legacy Foundation Action Fund, by virtue of attempting to influence an election, was required to publicly disclose the spending, which it did not.

That failure led to the $96,000 penalty – a penalty that the commission is still trying to get paid.

Now attorneys for the Legacy Foundation Action Fund are raising new arguments about why it was never required to disclose the spending and, by extension, why it doesn’t have to pay the fine.

Some of this is a rehash of the original arguments.

Attorney Brian Bergin argues that the commission, in concluding the purpose of the commercial was to affect the 2014 GOP primary, ignored the plain language of what viewers saw.

“The Arizona advertisement discusses issues: government spending, Second Amendment rights, and the regulation of carbon emissions,” Bergin wrote, while telling viewers the policies “are wrong for Mesa” and urging them to call Smith “and tell him to support policies that are good for Mesa.”

Tom Collins
Tom Collins

But Tom Collins, the commission’s executive director, said that ignores other facts.

He pointed out that the positions taken by the mayors’ organization – the ones that Legacy Foundation said it was educating Mesa voters about – all were taken before Smith became president of the group.

And then there was the fact that by the time the commercials aired Smith was no longer its president. But he was running for governor.

“Taken together, allegations (about Smith) that were not correct, the timing of the ad and other factors, there’s really no way to see the ad as anything other than what it is: an attack ad designed to urge folks to vote against Mayor Smith for the Republican gubernatorial nomination in 2014 because he was ‘Obama’s favorite mayor,’ ” Collins said.

And Whitten said he was legally bound to accept the commission’s findings about the purpose of the commercial.

Bergin also says there’s a key flaw in the commission’s case against his client. He contends that the commission is required to identify the candidate that the commercial was made “by or on behalf of.”

“Legacy is certainly not a candidate and was not working “on behalf of” any candidate,” Bergin said.

Whitten, in the ruling now being appealed, did acknowledge that the commission never identified on whose behalf Legacy was spending the money. But he said there’s no such requirement in the law.

“The statute does not explicitly demand names,” the judge wrote.

The trial judge also rebuffed Bergin’s contention that only the secretary of state has the power to enforce campaign laws and not the commission, which was created by voters in 1998.

“The purpose of the CCEC is to ensure that election laws are enforced without favoritism by partisan officials,” Whitten wrote.

No date has been set for the Court of Appeals to hear the case.