Thursday, June 11, 2015

Worth reading Robb

Give Bob Robb credit for muscling through the issues involved in the Clean Elections Commission's enforcement action against the Legacy Foundation Action Fund (LFAF). 
Bob's column does as much as he can within his existing convictions to acknowledge the policies behind the voter-approved Clean Elections Act. 

A few points that challenge the narrative (and because even Bob can't capture everything in 700 words). 

First, Bob asserts that the commission was granted authority over privately-financed candidates and independent expenditures "[t]o implement the matching funds provisions" of the Act. The specific kind of matching approach the Act used was struck down in 2011, Bob notes. But the authority of the commission in this case is  not related to public, voter financing at all. That's what the Act says. And, of special importance, it's what the Arizona Supreme Court said when it looked at the question back in 2004.  The court explained that the commission "would retain full enforcement authority and responsibility as to the... provisions" that apply to independent spenders like LFAF "even if the voters abolished public financing of political campaigns." The obligation to enforce these laws was deemed "paramount."

Other similar challenges to the commission's authority have been dismissed as well. 

So the Commission's actions are firmly grounded in law and precedent. 

Next, Bob makes a lot of the potential for contradictory findings by the commission vs. the secretary. Here he acknowledges, but underplays, the amount of conflict potential in the system the secretary advocates itself.   

But to unpack that you have to understand a central fact of campaign finance law in Arizona that Bob elides-- the Secretary of State doesn't truly enforce anything. Rather she can do one and only one thing-- refer matters to the attorney general for actual enforcement.  (The SOS, example, has no power to subpoena documents or testimony, but the commission does).

If the attorney general decides to issue an enforcement order, the case can be appealed to an administrative law judge who refers the case back to the AG. Appeals to superior court and the court of appeals may follow and, in extraordinary cases, the state supreme court may grant a petition for review. That's an awful lot of folks who have to agree. A mere disagreement between the SOS and Clean Elections is just a tail on that dog.  

Not that I agree or concede this point in any way. It simply illustrates that, under Bob's thesis, Clean Elections is not the issue. 

(One irony is that all of this due process is to protect independent spenders' rights. Arguing that the very protections they are afforded is burdening speech is kind of a tough argument to wrap your head around. And even Citizens United rejects that proposition that campaign spending is a law-free zone. But SOS's attorney the Goldwater Institute certainly doesn't ).  

Further, as Bob hints at, the SOS/AG process is rife with politics. Oh, and conflicts and potential conflicts galore.  So, whatever the SOS's point in inveighing against the Commission, it goes double for whomever carries that title or the mantle of the AG. 

(Yet another irony is that Secretary Reagan was prime sponsor of legislation to transfer all campaign finance authority to the commission back in 2013). 

Evidence of these kind of situations where the commission goes one way and another body goes another is scant. For instance, in 2014 the commission and the AG's office did a joint conciliation with a different out-of-state dark money group over allegations that implicated the Clean Elections Act and other campaign finance laws. During the same cycle, the SOS and the commission agreed there was reason to believe a violation may have occurred in the Horne-Beattie matter. 

Finally, who enforces the Clean Elections Act if not the commission? Arizona revised statute section 16-941, which the commission is enforcing in LFAF, is in Article 2, of Chapter 6, of Title 16.  That's where the Clean Elections Act lives, if you will. Section  16-924 specifically excludes the SOS from addressing those provisions. So this purported conflict dissolves as a matter of law. 

So where does that leave things? For me the question still remains why is this Secretary Reagan's fight? She's not the enforcer, contradictory decisions are equally if not more possible in the system she purports to defend, and the politics of that system are obvious. Plus the courts have already ruled on this. You have to scratch your head.