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A judge has slapped down efforts by Gov. Doug Ducey and the Republican-controlled Legislature to create new exceptions to laws that require disclosure of campaign finance spending.
Wednesday’s decision most immediately limits the ability of political parties to spend unlimited dollars on behalf of their candidates without disclosing the expenditures. It also voids some exemptions that lawmakers created in campaign finance laws, like allowing people to pay the legal fees of candidates without it counting against the legal limit of how much financial help they can provide.
But attorney Jim Barton who represented those challenging the 2017 law said the most significant part of the ruling is it restores the right of the voter-created Citizens Clean Elections Commission to police and enforce campaign finance laws against all candidates and their donors, not just those who are running with public financing.
That is significant because the 2017 law stripped the commission of that authority, giving it to the Secretary of State’s Office. But it is the commission that has adopted — and has enforced — rules requiring 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.
Wednesday’s ruling, however, leaves intact the ability of groups established under the Internal Revenue Code as “social welfare” organizations to continue to shield the identities of their donors as long as they report their expenditures. The lawsuit did not challenge that “dark money” exemption.
There was no immediate response from the Secretary of State’s Office, which was defending the law, on the ruling or whether there will be an appeal.
The 2017 law, known as SB 1516, was championed by 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. It was approved on a largely party-line vote and signed into law by Ducey.
But the flip side of that, according to foes of the law, was that any decrease in disclosure requirements denies voters of 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 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 when there have been TV commercials attacking candidates with no disclosure of what group 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.
Barton said one of the biggest loopholes SB 1516 created was the ability of political parties to spend unlimited amounts of money on behalf of their candidates without disclosure.
In just the most recent election, for example, the Arizona Republican Party ran TV commercials on behalf of the reelection 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 contributions, which 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 isn’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.
Attorneys for members of the Arizona Corporation Commission told a judge Tuesday he should block a bid by one of the panel's members to investigate a potential conflict of interest.
Commissioner Bob Burns is asking for an investigation into whether APS or it’s parent company Pinnacle West was the source of millions of dollars spent by "dark money'' groups to elect certain board members that later approved a $7-million-per-month rate hike.
But lawyer David Cantelme, representing Commissioner Andy Tobin, told Maricopa County Superior Court Judge Daniel Kiley there is no legal procedure for commissioners to be disqualified from hearing issues, even if they involve parties that helped them get elected. Cantelme said it's legally irrelevant even if his client and the other commissioners voted on the APS increase, meaning there's no reason to allow Burns to investigate.
Bill Richards, representing Burns, responded that it does not matter whether there is no specific law or rule on disqualification of utility regulators.
He said what Burns wants to protect is the constitutional right of "due process'' of cases being decided by impartial judges. And in this case, Richards said, the commission was acting in a quasi-judicial capacity.
In 2016 APS openly spent more than $4 million to defeat Democratic candidates, helping to ensure the election of Tobin, Boyd Dunn — and Burns himself. But Burns, who reelection bid also was aided with money from solar interests, contends APS didn't really want him but feared him less than the Democrats.
That led to the 4-1 vote by the commission last year, with Burns in opposition, approving the rate-hike deal.
If Kiley decides there is a legal procedure and evidence of conflict of interest, the board’s approval of last year’s rate hike could be void. Kiley said he will rule as soon as he can.
In Michigan, it began with an MBA student’s Facebook post seeking a solution to gerrymandering shortly after Donald Trump’s election. In North Dakota, a coffee group of grandmas decided they’d had enough of corporate government rule.
They and others are now seeing their efforts pay off. Cities and states across the U.S. passed 15 anti-corruption measures Nov. 6 that were made possible by grassroots movements, according to RepresentUs, an activist organization that supports local efforts to improve voters’ and candidates’ access to the political system. The measures cover areas as diverse as automatic voter registration, anti-gerrymandering and the elimination of dark money in local elections. Those strides in fairness, activists say, will only beget more open democracy movements across the United States.
“For decades, voters have been getting more and more frustrated with the establishment status quo in politics and there’s been this overwhelming feeling of hopelessness,” says Joshua Graham Lynn, co-founder and managing director of RepresentUs.
“When voters realize their own power, it bodes well for more of the same in 2020,” he says.
Fifteen of 16 anti-corruption measures that were on the ballots passed Nov. 6, joining eight others approved earlier in 2018. Many of them will take effect before 2020, when Americans will not only vote for president and congressional leaders, but answer a census that will help determine new legislative district boundaries.
Katie Fahey, then a 27-year-old political rookie in Michigan, dreaded Thanksgiving after the 2016 election, knowing that emotions in her politically divided family would be raw. A couple of days after the election, she posted on Facebook that she wanted to address the gerrymandering that left the “purple” state with a heavy majority of Republicans in the state house, despite a roughly 50-50 division of votes between parties.
She indicated that anyone who wanted to help tackle the problem should let her know—she figured she’d find a group or movement to join, she says.
“I didn’t think it would lead to me running a ballot initiative in our state,” Fahey says.
The post attracted the attention of thousands of people, and soon she and a coalition called Voters Not Politicians had secured a ballot measure—Proposal 2—proposing an independent redistricting commission made up of regular Michiganders.
Michigan, where elected legislative officials had traditionally drawn the political boundaries, is known as one of the worst-gerrymandered states in America, according to Michigan’s Bridge Magazine. Fahey herself lives outside of Grand Rapids, an urban area that’s “cracked” into several separate districts, meaning its progressive population was split into more rural, conservative districts that don’t share much cultural or geographical commonalities with the city. It allows conservatives to secure more seats than what demographics might otherwise dictate. Take the Michigan House of Representatives: Though the total vote in 2016 favored Democrats by a half-percentage point, Republicans took 63 of the 110 seats.
To illustrate the situation, Fahey made a promotional video for Voters Not Politicians in which she ran across three legislative districts in the space of 46 seconds.
“If politicians draw their own lines, they target the people they’re scared of losing to,” she says. “Our incumbents will have to really be campaigning for the will of the people and can’t have that unfair advantage anymore.”
The measure’s victory, with 61 percent of the vote, will lead to the establishment of a citizen commission that will host hearings throughout the state and draw new district boundaries for the 2022 midterm election.
“The reality that really struck me throughout this process is that especially in a purple state … if the people didn’t actively choose to organize, this was never going to happen,” Fahey says. “A lot of people are sick and tired of politics as usual, and they’re ready for change.”
The measure’s victory will help reverse decades of incumbent politicians’ consolidation of power, says Jiggy Athilingam, state and local policy manager at Indivisible, an organization that lends support to grassroots political efforts.
“What we’re doing now is we’re undoing some of that damage so we can have a fair, representative democracy,” she says.
Other successful measures to that end include the initiative allowing former prisoners to vote in Florida; anti-gerrymandering victories in Colorado, Missouri, and Utah; and the establishment of publicly funded elections in Baltimore and Denver. North Dakota, propelled by a multipartisan group officially called North Dakotans for Public Integrity but self-dubbed the “Badass Grandmas,” passed a measure containing a full slate of anti-corruption reforms, such as requiring the reporting of large donations, banning the personal use of campaign money, restricting lobbyist gifts, and closing the “revolving door” of public officials leaving office to become lobbyists.
“Voters are completely fed up with what they see in politics,” says David Donnelly, president and CEO of Every Voice, which supports municipal efforts to create publicly funded elections. “[With] the pressure on elected officials to raise money, voters feel completely shut out and don’t think politicians are working for them.”
The past 10 years have seen a dismantling of election integrity, from the Supreme Court’s 2010 Citizens United decision to its 2013 gutting of the Voting Rights Act that facilitated voter suppression measures in Georgia and other states. Trump’s election despite Hillary Clinton’s capture of the popular vote demoralized voters further, organizers say.
“People are more awakened to the crisis,” Athilingam says. “A lot of people came after the 2016 election and started participating in democracy more than they ever have before. Once you start getting in tune with politics … you quickly realize that things are not fair.”
But recent years have seen a surge in anti-corruption progress initiated by voters themselves. They not only tend to increase voter participation, but can alter state legislatures and congressional boundaries and help elect more progressive candidates, says Rita Bosworth, executive director of the Sister District Project, which works to elect Democrats to disproportionately Republican state chambers.
“When there are more things on the ballot that are super important, that helps drive turnout,” which favors progressives, Bosworth says.
So where will these reforms hit next? It’s too early to tell for the most part, Athilingam says, because initiatives haven’t been certified for the next election.
But Albuquerque, New Mexico, and Austin, Texas, are poised to pass public campaign financing in their city halls, Donnelly says, inspired by a system passed in Seattle in 2015. And the expansive progressive flips in state chambers across the country, such as in Virginia in 2017 and New Hampshire this year, could make those state governments more amenable to passing reforms so that activists don’t need to take up the mantle, Athilingam says.
And election fairness appeals to people of all parties, Lynn of RepresentUs says.
“The power of the people in this case and the power of unity and cross-partisanship is going to continue to be what moves the needle [in election integrity],” he says. “The more we move the needle, the more it becomes a mandate for our elected leaders.”
VPA Arizona is an Arizona nonprofit dedicated to amplifying the voices of Arizonan voters through participation in the electoral processes. VPA Arizona will work to increase ballot petition efforts, voter registration and leadership development.