As next year’s statewide elections get closer, several Arizona agencies are locked in a bitter feud to determine who has the power to police so-called “dark money” groups that spend millions to influence races.
The dispute is playing out in complicated legal tit-for-tats, but the heart of the fight is simple: Should the office of Secretary of State Michele Reagan or the Arizona Citizens Clean Elections Commission, a voter-created body, play the role of enforcer? And is there room for two policemen?
It's unclear how the dispute will get resolved. Ultimately, courts may have to decide.
On one side, Gov. Doug Ducey’s Government Regulatory Review Council, a body that tries to eliminate unneeded rules, has moved to curtail the commission’s authority to monitor the groups.
Republicans argue the commission has overstepped its bounds and waded into Reagan’s turf.
But the commission, which was created when voters passed the Citizens Clean Elections Act in 1998, contends the act gave them that power. They accuse the state of trying to spurn transparency in elections.
The stakes are high given the growing influence of dark money in races for the Arizona Legislature and statewide offices.
Independent-expenditure groups, also referred to as dark-money organizations, are unlike candidate campaigns and can spend unlimited amounts of money without generally disclosing their donors.
Dispute brewing for years
Tom Collins, executive director of the Clean Elections Commission, said the state’s move is part of a concerted effort to prevent the “only effective anti-corruption and transparency” watchdog in state government from operating.
Tom Collins is executive director of the Arizona Citizens Clean Elections Commission. (Photo: Special for The Republic)
The dispute has festered for years but flared in recent months as the governor’s regulatory-review council decided to quash two administrative rules that outline how the commission can regulate dark-money groups and privately funded candidate campaigns.
Collins said the state doesn’t have the power to do that given the commission is a separate, constitutionally protected agency.
“The commission is efficient, effective and nonpartisan,” he said. “That is something that cannot be said about any other enforcement body in the state. And that makes a difference."
He said the elections commission will still enforce its rules, and could impose fines, against any independent-expenditure groups that don't properly disclose their money spent to influence campaigns.
Reagan’s office, which is charged with publishing the state register of administrative rulemaking, subsequently removed the elections commission’s rules from the books.
Collins and the commission contend Reagan's action breaches a contract between the agencies, and they are threatening to withhold funding for a public-money website her office is creating.
However, Reagan said Wednesday that she’s neutral on the issue. She said her office is in a tough place because the governor’s council and the elections commission have conflicting views of the rule.
“What do you do… when two different government agencies pass rules and regulations that conflict with each other?” she said. “I believe we should just publish what both of them said. I’m waiting for a lawyer to sign off that I’m legally allowed to do that.”
Her office has yet to officially respond to the commission's letter claiming a breach of contract.
(From left) Arizona Elections Director Eric Spencer, Secretary of State Michele Reagan and Gov. Doug Ducey. (Photo: Nick Oza/The Republic)
Not always neutral
But Reagan’s office, through Elections Director Eric Spencer, has called for curtailing the commission's rules on independent expenditures in the past.
Spencer urged the governor’s regulatory-review council to put a check on the agency's powers as far back as January 2016.
In a letter to the council, Spencer stated that the elections commission has engaged “in regulatory mission creep.” He wrote that the commission was “intended to function as a PayPal service” for publicly financed campaigns.
“But nowhere in the Citizens Clean Elections Act is the charge to act (as) an all-encompassing campaign finance super-regulator — especially in a way that conflicts with the secretary of state’s authority,” Spencer wrote.
Gibson McKay, a Republican consultant who has run independent-expenditure groups, said he’s doubtful that the commission can effectively regulate independent expenditures given legal opposition and the “tremendous amount” of money expected to be spent next year.
He said the Legislature and governor have made it clear that Reagan’s office has authority to set rules and regulations for elections.
“Clean Elections is wading into an area (in) which they have no place being,” McKay said.
'Obsession' with secrecy?
However, other political observers say the flood of anonymous money into state races makes the presence of a nonpartisan watchdog agency more necessary than ever.
“It could not be more important today, in an era when we are opening up our political systems to whoever is willing to pay the most,” said Joel Edman, executive director of the Arizona Advocacy Network, an open-government advocacy group.
“Why is there this obsession with keeping this information out of the hands of voters?”