Arizona Advocacy Network

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PHOENIX -- A judge has thrown out an effort by foes of public financing of elections to effectively gag members of the Citizens Clean Elections Commission and its director.

Maricopa County Superior Court Judge Mark Brain said the claim, filed by those seeking to convince voters to eliminate public funding in November, flies in the face of long-settled First Amendment principles of free speech.

"As a general matter, government employees are entitled to speak to whoever they want if they wish, as long as they do not inappropriately undermine their employer," he wrote. And Brain, noting that the challengers are trying to stop something they fear might occur, said "prior restraint on speech are almost always inappropriate."

And he specifically rejected a request to keep the commission from communicating with other groups that support public financing.

"The court is unaware of any other situation in which a person or entity has sought to preclude a government commission from communicating with the citizenry," Brain wrote. "That's not how government works."

The ruling, made public Thursday, is a setback for former state Sen. Jonathan Paton and his No Taxpayer Money for Politicians organization. He had sought a court order restricting the conduct of the commissioners and director Todd Lang contending they were illegally using public funds to influence an election.

Paton is at the forefront of an effort to put a question on the November ballot to constitutionally ban public funding of election campaigns.

The law allows -- but does not require -- candidates for statewide and legislative office to get public funding if they agree not to solicit private donations.

The amounts available depend on the office sought.

Paton reacted angrily to the ruling. He said Brain got it wrong and vowed to appeal.

"By their activity, they're clearly advocating for the defeat of the ballot measure and support for their agency," he said. "If Jan Brewer or Tom Horne or some other statewide elected official were to do the same thing with state money, there would be outrage among liberals."

Paton said the commission's own finances show that it is spending money in a bid to convince voters to reject the ballot measure.

"They massively spend money because they know that they're going to have to face an election," he said.

"They spent more in advertising in the last year than in the first four year of the program combined," Paton continued. "I just love the willful blindness in service to what essentially is socialism."

The commission does not have specific figures on advertising but does on outside professional services. Colleen McGee, the commission's deputy director, said that mainly includes money paid to a public relations firm for advertising.

In the period from 2000 through 2003 the commission spent nearly $1.7 million on outside services.

The figure was $1.1 million last year and $2.7 million the year before that.

It is not unusual for there to be larger expenses in even-numbered years when there are elections. For example, the outside consultant spending was $825,000 in 2009 but $3.2 million in 2008.

Lang acknowledged spending levels are higher now than a decade ago but said there's a good reason for that.

"Once we started doing television ads to try to increase our reach and contact more voters, obviously the expenses went way up," he said. But he denied that the outreach is geared to the ballot measure, which has been discussed for about two years.

"We ran the education program years before the repeal (effort) started," Lang said.

That campaign has touted the fact that public funding enables some people to seek office who would otherwise not have the financial ability, either through personal wealth or gathering donations from individuals and special interests. But Lang argued -- and the judge agreed -- that what the commission is doing fits within its broader voter-approved mandate to "encourage citizen participation in the political process."

Brain, citing that requirement, also rejected a request by Paton and his organization to bar the commission from conducting polling about the commission or about ending or promoting public funding for campaigns.

"Conducting surveys so that the commission can learn how to better encourage voter participation is one method of fulfilling that directive," the judge wrote.

Lang took a slap at Paton and others for their bid to limit the activities of the commission, especially the ability to consult with other groups that support public funding of campaigns.

He noted that challengers of public financing have claimed that giving public money to candidates affects the First Amendment rights of others who choose to run with private financing. That is because the government is acting as an equalizer.

"It's odd that that these plaintiffs who claim to be concerned about the First Amendment rights are trying to silence folks and silence speech and trying to stop us from talking to folks who are interested in Clean Elections," he said.

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