Arizona Politics, Where Cash Is King
Feb. 6, 2014 — Ever since the first democracy in Athens initiated its first electoral process, money has played an integral part in framing and formulating the discussion and sometimes the outcomes of elections.
Whether the example be the forefathers of Pericles in Athens or a more contemporary one, the democratic principle is that regular people have a say in the result. But those with resources have always used those resources to help bring about a political outcome they desire.
It’s almost as natural as the best lion ruling the pride.
U.S. history is littered with such examples. Take the 1896 election, as one example. Wealthy industrialists poured millions into William McKinley’s campaign and successfully kept the populist William Jennings Bryan from regulating or nationalizing their industries. Of course, history knows that after McKinley was shot by an anarchist, Theodore Roosevelt would usher in the biggest period of trust busting that has ever been seen.
Over the ensuing 100 years, the political process was regulated yet campaign spending continued to increase. Fast forward to the present day and the power of the all-mighty dollar is nearly as omnipotent as it was in 1896.
When the U.S. Supreme Court revealed their Citizens United Decision, corporate and monied interests cheered and democrats — who rely more on smaller, personal donations — fretted. After all, with unlimited spending, wouldn’t corporate America be able to spend their way to a victory in both the Congress and the White House?
But some professional academics such as political scientist Michael Franz claim that the 2012 election revealed that spending no longer determines who wins an election. Franz’ study of the 2012 election showed that most of the big money donors — that gambled on Mitt Romney and lost — put their money down a black hole.
Yet, many fear that the past two elections where millions were spent on a loser might just be attributable to a perfect candidate like Barack Obama, who, while severely hated in some circles, reaches demographics that makes him a virtual lock in any election in which he chose to participate.
Call him the young lion who usurps the pride leader no matter how much cash he has.
And, although the Citizens United decision is not applicable to state and local elections — more on this later — many fear it may eventually set precedents that will trickle all the way down to municipal elections.
Today, in Arizona, candidates for elected office have another choice than to submit to the campaign donor system and can run as a “Clean Elections” candidate. Candidates who participate in the program have won many seats in government, including former Gov. Janet Napolitano’s two wins and the current governor, Jan Brewer. Yet, the act has been under constant attack by a faction of the conservative base since it was first approved by voters.
In 1998, voters passed the Arizona Clean Elections Act of 1998 which enshrined the Arizona Clean Elections Act into the state constitution, which provides a system for ballot access for “average-citizen” candidates, who wish to forgo relations with special interest groups as sources for high-stakes capital campaign financing, or who do not have the support of wealthy private benefactors. To qualify, they must get a certain number of $5 donations from registered voters — which they must turn over to the Arizona Clean Elections Commission.
After years of attacks, the Arizona legislature had two bills introduced in 2010 that would have terminated the program but they did not get passed. In June 2011, the U.S. Supreme Court ruled the program’s matching funds component. That provision provided additional financing to participating candidates beyond the standard financing amounts in order to match donations of a non-participating candidate that financed privately and raised significant sums.
In 2012, and with a super-majority, the Arizona legislature managed to pass a bill that was scheduled to put a full repeal of Clean Elections onto the ballot. Introduced by Sen. John McComish, the ballot measure was removed in October 2012 by Maricopa County Superior Court Judge John Fink. The basis of the ruling was that it would not just end Clean Elections but all public financing of candidates, including a program exclusive to Tucson. Because of that consequence, Fink ruled the measure violated the state’s single-subject rule — that any ballot initiative can only address one question.
In 2013, the Arizona Legislature passed a bill that raised campaign donation limits from $912 for statewide offices to $2,000 for both the primary and general elections. Legislative donation limits were likewise increased, but from a former cap of $440. The previous limits had been established by the Clean Elections Act in 1998 and were to only be adjusted by inflation. The Arizona Court of Appeals rejected the new limits but were reversed by the Arizona Supreme Court in December.
Recent victories from conservatives on Clean Elections were not enough to keep ending the program out of the current session. A currently pending bill at the 51st Arizona Legislature is House concurrent resolution 2023 (http://www.azleg.gov/legtext/51leg/2r/bills/hcr2023p.pdf), would repeal all of Arizona Revised Statute (Title 16, Chapter 6, Article 2) related to the Clean Elections program (http://www.azleg.gov/ArizonaRevisedStatutes.asp?Title=16). The author of the HCR 2023 is Javan Mesnard, district 17.
Arizona Rep. Paul Boyer, district 20 said, “if his passes, or if my version that I have not introduced yet passes, it won’t affect voters in 2014,” Boyer said, “it will affect candidates in 2016.”
Boyer, said while he supports HCR 2023, he does not support killing the program entirely.
“I am OK with the debates that Clean Elections provide,” Boyer said. Boyer is in his freshman term at the state legislature, and although he was not a Clean Elections-financed candidate, he participated in a Clean Elections-sponsored debate during his campaign last year. Clean Elections debates are mandatory for Clean Elections candidates only, but non-sponsored candidates may also choose to participate (http://www.azcleanelections.gov/2009-2010-docs/R2-20-107_Candidate_Debates_3.sflb.ashx.
“I would like to remove the public financing component, that’s my biggest concern,” Boyer said. “I think that money would be better spent on education.”
Clean Elections gets its funding from a 10 percent surcharge on all civil penalties and fines, civil penalties paid by non-conforming candidates, and $5 qualifying contributions collected from participating candidates.
Daniel Ruiz II, deputy director of the Arizona Clean Elections Commission, said Boyer’s proposal perhaps may sound more aesthetically pleasing, but that it would essentially do the same thing as HCR 2023, by leaving just a shell of the Clean Elections structure remaining without any funding mechanism.
“The amount of money that we receive is such a small amount compared to the overall education budget,” Ruiz said.
For example, in 2013, the commission received a total of $9.3 million in revenues, compared with a total of about $13.8 billion spent on education in 2012, he said.
“We believe a bill similar to the one Rep. Boyer introduced last legislative session is an ill-conceived and misleading attempt to repeal Clean Elections, a program that continues to be popular among the Arizonans who put the Clean Elections Act in place,” Ruiz said. “Voters appreciate the opportunity to run for office that is provided through the Clean Elections, the voter education functions of the commission, and the enforcement and accountability mechanisms that were established back in 1998.”
Many think Clean Elections is just about campaign finance, Ruiz said, but it does also provide voter education, information about judicial issues, and ballot measures. For example, the commission wants to provide funding to counties throughout the state, on a matching scale, in order to buy new voting equipment which is due for replacement, Ruiz said.
In December, the Clean Elections Commission approved their legislative principles and priorities for the 2014 legislative session. Interest has been expressed by legislators and constituents about enhancing the organization's voter education efforts, and on Jan. 30 during one of its regular public meetings, a number of these concepts were adopted into its agenda of legislative principles and priorities.
The items approved by the commission that will be proposed as legislation during the current session includes:
— Permit the commission to make expenditures for the equipment refreshment for county elections in this state that may be disbursed for those purposes on evidence of county matching monies, with a county providing $3 for every $1 from the account.
— Permit the commission to make expenditures in its discretion related to voter participation in judicial retention elections.
— Permit the commission to engage in voter education related to state initiatives and referenda, including identifying pilot programs for voter education, participation, and evaluation and pay associated costs.
Threat To Voter Power?
In 2010, the U.S. Supreme Court ruled that the First Amendment of the U.S. Constitution prohibits the government from restricting certain independent expenditures by corporations, associations, or labor unions with its Citizens United v. Federal Election Commission decision.
The case’s precedent does not apply to state and local elections, but its principles could be, and several states (including Arizona) have pursued legislation with that in mind in the years since the Citizens United ruling, said Arizona Senator Debbie McCune Davis, who spoke Jan. 23 at a Central Arizona National Lawyers Guild forum at the Burton Barr library in downtown Phoenix.
The case stemmed from a campaign film that was in apparent violation of the Bipartisan Campaign Reform Act — also known as McCain-Feingold — so it ended up in court. The film’s producers eventually won their argument that the law, as it applied to Citizens United — a political action committee primarily funded by large corporate interests — was unconstitutional. Specifically, the BCRA rule in question involved certain restrictions on expenditures 30 days before a primary election and 60 days before a general election.
During both the current and previous state lawmaking sessions, bills have been drafted in the Arizona Legislature that would instruct Congress to propose an amendment to the U.S. Constitution that would dismantle the Supreme Court’s Citizens United ruling. The current proposal is HCR 2026 (http://www.azleg.gov/legtext/51leg/2r/bills/hcr2026p.pdf).
Citizens United is a non-profit group, but the precedent can be applied more broadly to for-profit corporations, associations, or labor unions, said constitutional lawyer and campaign policy analyst, Paul Eckstein, who also spoke at the Jan. 23 event.
Parli Pro Or Partisan Knavery
Sen. McCune said that during the previous legislative session, Arizona House Speaker Andy Tobin failed to assign the previous version of HCR 2026 to committee. The Senate republican communications staff declined to comment regarding previous sessions, but said that during the current session, of the 27 House concurrent resolutions submitted, only two of them had been assigned to committee as of early last week.
“Regarding the Citizens United ruling, the republican caucus is made up of 36 individuals, each with his or her own opinion,” said Arizona Senate republican communications staff member Christopher Leone, responding on behalf of Tobin’s office. “We don't have a position from the caucus on the Citizens United ruling. If we did, I would gladly share it with you.”
There is no law being violated when a bill is ignored and not placed before legislative committee, however it is a procedural failure, McCune said, and it effectively suppresses the voice of the equal constituencies that are all represented by legislators of any party, she said.
The Citizens United precedent is dangerous in a representative democracy, in any case, said Jon Alonis of the Arizona Advocacy Network.
“Big money can come in and pretty much just buy the whole bench, because, unfortunately, we've come to the point where whomever has the most money wins,” Alonis said. “The voice of the voters becomes silenced as we toss more money into the process.”
A corporation has limited liability, perpetual life, and potentially unlimited assets, and they are not people or electors, McCune said.
Some believe that the Citizens United case law precedent could lead to corporations being allowed to vote, Eckstein said, but that it is unlikely.
“I don't think the case can be read that far, despite all the hyperbole.”
Restrictions about contributions by foreign nationals and foreign companies are not affected by the high court's interpretation of Citizens United, he said. But political speech is the core speech that is protected by the First Amendment, and the legal interpretation that “money is speech” is not a new concept, Eckstein said.
Citizens United’s Communications Director Jeff Marschner did not return phone calls or respond to voice messages last week.