ROBERT ROBB

Reagan vs. Clean Elections is the fight to watch

Robert Robb
opinion columnist
Michele Reagan is arguing that the secretary of state, not the Clean Elections Commission, has the responsibility to investigate campaign-law violations. Legal fisticuffs have broken out in a case involving the Legacy Foundation.

The political tug-of-war between schools Superintendent Diane Douglas and Gov. Doug Ducey, along with the state Board of Education, is getting all the attention. The jurisdictional fight between Secretary of State Michele Reagan and the Arizona Clean Elections Commission, however, may prove to be more consequential.

The commission oversees Arizona's system of public campaign financing. Initially, that system included what was called matching funds. If a publicly-financed candidate was being outspent by a privately financed opponent, or if an independent group weighed in on the other side, the publicly financed candidate received more money.

To implement the matching funds provisions, the Clean Elections initiative gave the commission some regulatory oversight of privately-financed candidates and independent campaigns.

In 2011, however, the U.S. Supreme Court struck down the matching funds provisions as unconstitutional. Nevertheless, the commission claims that it retains its regulatory oversight over privately financed candidates and independent campaigns, and has become increasingly assertive in exercising it.

Reagan complains that this is poaching on her turf, because state law generally invests her office with the responsibility to investigate campaign-law violations. Legal fisticuffs have broken out in a case involving the Legacy Foundation.

That's the outfit that took out those silly ads proclaiming that Scott Smith was President Barack Obama's favorite mayor. The ads ran before Smith resigned as Mesa mayor to run for governor and well before the Republican primary. Legacy took the position that the ads were issue advocacy and didn't trigger state law requirements to register and report as an independent expenditure campaign.

Smith filed a complaint arguing otherwise with both the secretary and the commission. The secretary farmed out the complaint to the Maricopa County Elections Department, since then-Secretary Ken Bennett was also running for governor. The department concluded that the ads didn't meet the state law definition of "express advocacy" that triggers the reporting requirements.

The commission concluded otherwise and slapped Legacy with a fine. Legacy appealed to an administrative law judge, who found that the ads weren't express advocacy. Under another Arizona law that makes no sense, the agency, not the ALJ, gets the final word, and the commission stuck to its guns. Legacy appealed to Superior Court.

And now Reagan, represented by the Goldwater Institute, is seeking to intervene in the case to make the point that the matter is none of the commission's beeswax.

What to make of this mess?

Well, the first point is that there shouldn't be dual enforcement of campaign laws. That's unfair to political participants and, as Goldwater argues on Reagan's behalf, may constitute an unconstitutional burden on free speech.

If judges don't resolve the issue by shutting down the commission, straightening it out will be difficult. Clean Elections was a voter-approved initiative, limiting the Legislature's ability to curtail whatever authority the courts decide the commission has.

There are, in fact, some arguments in favor of vesting the investigation of campaign violations in the commission rather than the secretary. Although commissioners are appointed by politicians, they are not directly elected, as is the secretary, and thus at least one step removed from partisan politics. And it has an independent source of money not subject to legislative appropriation and thus pressure.

From a Republican standpoint, however, the commission was conceived in sin and the Legislature would never take responsibility away from the secretary and give it to the commission, at least until another Democrat manages to get elected secretary.

The second point is that the existing definition of "express advocacy," which triggers the reporting requirements, is hopelessly subjective. The definition requires consideration of context, presentation, timing, phases of the moon.

In this case, Maricopa County election officials and the administrative law judge didn't believe that Legacy's silly ads met the definition, but the commissioners did. In a previous case involving ads pillorying Tom Horne before his first run for attorney general, an ALJ and Court of Appeals judges found that they met the definition, but a Superior Court judge found otherwise.

People who want to participate in politics shouldn't be entering into a twilight zone, where the rules are uncertain and enforcement duplicative and potentially contradictory.

Reach Robb at robert.robb@arizonarepublic.com.