Ted Simons: An Arizona State Supreme Court ruling that allows for higher limits on campaign contributions is being appealed by the Arizona Clean Elections Commission which claims that the new law violates the state’s Voter Protection Act. Tom Collins, Executive Director of the Citizens Clean Elections Commission, is here to discuss the issue along with the Arizona House Speaker Pro Tem J.D. Mesnard. Good to see you both here. Thanks for joining us. Before we get to the specifics on the Voter Protection Act, because I know that’s at play here in the appeals process, let's talk about the concept of increasing spending limits to candidates. Why are you fighting this? Why is this a bad thing?
Tom Collins: The commission's position isn't necessarily that this is a bad thing. What the commission position really does integrally relates to the Voter Protection Act. When the voters passed the Clean Elections Act in 1998 they set the schedule for how campaign contributions limits to statewide and legislative candidates would be changed. They would changed by a formula set in statute. So the bill that is at issue here needed to get a three quarter vote of the legislature and further the purpose of the Clean Elections Act. The commission’s view has always been that it’s willing to work with folks on a comprehensive approach to this that can get that three quarter vote and further the purpose, but in this particular context that just hasn't happened yet.
Ted Simons: The idea that—let’s get right to it—that this violates the Voter Protection Act. How do you respond?
J.D. Mesnard: We actually didn't touch anything that was in the Clean Elections statutes from 1998. The Clean Elections language references whatever the limits are and reducing that by 20 percent. So, for instance at city council level dollar amounts the state level is 20 percent below that. This bill didn't change that. So we will continue to be 20 percent below that. We didn't touch anything in the Clean Elections statutes.
Ted Simons: The idea that nothing was actually touched, obviously there was some working around the 20 percent. If 20 percent goes up and everything underneath 20 percent goes up, but again the statute wasn't dealt with. Valid?
Tom Collins: We fundamentally disagree with that. What we’ve said is basically think about it this way, on the first Tuesday after the first Monday of November 1998, a legislative candidate could take X amount of dollars. And the day after that they could take Y. That means the Clean Elections Act changed something, and we believe that an argument to the contrary is essentially a hyper technical reading at best that thwarts the will of the voters. We think it's a wrong reading as well. We think the case law in Arizona is clear. When you're taking away from an act that’s been passed by the people that's an amendment, and that’s what this bill did.
J.D. Mesnard: Yeah, but the Clean Election statutes could have put in there actual dollar amounts. They didn't. They put a formula in place. That formula is still intact and has not been changed. Had that been changed it would have triggered a three-fourths vote. But because we didn’t, we left it in place, so there is no three-fourths vote requirement.
Tom Collins: Well that's really the crux of the case when it comes right down to it. We fundamentally believe that that formula is set in statute. The only way it changes is either with a three-quarter vote in furthering the purpose of the Clean Elections Act or by inflation, which is the metric that’s actually set forth in the statute. It's that simple. It's a very simple legal issue. I think we just happen to think that and we believe strongly that the Arizona case law of what constitutes an amendment to a voter enacted initiative is quite clear. The voters have spoken and the legislature can't thwart the will of the voters without getting the requisite vote.
Ted Simons: The judge in the case used the word havoc. If everything, every law, were cross-referenced with every voter approved law and acted as if that just isn’t realistic and it would cause for mayhem.
Tom Collins: I think what the judge said, and understand this is a preliminary ruling, so the merits of the case continue. In fact, the judge the next week made very clear that commission has the authority and the right to be in court to pursue this case. The case is going to continue regardless. One of the reasons we sought the expedited review in the Court of Appeals is because we want the rules of the road to be clear. But to that point, the analysis isn't -- the judge with all due respect, I understand he’s under a time constraint, but he didn't assign either of the two cases from the Court of Appeals and the Arizona Supreme Court that we believe are binding and set forth the analysis. The analysis is not whether or not somebody thinks that a particular cross reference or formula is the principle that applies. The principle that applies is does that take away from what the voters enacted or not. You apply that to each part of the statute. It's not a one-size fits all which is where the court was going and it's not what case law says and that case law is binding on the courts.
Ted Simons: Do you see it as one size fits all? Again, common sense would dictate you look at how the law impacts a voter approved-- essentially the will of the voters. It sounds like the will of the voters wanted A. It sounds like what the legislature is doing is not A.
J.D. Mesnard: There's a lot that's happened since 1998. One of the major pieces of Clean Elections was the idea of matching funds. That's probably why they didn't put dollars in there was that matching funds would kick in and whatever you raised it to those matching funds would also match but the Supreme Court struck down that as unconstitutional and so now there's no longer matching funds. That's what the voters intended. They may have intended two systems to be relatively equal. As a result of the U.S. Supreme Court's ruling you really have two different systems. One system, the public system may make sense in some cases, the private system may make sense in other cases and that’s ok. They're just two different financing systems.
Tom Collins: If I could, and I think Mr. Mesnard says a couple of things I disagree with. The history of the act and the structure of it don't bear that out. For example, he said because the matching funds program was there it didn't matter what the amount of the limits were. That's not so because under the Act as passed there was a cap on the amount of the grant that you could get. There always was. It was metered out through the matching of funds program but there was always a cap. Secondly, and importantly on this point, the legislature starting after the 1986 the folks, the voters put in place campaign finance limits. Subsequently, three times the legislature increased those limits. So this is part of the reason the Voter Protection Act passed in the first place was because of those increases. That’s where the Clean Elections Act brings in the contribution limits. If you look at the actual ballot language that voters had which you can go on the Secretary of State's website, Google up the 1998 voter publicity sample ballot, you can actually look at what a voter would have had as their sample ballot. The ballot language said that they were reducing campaign contribution limits. That's what people voted on. That’s what they did.
Ted Simons: That's what they did but still and all this 20 percent thing as opposed to a hard number, doesn't that change the ballfield just a little bit?
Tom Collins: Not at all. We don't -- there's no principle that says that you have to put in a hard, firm number. The numbers were hard and firm, adopted into the statute. That's the whole point. In the case law if you look at the case law if a statute takes another statute in which this one does, you know, you can't just amend the one without the other. That's not how the legal principles operate.
Ted Simons: Does it stand to reason that that 20 percent limit as approved by voters, it was approved by voters in 1998 on those particular levels. Messing with those particular levels at a later date thwarts the will – because a judge did mention this was passed at a certain time. He seemed to emphasize a lot when this was passed what did voters really want. I think he went into game theory actually.
J.D. Mesnard: He did. And that's a good point. I’ll just bunny trail for moment. That is that he made the interesting point that both the Clean Elections Act, which passed in '98 and the Voter Protection Act, which passed at the same time, they both barely passed. He went into this game theory to basically calculate what are the odds somebody wanted both to pass because the whole crux of the Clean Elections position is that it's protected by the Voter Protection Act which barely passed back in 1998 as well. If that had not been there I'm not sure what the discussion would be. Is the problem increasing the contribution limits the problem or that you need three-fourths vote. If you had three-fourths vote would you feel any different? I'm not entirely sure what your position is.
Tom Collins: The commission has worked with the legislature in the past on increasing the amount of contribution limits and also taking a more -- holistic or comprehensive approach to this and doing both. That's happened successfully in the past. The difference is that this session the commission laid out for the legislature what you thought the law was on this. It even had a bill. We had a bill that would have accomplished these different purposes we think it would have met the further purpose issue and we had a bill. So we were at the table. We're willing to be at the table if there was a table to be at.
J.D. Mesnard: The challenge is that at the end of the day there isn't the support to amend the Clean Elections statutes alongside the traditional. There was support as we passed and basically now we're in a lawsuit because we didn't reach the higher threshold that the the commission wanted to have reached so you're using that as a way of forcing some comprehensive, in your eyes, view. That's not fair.
Tom Collins: Well, I think that what the commission's role here is and what the commission's goal is, is to ensure that voters get what they bargained for through the Voter Protection Act and Citizens Clean Elections Act. The fact that the legislature -- the legislative majority thinks that they found a loophole just exactly the size of ten times the amount of campaign contributions that they can drive this bill through is not wrong or even inappropriate in any way for the Clean Elections Commission and its fellow plaintiffs to seek judicial remedy for that. The Arizona courts have long recognized that state officials whether the governor, Speaker of the House, whether, just recently it’s the members of the commission on appellate court appointment seek to enforce the Constitution, they are welcome in court and the judge in this very case has said that.
Ted Simons: Please, please.
J.D. Mesnard: I was going to say, we brought the Constitution in because we are talking about the State Constitution. That's broader issue at stake here, that's the U.S. Constitution and the right to free speech which is what this bill was about with the Supreme Court has indicated that our money is an extension of our free speech and we have been stifled in Arizona with limits being so low we even got honorable mention if you can call it that in the Sorrell case that came out of the U.S. Supreme Court where they acknowledged Arizona's limits were exceedingly low.
Ted Simons: I wanted to ask you that because I have heard that a lot. We have done this debate in varying forms, not particularly this part of it but in other forms, and I have always heard that many see those limits in Arizona, the old limits, as too low. Explain too low. How is that defined? How do you know when you're there?
J.D. Mesnard: I'm not a judge, so I guess they would have to take a look. At the end of the day you can look at the cost of running a campaign. Mailers and getting your message out. I know County Attorney Bill Montgomery has made this point often, and that is that it costs a lot of money to get your message out. At the end of the day maybe you can raise a few thousand dollars, several thousand, and barely have enough funds to get to the people you ultimately hope to represent. That combined with the idea that independent expenditures and PACs are out there and they can raise unlimited funds, they don't have to disclose their donors. The U.S. Supreme Court in Citizens United upheld that ability so now basically candidates are spectators in their own campaigns watching other folks wage a war where they barely get to participate.
Ted Simons: Last question for you. 1998, that landscape passed, the will of the voters, clear. Since then we have had Citizens United, since then we have had court cases which seem to have adjusted the landscape to a certain degree. How is a judge to figure out if what the voters wanted in 1998 is still what the voters would want now?
Tom Collins: I think this is a very simple principle. Representative Mesnard put a lot in there. There's a lot there to unpack. But the fact of the matter is that if a candidate is getting direct contributions there's an appearance of corruption there that the courts have long recognized can be limited. So that is the principle that is not in question. It never has been in question. It's been the law of the land for 40 years. That’s the principle that has embodied the Clean Elections Act. That's the principle that we're defending. The First Amendment issues here are, with all due respect to folks like Mr. Montgomery who recently I finally met, he's oversimplified the issue and if you go through the analysis, Arizona’s limits are perfectly constitutional. More than that, if you look in the yellow sheet report of the Capitol Times, today there were political consultants talking about the cost of campaigns for campaigns, for the legislature, has just not gone up. So the need for this bill now and to not allow the Voter Protection Act is not there.
Ted Simons: I want to give you the last word. Respond please.
J.D. Mesnard: Well I guess my question would be then what is the issue? At first it seemed like it was the Voter Protection Act. Now you say the limits we're fine anyway. What's the need for comprehensive reform? Because implicit in that is that we would up the limits, which is what this bill did.
Ted Simons: Ok, we’ve got to stop it right there. Great discussion. Good to have you both here.