Ted Simons: Coming up next on "Arizona Horizon's Journalists' Roundtable", attorney general Tom Horne denies alleged campaign violations. A repeal of recent controversial election laws passes the house, and the state superintendent of public instruction is under fire for advocating public funds for private schools. The "Journalists' Roundtable" is next on "Arizona Horizon."
Narrator: "Arizona Horizon" is made possible by contributions of the friends of eight, members of your Arizona PBS station. Thank you.
Ted Simons: Good evening and welcome to "Arizona Horizon's Journalists' Roundtable." I'm Ted Simons. Joining us tonight Luige del Puerto of the "Arizona Capitol Times." Howard Fischer of "Capitol Media Services." And Mike Sunnucks of the "Phoenix Business Journal." Attorney general Tom Horne is saying that he did not coordinate his 2010 campaign with an independent expenditure committee and, thus, violate campaign finance laws. No surprise there. Did we get any surprises out of this hearing so far?
Luige del Puerto: No, everything that was said we had been reporting on it for, you know, months and months and months. Tom Horne did get the chance to defend himself, and he appeared pretty relaxed and he appeared pretty confident, and his main point there never was coordination. It is true that he had communicated with Kathleen Winn. There were phone calls made between them but it was all about a property deal, and had nothing to do with -- with -- illegal coordination.
Howard Fischer: And the other part of it is we start off with your point that it is circumstantial at best. You know, well you talked here and you made a call to your consultant there. And, in fact, Horne made the point that is true, only illegal to coordinate the expenditure. He could help her raise as much money as needed. Discuss that we need $100,000 or whatever. It is only the expenditure side. Absent that smoking gun, that memo -- he sent her a copy of a poll that suggested perhaps some weaknesses. Is that telling her what the message of the ad should be? That may be a stretch.
Ted Simons: We are talking -- prosecutors are saying a lot of phone, a lot of email, almost constant communication.
Mike Sunnucks: 87 calls something like that. Dozens and dozens of constant contact. I mean, it is a lot of communication between the two. And so it is kind of the -- there is smoke there for the folks on the other side. Horne contends it is about the real estate deal. A lot of people, is that really true? I think it’s kind of a cumulative thing. Maybe he will get off legally. The -- the -- wow, that is a lot of phone calls with one person over something innocent.
Luige del Puerto: The prosecution's case also hinges on the fact as the phone calls were being made, the ad in question, the campaign commercial in question was being finalized. So, they're saying, okay, this bunch of phone calls were happening even as you were finalizing this commercial -- this campaign commercial against your opponent in the general election, and, therefore, that creates at the very least impression that you were coordinating --
Howard Fischer: But impression goes so far. Look, the best thing the prosecutor has working for him and actually his boss, this is called preponderance of the evidence. 51-49, more likely than not, up to the administrative law judge to make a recommendation does she buy it. You know, she has to decide for herself, is there enough here for me to conclude that it is more likely than not what they were talking about is the campaign versus the real estate versus Winn's mother being in the hospital.
Ted Simons: Prosecutors talking about circumstantial evidence, they're also saying that there was no evidence that real estate was ever discussed in the phone calls.
Mike Sunnucks: Another Horne aide -- so, there is just a lot there. The real decision here in the end, the court of public opinion and when voters decide in the republican primary and general election. Horne may get off on this legally. If everything else is against him and voters take that into account that is where he really loses.
Howard Fischer: That gets down to the timing issue. Judge asked for briefings on legal issues which means maybe a ruling in March, April. That goes back to the county attorney who can accept or reject it. I have talked about this over and over again. This keeps bleeding and every time there is a story, there is a story about the baseball cap, about, you know, exchanging his gold Jaguar for somebody else's car in a parking garage to go have lunch and all of that stuff.
Ted Simons: Also at stake a $400,000 repayment along with $1.2 million in fines.
Luige del Puerto: Correct. If I'm not mistaken, what happens, if, for example, the judge in this case concluded that he is guilty of illegal coordination, the only thing, if I'm not mistaken, the only thing that Horne's camp can appeal is over whether the judge had -- discretion and that is a pretty high bar to prove in Superior Court.
Ted Simons: It is also a bar that extends the whole thing even further to where -- the guy could get reelected and still dealing with this thing.
Howard Fischer: Yes, and there is another piece to this also and it has to do with other things going on with the democratic attorney general who supported Felicia. We have a campaign finance law that is menudo. It's horrible. In terms of when coordination occurs, you know, what are independent expenditures allowed to do? What kind of reporting do they have to have? All post Citizens United. And to the extent that one of his arguments is going to be limits on what could be given in 2010, $840,000 constitutionally too low, therefore, it didn't matter whether he controlled all of the rest of the money. He has a parallel argument.
Ted Simons: Nice parallel argument and legal minds can debate that back and forth. John and Jane public do they go that far on this story?
Mike Sunnucks: No, think they see the attorney general sitting up there on trial, essentially, if they pay attention to that, and to Howie's point, the hit-and-run accident, the ball caps, hanging out with the work associates subordinates, all of that is -- and longer it goes on, the more damage it is.
Luige del Puerto: Interesting story, former governor coming out and attacking -- the folks attacking Tom Horne late last year basically going after them, calling them cowards, hiding in the wings again, another dark money story.
Luige del Puerto: Last year, Arizona public integrity alliance that came out with an ad basically blasting Horne precisely over these legal woe that he is facing. But then the -- a complaint was filed before the secretary of the state, but the secretary of state decided or concluded that this group should not -- there is no need for it to be registered as a campaign committee, and, therefore, it does not need to disclose its contributors. The former governor and -- said well, you need to revisit this issue. I think they should not -- they are saying they should not be allowed to hide who their contributors are. If you look deep enough, you will find that this group may, in fact, be violating our law because they are not -- they haven't registered. That's the argument.
Howard Fischer: Back to the point about the menudo. Our law says very clearly vote for, vote against, then it is campaign. The law however says if you are simply educating somebody on somebody's voting record, somebody's background. This is what we came up with the democratic A.G. back in 2010, simply saying Tom Horne is X, Y, and Z, and he did this as school superintendent and he did this as a legislator, does not -- even if it occurs right before the election, is constitutionally problematic, you know, which gets to the issue of can you run education ads? Look at -- all you need to do is turn on commercial television to see that this kind of stuff runs all of the time. We have running against Ann Kirkpatrick. We are not saying she’s bad. We're educating the public.
Ted Simons: Again, this is a former governor. People assume Tom Horne, no one is backing him. Everyone is running away. They're not. The former governor standing behind him. And Don Shooter, he is involved in this complaint filed with the secretary of state's office, his opponent and Horne's primary opponent, their campaigns run by the same folks.
Mike Sunnucks: You're right about Horne. He has always been kind of on his own political island. He runs his own campaign. He has been effective at that. And during all of these scandals and legal woes, you would expect that he has seen a lot of people go toward Bernovich.
Howard Fischer: Also understand where FIFE is coming from. His legal troubles back in the 90s, the bankruptcy, the trial in the judge's court of whether he is guilty of defrauding creditors and people coming out and attacking him. So understanding a piece of that, for the same reason that Don Shooter, has his own problems with campaign finance reporting -- they're all saying that maybe Horne is not such a bad guy.
Ted Simons: We should mention both the former governor and senator Shooter, alluded to the fact of former speaker Kirk Adams and his dark money group is behind this little action group as well. Adams says no, I'm no where near this.
Luige del Puerto: The former governor and Kirk Adams are saying this is being done against Tom Horne, against Don Shooter -- their campaigns run by the same consultancy firm.
Ted Simons: We will see where that goes. Election law changes, controversial changes. They passed last year in a flurry. Opponents get the necessary signatures. It is on the ballot. The house right now says we don't like this anymore.
Howard Fischer: Well, to hear Eddie Farnsworth say it -- they said they didn't like it, we move it. No reason for this to go to the ballot. The democrats are saying let the people have their say. Obviously there are two issues at work here. Number one, they repeal the five, six, seven changes making it harder for minor parties to get the candidates on the ballot, changes in early voting laws, changes in who can take somebody's -- and making it harder to do initiatives, and that they might come back and do it piecemeal which forces to start over again. Let's cut through the menudo here, the republicans don't want it on the ballot because it will bring out democrats. It will bring out minor party people. They don't want this on the ballot. The democrats want it on the ballot for exactly the same reason. This is what this is all about.
Ted Simons: It is also about the fact that you put this on the ballot, and everyone says we don't like this. We will vote yes. Get rid of all of this stuff. You have gotten rid of all of this stuff. It is hard to get anything back, including minor changes to election laws.
Mike Sunnucks: That is the long-term thing. They don't like voter mandates, voter approved laws down there. They want to avoid that situation. Absolutely right, it is about turnout.
Howard Fischer: You get three attorneys in the room and they will give you six opinions. If this thing were to go to the ballot and voters needed to ratify them or voters reject them, are they protected under the Voter Protection Act? Once voters have had their say, can you ever change that again? And that's the issue. I think the issue if voters say no, I think you can still come back. If voters say yes and ratify these changes, can you ever change the laws and permanently vote again?
Luige del Puerto: Precisely your point, that has not been mitigated, and we don't have any case law that says one that is -- you know, voted by the people, either way, and, therefore, it is voter protected and not voter protected. Another reason why the democrats are unhappy about this bill of course the fact that they don't trust republicans. Some of them have --
Howard Fischer: I'm shocked to hear you say that.
Some of them have said that this surmise -- that they might actually go back next year and pass this law, piecemeal, which is causing the heartburn among those who have put this law on the ballot.
Ted Simons: Go back next year -- this year --
Howard Fischer: And that's the point. As all of the assurance, again, Farnsworth said I know of nothing, but in the same breath he said that doesn't mean maybe some of my colleagues are not planning this. There is a belief that perhaps on the voting list, there are changes needed. The Democrats point is sit down with us. We will negotiate something that we can all live with as opposed to you simply repealing it and then coming back and doing whatever the hell you want because you are the republicans.
Ted Simons: We will see where this one goes. We have to keep it moving here. The superintendent of public -- public instruction is kind of stepping all over it right now with the robo-call where he is promoting private access to schools.
Mike Sunnucks: Private scholarships and it went to 25,000 or so folks. And he's gotten a lot of heat from the teachers' unions and school boards, because he is supposed to be the superintendent of public instruction. He says he is all about the scholarships for disabled, special-ed kids and --
Howard Fischer: But that's the point. That's the point. This started out as a very small program. Children with special needs, disabled, foster children. And then they extended it to the children in schools rated D or F. And, again, maybe this is argument there if the school is failing, that's fine. That's up to 200,000 kids. There is a bill this year to say if you're eligible for the free or reduced priced lunch, you are eligible -- now we're up to 60 percent of the children in public schools and that bill has a provision to adjust that income figure every year by 15 percent until all 1.1 million children opt out –
Mike Sunnucks: This is so partisan. The teachers' unions and school districts aligned with the democrats, public schools. Republicans aligned with school choice vouchers and these types of programs and adversaries to these things. So they all line up in their usual partisan corners
Luige del Puerto: Which makes this outcry really interesting. Here is a guy who ran on pro school choice platform. Legislature, he is known for advocating a state voucher program and becomes superintendent of public instruction, in effect, we got exactly who we elected to this office, a pro-voucher guy.
Ted Simons: You can advocate anything you want when you are in the legislature. What is the superintendent of public instruction supposed to do?
Howard Fischer: Now we get down to let's diagram the sentence. He says the public refers to the superintendent of public instruction meaning the instruction for all of the kids who are in the public, as opposed to the superintendent of public schools. The issue becomes -- maybe it is optics. But the presumption is you should at least be out there arguing for better funding of the public schools, which have been cut by hundreds of millions of dollars.
Luige del Puerto: Which he has. To a certain extent.
Luige del Puerto: To a certain extent. But remember as a legislator, also -- you have not only the traditional public schools, you have a charter school system which are public schools. The question becomes you can call them scholarship accounts, you can call them vouchers, voucher-like program. We are talking about taking public money so that parents can educate their students in private and parochial schools without oversight.
Ted Simons: And the quote on the robo call, “that's right, you may be able to send your child to private school for free.”
Mike Sunnucks: Incremental thing. Folks on the right that want the vouchers and charter school, step by step thing to keep expanding the program until you can cover basically everybody.
Luige del Puerto: And obviously from the perspective of the AEA is at what point have we destroyed the public school system. Private and parochial schools can take as many kids as they want and as few kids as they want. They can go out of business. Public schools, they have to be there -- buildings that have to be maintained and to the extent that you are taking money out of there, each student, student leaves, money goes with them. What are you doing for the public school system?
Ted Simons: As the superintendent of public instruction, what control does he have over private schools?
Howard Fischer: There is none. Argument is that the parents are the ultimate control, which makes sense up to a point. But if the only thing the parent cares about is I want my child getting a Christian education that says we have only been here for 6,723 years, I don't care about the rest of that. Then should the state be subsidizing that.
Luige del Puerto: Let's keep in mind that the number of students now in this who are taking advantage of this scholarship program, about students. Out of that, students are in the school -- another program that allows parents to get essentially public funds, tax credit program to go to a private school.
Howard Fischer: And that is where it gets real interesting. If you are giving the parent 90 percent of what that would be, like $5,000, and then assuming you are going to a fancy school and you get a scholarship which is also diverting state funds -- is this really saving the money people are thinking about?
Ted Simons: Impacts in the upcoming race against David Garcia.
Mike Sunnucks: I don't know. I don't know much. This is so partisan and so political, I don't think it has a huge impact on that.
Howard Fischer: I -- I tend to agree with Mike on this to the extent that people aren't focusing on that. I think a good campaign of who is supposed to be representing public schools, who is supposed to be out there watching out for our kids, you might be able to do some. In terms of the academic exercise of empowerment scholarship accounts, not much.
Luige del Puerto: What this impacts right now his relationship with the teachers. I spoke with the head of the teachers union. We understood where he is coming from, pro school choice guy. What really got him is the fact that he thought that he -- he and the teachers were making good conversations on, for example, school finance, the fact that he in fact advocated a little bit for public money. He's a fierce defender of common core standards, for example.
Howard Fischer: We don't get to call it --
Mike Sunnucks: We don't call it that.
Luige del Puerto: Sure. But the fact that Andrew Morrill thought they were having a great relationship -- not great, but solid relationship, but that is taking a step back.
Howard Fischer: I don't think Huppenthal thought about that -- it would have been more interesting had he cut an ad saying there is a program for public schools, and you can give and all of that. But he -- it was the one side that --
Mike Sunnucks: He was in a vacuum. He saw -- the scholarships for disabled students, special ed stuff, everybody thinks there is support for that. But if you look at the broader expansion of this, politics of it, what the teacher union thinks of --
Ted Simons: Senate president Andy Biggs wants the nose to toes audit of what was CPS. We understand that. It sounds like an interesting idea. Is it something that has to be done and done in a certain way in order to get these changes funded?
Howard Fischer: Well, I think since the legislature controls the purse strings, you know, they gave the governor some emergency funding for, you know, 129 new caseworkers and additional support staff. I think before they're ready to say, you know, we're going to provide another couple of hundred people, they want to be sure that we're not just transferring the problems. Everyone recognizes there is a need for more money. But if you are simply renaming CPS as division of youth, child families, whatever it is called these days, have you solved anything and there is a certain sentiment there to make sure that it is being cleaned up. They are giving a lot of credit to Charles Flanagan who has come in saying look we're not going to be the same organization. We are going to be responsibile. Lawmakers want to be sure that this is not just throwing money at the problem.
Mike Sunnucks: Look at the other states. There’s 49 other states with CPS agencies. They have challenges. I don't think any of them have ignored 6,500 calls that came in and I think he wants them to look at that. I think it is political irony that Andy Biggs is the biggest watch dog on Jan Brewer down there. Last session with Medicaid, this session with this. I don't think a lot of us would have pegged someone from his political camp and him to be that one.
Ted Simons: Audit comes in. Recommendations as they always are with these kinds of things, Governor and Flanagan look at it and say I don't think so where do we go from there?
Luige del Puerto: That is a good question. I think what Andy Biggs is trying to do, maybe he is trying to slow down this whole process of creating a new agency, or maybe not -- maybe the word is not slowing down, but taking slow, deep look into CPS. What was the problem then? Let's find an independent group that would look into it, not government official, not public servant, but a third party to look into it and see what is wrong with it. Come up with something. Let's compare notes. Maybe they come up with something better.
Mike Sunnucks: I think there are people down there that think that the report was meant to protect the Governor, director of DES at some level. And to Howie's point, are you just changing the stationery? A lot of people think. We have gone through this for a decade and haven't seen improvements.
Howard Fischer: Another thing to look at is the pendulum that keeps swinging back and forth. At the slightest sign of danger we take the kid from the home because we do not want to report another dead kid. On the other hand, we do everything we can do preserve the family because we know the kids do better if they're kept with the family.
Ted Simons: That pendulum has been swinging back and forth for years.
Howard Fischer: But that gets to the point, as Mike said, we have 49 other states, somehow I don't recall reading these sorts of issues. I'm sure they have them.
Ted Simons: I asked Charles Flanagan this when he was on the program. Have you looked at other states? Are there models out there? The response, it sounds like, yeah, but -- and the but is always Arizona is different. Every state is different. Every situation, every government, state government is different.
Howard Fischer: And every child taken from a home is different. But it is sort of like saying, you know, the papers that I work for versus their paper, they're all different, but certain basics in terms of what constitutes journalism. It’s the same thing.
Mike Sunnucks: Answering the phone. Answering the phone.
Ted Simons: That is a good start.
Mike Sunnucks: And maybe the folks in California or Utah have figured that out.
Ted Simons: Could this get testy down there?
Howard Fischer: Oh, yes, definitely can. Raw feelings over Medicaid and ruling --
Mike Sunnucks: Very testy, because I think the because of the arrogance from the executive branch.
Luige del Puerto: I think more united on this issue than anything else.
Ted Simons: Good to have you here. Thank you for joining us.