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December 11, 2003

Host: Michael Grant
Topics:
· The Governor on HORIZON;
· McCain-Feingold campaign finance law
In-Studio Guests:
· Arizona Governor Janet Napolitano;
· Arizona State University law professor Paul Bender

>> Michael Grant:
Tonight on "Horizon," the special session drags on, but the Governor and lawmakers have come to an agreement on Child Protective Services funding.

>>> Michael Grant:
Also, Governor Napolitano wins a victory in court over some vetoes she issued earlier this year.

>>> Michae Grant:
And the United States Supreme Court upholds most of the McCain-Feingold campaign finance law. We'll talk to ASU law professor Paul Bender about that.

>>> Michael Grant:
Good evening, I'm Michael Grant.

>> Michael Grant:
Welcome to "First Thursday, the Governor on Horizon." It's our monthly visit with the Arizona Governor, Janet Napolitano, where she talks about the big issues of the day affecting the State. Here now is Arizona Governor Janet Napolitano.

>> Michael Grant:
Special session is at 50 days. Looking back, was it a mistake to call it without consensus?

>> Governor Napolitano:
I don't think so. It is important to get the members here to really focus on Child Protective Services and corrections and not have those issues get lost in the general session. The plain fact of the matter is you can talk about achieving consensus ahead of time, but without the members here, and without that kind of interaction going on, it's logistically impossible to achieve consensus before you call a session. These are not mere technical changes we're talking about where you could go in and out in a day. These are substantive reforms that are necessary. We went back actually and looked historically at what had been the length of special sessions. We're not close to the record. This is really only a medium length of a special session. There have been some that have gone over 200 days. I hope we don't do that.

>> Michael Grant:
True. I think some of those might have been concurrent special sessions that were running with the regular session.

>> Governor Napolitano:
Or they started as a special and blend into a general, but in the end to paraphrase the Gettysburg address, history is not going to judge this legislature by how many days it took them to get something done, it's going to judge them by what ever happens by reforming Child Protective Services.

>> Michael Grant:
Let's move to that. You've got a compromise with the senate. Let's talk about the funding aspect, first. It's 21 million or so contrasted to the $35 million that you had asked for originally. What does that buy you?

>> Governor Napolitano:
Let me tell you what it does. First of all, there is two pots of money, one is total new money, which we are going to use to hire invest gathers so we can investigate 100% of the cases of abuse and neglect reported to us, plus increase the rate by which foster rate parents are paid. That hasn't increased from 1996. I asked for $27 million simply to continue the existing services that we provide under Child Protective Services. We agreed to split that at $13.5 million with the understanding that we will come back in the spring and ask for more. It was just a reluctance on behalf of the senate to give the full $27 million. They wanted the agency to have an incentive to look for other pots of money that they could shift over to CPS or savings that they could obtain with the understanding that we're going to continue all of the current services. We just couldn't agree on whether it's going to be $27 million in the end or $20 million in the end. I said let's do $13.5. We know we're going to do that. We'll split the baby, that's the essence of compromise. We get most of the new money we wanted, and we have a substantive reform package that goes with it that's a very good package.

>> Michael Grant:
I want to get to the substantive aspects in a couple of minutes. In relation to the money, you also agreed to have, I think, a couple or three members of the auditor general's office go into Department of Economic Security and help with that process?

>> Governor Napolitano:
Absolutely. To the extent we can make the Department of Economic Security budget transparent and easy to understand because it is the most complicated budget in state government, it will make our dialogue with the legislature easier as we negotiate the 2005 budget. So that was an accountability reform that I was perfectly happy to agree to.

>> Michael Grant:
What's your answer to House Speaker Jake Flake saying gee, that's funny that you found a million-eight in the DES budget. How do we know there isn't $18 million there or $35 million there?

>> Governor Napolitano:
Well, as we've explained to the speaker repeatedly, they have -- DES has, in the past years, been able to find some monies to move into CPS from unexpended accounts that they had, but those accounts now have been expended because those fund shifts have been disguising the fact that the legislature has chronically underfunded Child Protective Services in this state. You may get a million-eight here or some here and it sounds like a lot of money but when you are talking about the funds in DES, those are relatively minor amounts that arise when we start reconciling accounts at the end of each quarter. We have a little of that. That'll be taken care of and taken into account when we go back for whatever is needed above the $13.5 to continue existing searches.

>> Michael Grant:
Some of the substantive reforms. I think number one on that list from your standpoint and a lot of people's standpoints is the shift in the CPS mission to make the safety of the child the predominant factor?

>> Governor Napolitano:
Well, at least it recognizes that, yes, the safety of the child is the CPS mission. The current law, the one that we are attempting to amend doesn't Evan reference the safety of the child as a mission of CPS. This bill does much, much more. It provides for closer linkage between CPS and law enforcement at the outset of investigations, particularly cases where there is going to be or likely to be a criminal referral. It gives judges more options with which to deal with families. It gives us more options with which to deal with families in an attempt to keep children in their homes, if the parents will get drug abuse counseling, substance abuse counseling, alcohol abuse counseling, whatever it is that they need to have. It amends and we're going to talk a little bit about the open records law as it pertains to CPS.

>> Michael Grant:
Right.

>> Governor Napolitano:
There's a whole host of things. That's just the legislative part. You have to remember that the CPS advisory commission, which I appointed last January, has all sorts of things that we are doing administratively and through the executive branch to really reform this and change this agency from top to bottom. Those things are going into play now but we need the extra money to get some of that done.

>> Michael Grant:
Let's go to openness. One of the problems the house has with the package is it doesn't open up the process enough. Why not?

>> Michael Grant:
Well, I think the house needs to understand --

>> Janet Napolitano:
Well, I think the house needs to understand as does others that federal law, on which our federal funds are hinged requires that CPS records, not court records, but CPS records, the internal investigation, be kept confidential with certain exceptions, and what the Senate Bill provides is that we are going to open -- have the records as open as possible, consistent with federal law. We really have no option about that, so it's really, I think, a false fight to have, because we have the federal law overlay. Now, over time, federal law may liberalize in terms of opening records, in which case, our law would go along because we're going to say as open as federal law requires.

>> Michael Grant:
I guess what many of us don't understand about this conflict is county attorney Rick Romley continues to insist that the process can be more open than it currently is. Does he read that law differently? Does he have a different point of view on it?

>> Governor Napolitano:
The county attorney, with all due respect, does not handle civil CPS matters. He only gets the criminal cases and he has 100% access to everything in CPS when there is a criminal referral. The senate there was a funny exchange because in the senate committee they said okay, we'll write the open records law differently -- although I think as it a distinction without a difference that only a lawyer can love, but in exchange, we want the county attorneys to make their files available on these cases so we know what was prosecuted and what wasn't and why. The county attorney resisted that. It's like well, let's understand what are we talking about here? We're talking about incredibly sensitive personal information about children and families, and so there has to be some recognition that these are not just any files, but, again, I'm all for openness as well, and I say, look, let's open it as far as federal law allows.

>> Michael Grant:
Here is the concern. Most people would say listen, we don't want to harm the children. We don't want to see those records that have these kinds of details and those kinds of things. On the other hand, what we do want is some assurance that in fact Child Protective Services has not mishandled a file, that its actions have been appropriate.

>> Governor Napolitano:
I understand that, and I totally agree. In this bill, we've built in all kinds of mechanisms to make sure that there can be independent and outside evaluation of what CPS has done in a particular matter. That is contemplated, because one of the -- you know, probably the most -- in a way, penalized entities in this whole open records dispute historically has been CPS because they have, you know, they can be in a situation where one parent says something and goes to the press says, CPS da-da-da-da-da, which may or may not be true, but CPS is hamstrung. You they can't respond. You get misleading reports in the press and CPS is hamstrung from responding to them. This bill deals with that as well.

>> Michael Grant:
Are you confident that if this bill passes, coupled with the other executive reforms that you've already discussed, that we will get greater accountability inside CPS than we have had historically?

>> Governor Napolitano:
I think not only that, but I think ultimately the test is will we have better outcomes for children and families? That's how we ought to measure what we're doing here. We will never prevent all child abuse or neglect. Sorry to say, but we won't. But in cases that we know about, we can seek to improve the outcomes we obtain for the children and their families. I think this bill as it came out of the senate gives us the tools to do that, coupled with the other things we're doing throughout the executive branch.

>> Michael Grant:
Now, let's shift to the house side. Rick Romley and the house indicated this compromise is unacceptable. Any idea where the house is at this moment?

>>Governor Napolitano:
Yeah, I think the house Republican leadership are meeting with the senate Republican leadership. When I'm done here, we'll see if we can stay tonight and get this worked out.

>> Michael Grant:
What sort of vibrations are you getting on the house side? They have been fairly entrenched on the house side, both as the money and some of the substantive reforms.

>> Governor Napolitano:
Yes, but I think there was a big recognition -- they were heavily criticized for the bill they passed out which had very little funding, as many child advocates said, they didn't believe you could take CPS and make a bad situation worse but the house did and their members heard from the public. The Senate Bill that we negotiated passed out of the senate 25-2. 15 of the 17 Republicans in the senate voted for it. It would have been 28-2, except three of the Democrats couldn't get to the floor on the day the vote was taken. Broad bipartisan support. I think it reflects that this bill does have the accountability you are talking about, that it does provide the necessary funding to allow us to staff appropriately, that it does help us reform the agency. Now it's up to the house to step up to the plate. It's time for them, you know, the senate had to give to get that bill. I had to give to get that bill. It's time for the house to do also so we can get out of here.

>> Michael Grant:
Assuming that logjam is cleared in some form, fashion or another --

>> Governor Napolitano:
Uh-huh.

>> Michael Grant:
You've got on the prison side of this equation, senate has approved professional beds.

>> Governor Napolitano:
Right, temporary beds.

>> Michael Grant:
Temporary beds. The house wants some permanent underlying private prison beds. Will there be movement on that one if you get passed the C. S issue?

>> Governor Napolitano:
I think so. We had a discussion with the speaker yesterday in his office with representative cope nick key who is going to chair it. I can see numerous opportunities to resolve that, if we can get the conference set and get people in a room and say okay, how are we going to resolve the difference between the house and senate in such a fashion that the Governor will sign the bill. Sometimes when you get pushed up against late night and it's been dragging on for a while now, the members are getting restless, people have plans to leave town, the holidays are coming up, sometimes that finally adds a sense of urgency to let's get this done.

>> Michael Grant:
If there is a portion of that bill that requires private prison beds, permanent private prison beds, will you sign it?

>> Governor Napolitano:
We'll see.

>> Michael Grant:
Okay. Let me move to the lawsuit you won before the Supreme Court.

>> Governor Napolitano:
Yes.

>> Michael Grant:
Now, you lost that lawsuit as an attorney, you've won it as Governor.

>> Governor Napolitano:
I would just as soon win it as a party. I didn't lose it as an attorney. I lost part of it as an attorney.

>> Michael Grant:
Actually the Governor won that suit twice. I mean, it happened to be Governor Symington obviously the last time and Governor Napolitano this time. What about the legislature's response that says, well, okay, but we're going to be much more careful about how we draft budgets in the future, and not give the executive the sort of lump sum reduction that we were giving in this bill to try to give the executive more flexibility.

>> Governor Napolitano:
Well, I think two things. One is, we should strive, the executive and legislative branch to resolve our difference without resorting to court action. That's one of the reasons that I regretted that they filed the case at all because when you look at the overall budget, people like what happened when we restored funding for the arts, when we made sure that K-12 was held harmless, when we protected a few small programs like emergency dental services for low income seniors. People like that, and we also had a way to pay for it. The budget remained in balance, and it was a better budget as a result. So I hope the lesson we both learn is that it is to our mutual advantage to be working through the budget together at the table rather than the process the legislature used last spring, which was to do it without the Governor's knowledge or consent, and then, you know, feign surprise when I said look, I'm not a potted palm and I think this budget can be better and I exercised my constitutional power to make it so.

>> Michael Grant:
But I understand at least -- I think in good faith -- because I talked to some of them, they wanted to make reductions that you obviously did not agree with, but they wanted to do it in a fashion that would give the executive more flexibility. Is that ultimately a downside to this ruling?

>> Governor Napolitano:
No, I don't think so. They still have the option to do a lump sum budget. I think given the executive flexibility is a good idea. So, what they are not going to do in the future is, say, well they appropriate, for example, $150 million here and then in another line say but we're going to take away 5%. Let's have lump sum budgets but give me the real number so I can make a decision about whether that number is acceptable or not.

>> Michael Grant:
Okay, before you get out of here --

>> Governor Napolitano:
Yes?

>> Michael Grant:
-- Arizona has been declared a flu outbreak stake. What does that mean?

>> Governor Napolitano:
This is a designation by the Centers for Disease Control, that there is a wide-spread flu epidemic in Arizona, meaning that they will redeploy vaccine supplies in Arizona. We should receive several thousand additional vaccines in the next few days.

>> Michael Grant:
That quickly?

>> Governor Napolitano:
Yes.

>> Michael Grant:
Arizona Governor Janet Napolitano, we'll not see you before the holidays, merry Christmas.

>> Governor Napolitano:
Same to you, thank you very much.

>> Michael Grant: It was a major decision yesterday by the United States Supreme Court. The court upheld the campaign finance law known as McCain-Feingold, named after its sponsors, Arizona Senator John McCain and Wisconsin Senator Russ Feingold. We'll talk about the decision, but first, here are some basics about the court's ruling.

>> Reporter: The court ruled 5-4 upholding many parts of the bipartisan Campaign Reform Act of 2002. Upheld in the 298 page opinion was a ban on soft money. That's unlimited contributions given by corporations, unions and wealthy people to political parties and officeholders. Also upheld was a prohibition on television ads for candidates by unions and corporations, 30 days before a primary election and 60 days before a general election. Corporations and unions can air political ads before primary and general elections if they use fully documented hard money, money regulated by the government. Individual donations are capped at $2000 for general and primary elections. Not all of McCain-Feingold was upheld. The court struck down a provision that banned minors from giving to national parties or federal candidates. Also overturned was a ban on some party expenditures that don't involve a candidate. Justices Sandra Day O'Connor and John Paul Stevens wrote the Majority opinion. Also in the majority were Justices Ruth Ginsberg, Steven Breyer and David Souter. Chief justice William Rehnquist and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas voted in the minority and each wrote separate dissents.

>> Michael Grant:
Hear to talk about the ruling is ASU law professor Paul Bender, who I assure you has read all 298 pages.

>> Paul Bender:
Every word. Do you want to take it home tonight? Bedtime reading.

>> Michael Grant:
I'm glad you offered it. Paul, is the most surprising aspect of this thing the court's upholding of the advertising ban effectively to early august in an election cycle? It's 60 before a general and 30 before a primary?

>> Paul Bender:
Well, they upheld a ban on unions and corporations, including nonprofit corporations, doing ads within the 30-days before primary or 60-days before the general election, that mention the name of a candidate. That's a pretty narrow restriction on advertising.

>> Michael Grant:
But, for example, as I understand this ruling, and we'll lay to one side, I think there is a class of corporations that might be able to do it, but as I understand it, the Sierra Club now in mid-September could not take out an ad and say "don't vote for George Bush because of his support of the healthy forest initiative"?

>> Paul Bender:
If they are a corporation, unless they come within the narrow exception that you mentioned, they could not do that, but you could take out such an ad and, of course, the parties can, and the candidates can. So it's a very narrow exception on expenditures. That was the surprising part of it. The most important part of the decision is the upholding of the limitation on soft money contributions. The court -- there had been a big loophole in prior campaign finance reform which prohibited people from giving more than a thousand dollars to a federal candidate, but permitted people to give as much as they wanted to political parties, which then could use the money as long as they didn't come out and say "vote for Joe Blow, vote for George Bush, vote for Al Gore. They could use the name of the candidate, but as long as they don't say vote for/vote against --

>> Michael Grant:
There were 12 or 14 words that you could not use.

>> Paul Bender:
That was an enormous loophole. Hundreds and hundreds and millions of dollars of soft money went through the national parties and went essentially for elections. Congress tried to reform that by limiting the soft money. They raised it to $2,000 a candidate. Every person can give $2,000 to each candidate in every election cycle but that's all you can give, and if you give it to a party, it's also limited to the $2,000. So that's the major thing that the legislation did that was upheld. That to me was not a surprise because the court had in the past held that you can regulate the amount of contributions because of an anti-corruption rationale. If people gave too much money the candidate would be beholden to them.

>> Michael Grant:
That was Buckley v. Vallejo. What the court really said in Buckley was you can restrict contributions to the political process because of the potential for corruption --

>> Paul Bender:
Or the appearance of corruption --

>> Michael Grant:
-- But you can't restrict expenditures in relation to the political process. From that standpoint, that's why I say that I found the ban on advertising to be the surprising aspect of this, because it seems to me it went beyond Buckley.

>> Paul Bender:
It did permit the regulation of expenditures, but the court did that for the same anti-corruption rationale that it used to uphold the soft money ban. It said if we permit people who can't give a lot of soft money directly to a candidate or a party to give it to a corporation or a union and then let the union use the money to promote the election of the candidate, that would be an enormous way around the soft money ban, and so if we want the ban on soft money to be effective, we've got to stop unions and corporations from being the con due its of soft money. It's unions and corporation that is have been the con due wits of tremendous amounts of money in the past. That's an exception to the prior ruling that you can't limit expenditures. They did it because the limits were needed in order to serve the anti-corruption rationale. It's important to point out that this ruling and this legislation just deals with one part of the problem in this country about campaign finance, which is the possibility of buying candidates. The other part of it, which is the enormous amount of money that's spent on elections and they almost never seem to end and they turn into media circuses and the candidate with the most money tends always to win, this doesn't deal with that at all. President Bush has gone around the country raising enormous amounts of money at $2,000 ahead. Dean is doing the same thing.

>> Michael Grant:
To the extent, though, Paul, that I want to get together with people of like mind and in a large population, one of the best way to his do that is through a corporate forum, so that I can participate and exercise my free speech rights in the political process, why isn't that a violation, though, of the First Amendment when that right gets restricted?

>> Paul Bender:
Well, you can get together with people and you can publish whatever you want. First of all it only applies to television and radio. You can do whatever you want before the 30 or the 60-day limit. Even within the 30 or 60-day period you can talk about issues, you can't mention candidates names. It limits your First Amendment right, that's true, but it limits it in the name of having a noncorrupt political system and in the name of having fair elections. The First Amendment is not an absolute right. The rights can be limited in the name of fairness, in the name of equality and anti-corruption. I think that's what's going on here.

>> Michael Grant:
But in a mass society when -- to a certain extent, money does talk or allows you to speak, to buy radio and TV time and that kind of thing.

>> Paul Bender:
When you are going to court, would you be expected to buy more time to argue before an appellate panel if you had more money? No. The two litigants in an appeal have the same amount of time. They don't -- we don't sell time. We give it out equally, and similarly, in elections, I think you can say it's an election. It's a contest. We want the election to be decided on the merits, not on who has the most money, and therefore limitations of that kind, I think are reasonable, even though this legislation doesn't impose them, but the court, you're right, is taking a first small step towards permitting that kind of regulation in order to improve the quality of the political process so that money doesn't dominate it.

>> Michael Grant:
Let me bring this down to the state level, obviously this is federal campaign finance law. Any reason why states couldn't enact similar restrictions on election cycles?

>> Paul Bender:
No and some have. They can put limitations on contributions and now the same limitations on union and corporate expenditures within a few days of the elections.

>> Michael Grant:
For example, there had been, I know, in Arizona, there was a law which was stricken that required some advance notice on an attack piece and that was stricken as unconstitutional. Do you think that will be rethought?

>> Paul Bender:
That was not involved in this case, but, yeah, this case opens up those possibilities. I think that's right. Why should somebody be able the night before an election do an attack ad that the opponent doesn't have any ability to answer. That is the First Amendment going too far if you have the right to do that.

>> Michael Grant:
You don't subscribe to the theory of all is fair in love and politics?

>> Paul Bender: No.

>> Michael Grant:
ASU law professor Paul Bender, we appreciate you reading 298 pages.

>> Paul Bender:
I only read the first 200.

>> Thanks to you very much for joining us this evening. I'm Michael Grant. Have a pleasant one, good night.

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