The ruling of a judge in a case involving Tom Horne’s 2010 campaign could open the door for smear campaigns against candidates by groups that don’t have to disclose who is funding them.
Maricopa County Superior Court Judge Crane McClennen ruled that it was wrong of prosecutors to charge that the Committee for Justice and Fairness had violated state campaign finance laws. More to the point, the judge said laws requiring listing of contributors in cases like this are unconstitutional.
Secretary of State Ken Bennett said he believes McClennen got it wrong and vowed to appeal.
“I think people in Arizona expect that if someone is trying to influence an election they should report those contributions and expenditures like everyone else who’s trying to influence an election,” he said.
And Bennett said if the laws need to be tweaked a bit to make them constitutional, he will push for the changes.
But attorney Tom Irvine who represents the committee said no amount of alterations can make the requirement legal. He said as long as those running commercials do not specifically ask people to vote for or against a candidate, they can be run by groups funded by anonymous donors.
Courts have made it clear that states are allowed to impose reporting requirements on “express advocacy” of someone’s election or defeat.
In clearest terms, that means use of what courts have called the “magic words” like “vote for,” “elect,” “defeat,” or “reject” when referring to a specific candidate.
But Arizona law also says reporting is required when there is advertising, mailers or other communications “that in context can have no reasonable meaning other than to advocate the election or defeat of the candidate.” Factors include putting the candidate in an unfavorable light and the timing of the communication.
In this case, the committee aired a commercial in the summer of 2010 — when Horne was seeking election as attorney general — saying that as a legislator he voted against tougher penalties for statutory rape. It also said when he was on the state Board of Education he voted to let a teacher back in the classroom who had been caught viewing child pornography on a school computer.
It also told viewers to “tell Superintendent Horne to protect children, not people who harm them,” giving his office phone number.
Horne unsuccessfully sought to have the commercial stopped, at least in part because of a falsity: The materials viewed by the teacher were of standard adult pornography.
But subsequent to the election, Maricopa County Attorney Bill Montgomery ordered the committee to comply with Arizona campaign finance disclosure laws, an order upheld by an administrative law judge.
McClennen, in a ruling earlier this month, overturned that decision and said the committee’s commercial was “issue-oriented speech” which is not subject to campaign laws. More to the point, he said the disclosure statutes as they apply without the “magic words” are unconstitutional.
Bennett said McClennen got it wrong. He said the law applies a “reasonable man” standard: It’s express advocacy — and therefore subject to disclosure laws — if a reasonable man would consider that, given all the factors, it’s designed to influence an election.
But Irvine said that amounts to creating an “I know it when I see it” violation of the law.
Bennett disagreed. And he said the commercial about Horne, which it turns out was financed by the Democratic Attorneys General Association, proves his point that it was designed to convince people to vote against him.
“Why would anyone run an ad like that during an election that I was participating in, if you were advocating for things that were over and done with,” Bennett said, noting that Horne was in the last few months of being state schools’ chief.
He said that not only was the commercial airing during Horne’s campaign for attorney general but also had images of Horne’s campaign signs in the ad. Bennett said it makes no sense to an ordinary person that the commercial was designed to get people to tell Horne he should be tougher on issues like pornography.
Horne, in court papers, said the commercial cost $600,000.
Irvine said people running ads are entitled to say pretty much what they want without disclosing funding sources “if you don’t use the magic words.”
“You can’t have a government regulator saying ‘This one’s regulated’ and ‘that one’s not,’” Irvine said. “It has to be definite and not guesswork.”
Irvine also said that adopting Bennett’s approach, especially his contention that prior acts of those seeking reelection or a new office are off limits, runs into other constitutional problems.
“What you’re saying is that for three or four or six months that elected official is immune from criticism or discussion of what they were doing in their present job,” he said.
As an example, he cited Horne’s very public dispute as school superintendent with the Tucson Unified School District over its “ethnic studies” program. Horne concluded that the courses ran afoul of new state laws and threatened to withhold state funding.
Irvine said Bennett’s interpretation of campaign finance laws could require anyone who wanted to run commercials critical of Horne’s actions to register as a committee and disclose all of its funding. And what’s worse, Irvine said, is the “know it when you see it” standard would leave those who want to criticize Horne’s actions in that matter unsure of whether they were breaking the law.
Bennett said he cannot accept the idea that someone can escape financial disclosure simply by avoiding the “magic words.”
“There’s always going to be lines,” he said, though he said those lines “might get pretty fine” between what is an informational piece and what is express advocacy.
Bennett said if appellate judges decide the lines in the current law are unclear, then the answer is to recraft them.
Irvine said that won’t work.
“Can the Legislature try to concoct a ‘know it when you see it’ in sheep’s clothing?” he asked. “Well, if they do it will be declared unconstitutional.”
One side note to the whole fight is that Horne is using the issue of the committee’s commercial as a defense of sorts to the charges against him that he and his election committee illegally coordinated efforts with an independent expenditure committee run by Kathleen Winn. In a formal response to that charge, Horne said that Felecia Rotellini, his Democratic foe, attended an event with the Democratic Attorneys General Association a month before it funded the commercial.