PHOENIX — A judge on Thursday rejected a bid by an aide to Attorney General Tom Horne to have the limits on donations to candidates declared unconstitutional.
Maricopa County Superior Court Judge Sally Duncan sidestepped the legal issue of whether the caps — ones that the Secretary of State's Office said Horne and Kathleen Winn violated — interfere with their First Amendment rights. Instead, she said that Winn has no legal standing to challenge the laws, at least not at this point.
In essence, Duncan said Winn — and Horne — will have to wait until Yavapai County Attorney Sheila Polk decides whether to pursue charges against the pair.
The ruling disappointed Tim LaSota, Winn's attorney. He was hoping for a ruling in his favor, a move that likely would have tossed the entire question of whether Winn and Horne might face campaign finance charges.
But the underlying question will not go away, and the ultimate answer will determine exactly how much money individuals can give and candidates can accept.
Even the U.S. Supreme Court has agreed to look at the question of whether current limits on contributions to federal candidates are unconstitutionally low.
At issue is $513,340 spent on a last-minute TV commercial for Horne's 2010 campaign by Business Leaders for Arizona. The group was run by Winn, who had worked on Horne's primary campaign but left to set up an independent committee for the general election.
Maricopa County Attorney Bill Montgomery, who got the initial report from the FBI, said the agency turned up evidence of coordination between the committee and Horne, which would violate multiple campaign-finance laws.
Montgomery turned the FBI findings over to Secretary of State Ken Bennett, as required by law. After some discussion — and a court ruling — the file wound up in the hands of Yavapai County Sheila Polk.
An aide said Thursday the issue was still under investigation.
In his bid to short-circuit that process, LaSota argued to Duncan that Winn can't be accused of breaking the law because the law itself is unconstitutional.
He said that the Democrat Attorneys General Association, with the backing of Democrat Felecia Rotellini, spent $1.5 million in the final days of the 2010 campaign attacking Horne, falsely charging that he favored statutory rape, child pornography and pedophilia. Those attacks, LaSota said, caused Horne's support in polls to drop 8 percent.
By contrast, LaSota said Horne was limited to taking no more than $840 from any individual, curbing his ability to respond. That led to the last-minute spending by Winn's committee — the very spending at issue.
In his legal papers, LaSota did not address whether there was any coordination between Winn and Horne. Instead, he argued that the $840 limits “deprived Horne's supporters of their ability to exercise their rights by helping him raise the resources necessary for effective campaign advocacy.”
“These limits were violative of Winn's and Horne's free-speech rights, rights to equal privileges and immunities, and equal protection of the law,” LaSota wrote.
Duncan, however, accepted arguments by Joe Kanefield, representing Bennett's office, that she should kick the case to the curb.
Kanefield pointed out to the judge that Polk has yet to decide whether to seek civil penalties against Winn or Horne, the remedy under campaign finance laws. Only if Polk proceeds, he argued, does the question of the campaign limits become relevant.
Thursday's ruling comes just two days after the U.S. Supreme Court heard arguments on behalf of a Shaun McCutcheon, a Republican from Alabama who is CEO of Coalmont Electrical Development. He is challenging a federal law which puts an absolute limit of $123,200 of how much any individual can donate during any two-year election cycle.
Attorneys for the government argued the limits were necessary to prevent corruption.
The court action also comes on the heels of a decision by Arizona lawmakers to sharply increase campaign finance limits here, also based on the same contention that the current caps are unconstitutionally low.
That law, which took effect last month, allows legislative candidates to take up to $4,000 from individuals and political action committees, up from $440.
It also scraps the old $14,688 limit on how much candidates can take from all PACs for any election. Also gone is the $6,390 lid on the amount any one individual or PAC can give to all candidates in any given year.
That change is being challenged by the Citizens Clean Elections Commission and its supporters as being illegal. So far, though, a trial judge rejected their contention that these limits are tied to the Clean Elections Act which, having been approved by voters, cannot be altered by the Legislature without the required two-thirds vote.