By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — The attorney for the top two Republican lawmakers asked a judge Wednesday to block implementation of a 2022 voter-approved law designed to guarantee that people know who is trying to influence elections.

Brett Johnson argued that Proposition 211 is an infringement on the constitutional powers of the Legislature. He said that’s because it allows the Citizens Clean Elections Commission, charged with enforcing the new “dark money” law, to make any rules its wants, rules that are not subject to any legislative approval.

“It is so broad that it is injurious to the legislative body, which is in this case is the Legislature,” he told Maricopa County Superior Court Judge Timothy Ryan. And Johnson, hired by House Speaker Ben Toma and Senate President Warren Petersen, said the whole voter-approved statute collapses if the judge determines that the rule-making authority is unconstitutional.

But Assistant Attorney General Nathan Arrowsmith said the arguments by the two GOP lawmakers miss a critical point: The Arizona Constitution actually gives the people the power to make their own laws. More to the point, he told Ryan, that allows the voters, as the ultimate lawmakers, to take powers away from the elected Legislature.

“The people may exercise the same legislative power that the Legislature can,” Arrowsmith said. And that, he said, includes giving powers to the commission to make rules to ensure special interests cannot hide from the public the money they are spending to get certain people elected or certain ballot measures approved or rejected.

“Essentially, its a case where they’re saying they don’t like what the voters have done,” said Arrowsmith.

“And they don’t like that they can’t change it,” he added. That’s because a provision of the Arizona Constitution — enacted in 1998 by voters — specifically bars lawmakers from repealing anything approved at the ballot box.

What Arrowsmith said the Republican leaders are doing is asking Ryan to do in court what they can’t do themselves: overturn Proposition 211 because of some perceived injury to the legislative process.

“But the Legislature isn’t injured simply because they don’t like how the voters have exercised legislative power,” he said.

Approved by voters in November by a nearly 3-1 margin, the initiative says any organization that spends more than $50,000 on a statewide race — half that for other contests — has to publicly disclose anyone who has given at least $5,000.

More to the point, the measure, crafted in part by former state Attorney General Terry Goddard, says those recipient groups have to trace the money back to the original source.

Arizona always has had requirements for disclosure of political spending. In fact, Arizona’s first constitution actually required lawmakers to approve election disclosure laws to publicize “all campaign contributions to, and expenditures of campaign committees and candidates for public office.”

But attorney David Kolker, representing the backers of the initiative, said that was undermined in a 2010 decision by the U.S. Supreme Court in the Citizens United case. That ruling enabled corporations and other outside groups to spend unlimited funds to influence elections.

“Big spenders have found it much easier to pass millions of dollars through various kinds of intermediaries before it’s spent on election ads,” he told Ryan. “And so disclosure of donors can become almost meaningless if all it reveals is the name of a front group, like ‘Americans for a Brighter Future’ instead of the true, original sources of funding.”

Voters apparently liked the idea, with 72% of voters approving Proposition 211.

“It doesn’t matter,” Johnson said of the margin. “An unconstitutional law is unconstitutional.”

But James Smith, representing the Citizens Clean Elections Commission, said even if some of the rules might overstep the commission’s powers — a point he does not concede — that is no reason to void the entire voter-approved law.

He also said any injury to the Legislature by the commission exercising power over campaign finance requirements is not only speculative but pales in comparison to the effect on voters. That is a significant issue as any judge, when considering whether to bar enforcement of a law, has to consider the “balance of hardships,” specifically who would be more injured if the law is enforced versus whether it is blocked.

“We also need to consider the hardship to 1.7 million voters who voted for Prop 211 and realize an injunction means at least one more election cycle without disclosure,” Smith said, saying such a move would result in “irreparable injury” to the state and its voters.
He also told Ryan there’s another factor he must consider before staying enforcement of what is a presumably valid law, including one approved by voters: whether such a move is in the “public interest.”

“The public interest may be declared in the form of a statute,” Smith said.

“Well, here our statute is Prop. 211,” he said, even if that statute was approved by voters under the constitutional power to create their own laws. “Our public policy is clear: Disclose the sources of funding election advertising.”

This isn’t the first foray by the Republican-controlled Legislature into trying to void what voters have approved. In fact, it nearly mirrors what happened in 2000 when voters stripped lawmakers of their power to draw legislative and congressional districts — districts they often drew to protect their majorities — and gave it to the Independent Redistricting Commission.

Legislative leaders challenged it as an illegal intrusion into their own powers.

That case went all the way to the U.S. Supreme Court. But the justices rebuffed the lawmakers, saying it was clear Arizona voters had the authority to create a commission, independent of the Legislature, to draw district lines.

“The people themselves are the originating source of all the powers of government,” the justices ruled.

Lawmakers also challenged the decision by voters to create the Citizens Clean Elections Commission itself in 1998, a system that both limited campaign donations and provided public funding to candidates who did not take special interest money.

The Legislature lost that argument. But a separate lawsuit that went to the Supreme Court — this one not by lawmakers — voided a provision of the law that had provided matching funds to publicly funded candidates when those with private donations exceeded certain limits.

More recently, Republican lawmakers challenged Proposition 208, approved by voters in 2020.

That measure, approved by a 51.7% margin, was designed to impose an income tax surcharge on “high-income” taxpayers to raise $940 million a year to increase state aid to public schools. But the levy never took effect after the GOP leaders got courts to rule it cannot be collected because it bumped up against a constitutional limit on education spending.

Another case involves the 2006 voter approval of a measure that imposed a new tax on tobacco products, with the cash put into a fund, administered by a new agency, to support early childhood development and health programs. But lawmakers, in balancing the 2009 fiscal year budget, ordered $7 million in interest income — money that would have gone to programs — to be transferred into the state’s general fund.

That forced backers of the measure to file suit. And the Arizona Supreme Court ultimately ruled that move by the Legislature ignored what voters had legally approved.

Ryan said he plans to issue a ruling by the end of the year on whether Proposition 211 can take effect and the true sources of campaign funds disclosed. But he also agreed to stay whatever he rules for another two weeks to give whichever side loses a chance to seek appellate intervention.