Arizona court rejects biggest source for public campaign funds
By The Associated Press
06.19.02
Printer-friendly page
Editor's note: On June 19, the Arizona Court of Appeals ruled that the state can temporarily continue handing out campaign money to clean-elections candidates. Lawyers challenging the surcharge had asked that the entire system be ruled unconstitutional and the surcharge money be refunded. The appeals panel denied that motion on June 19, allowing the commission to pay candidates until July 8, unless extended by either the state Supreme Court or Court of Appeals.
PHOENIX — A state appeals court panel has overturned the chief funding source of Arizona's public financing system for state election campaigns, ruling that a surcharge on traffic tickets and criminal fines is unconstitutional.
The 10% surcharge "imposes an unconstitutional restraint on the exercise of free speech," Judge Sheldon H. Weisberg wrote in a unanimous June 17 decision by a three-judge Court of Appeals panel.
The challenge to the surcharge was filed by state Rep. Steve May, a Paradise Valley Republican who is running for re-election using traditional, private fund raising.
May argued that the surcharge on a 1999 traffic ticket violated his rights to free speech guaranteed by the federal and state constitutions by singling out people to involuntarily support candidates financially.
"You're forcing me to speak," May said on June 17. "One of the basic tenets of freedom of speech is the right not to speak."
The state commission that administers the system argued there is no relationship between the individuals who are fined and a particular campaign. The commission also argued that the system furthers speech and gives more candidates the opportunity to run for office.
The ruling immediately raised questions about whether the ruling would affect funding already distributed or expected for candidates in this year's election.
"They should appeal quickly," said former state Sen. George Cunningham, a Tucson Democrat who is expecting $110,000 of Clean Elections funding for his campaign for a Corporation Commission seat. "My whole campaign has been based on that approach."
The Arizona system's surcharge provides approximately two-thirds of the Clean Election system's projected funding for this election cycle. The rest of the system's current funding comes from voluntary income-tax credits.
The ruling in May v. Bayless bars the secretary of state and state treasurer from "implementing and performing their studies in administering and enforcing" the provision of state law on the surcharge.
The ruling also said the rest of the Clean Elections law stands, but the ruling made no mention of what happens with money raised so far under the surcharge.
Meanwhile, the agency in charge of public financing for campaigns was still handing out money to candidates yesterday despite the court ruling.
The ruling will be appealed to the Arizona Supreme Court and does not directly prohibit the Citizens Clean Elections Commission from disbursing money to candidates, executive director Colleen Connor said yesterday.
"We're mandated to disburse money," she said. "We are continuing to fund candidates until a court tells us otherwise."
Arizona voters authorized creation of the Clean Elections system in 1998. The system provides public financing for participating candidates who qualify by collecting a specific amount of $5 donations from registered voters. Participating candidates can't accept other contributions.
The system was first used in 2000 by several dozen legislative and Corporation Commission candidates.
This year, nearly all candidates for statewide offices in state government, from governor on down, as well as numerous legislative candidates are running under the system.
The ruling will be appealed to the state high court, said Tim Hogan, a lawyer for the Clean Elections Institute. The advocacy group supports the system and is a party in the court case.
State House Speaker Jim Weiers noted that after months of uncertainty, legislative candidates just recently learned what districts would be using this year.
"As you look at this, it throws the election process in even more chaos," said Weiers, a Phoenix Republican who is relying on private funding for his campaign for state Senate. "If I was a candidate running under Clean Elections, I'd be concerned."
A lawyer for May said the decision was a "landmark ruling not only for Arizona but for the country" because of interest across the country in Arizona's system. Maine, Massachusetts and Vermont have similar systems.
"This case stands for the proposition that campaign contributions must be voluntary," said attorney Clint Bolick of the Institute for Justice. "What is happening in Arizona is considered the next big step in campaign-finance reform, and unfortunately in the rush to reform campaign contributions the Clean Elections Act runs afoul of the First Amendment."
May said he hoped to force the state commission to refund the surcharges and participating candidates to return the money they already have received.
"The state of Arizona has to make immediate amends to the taxpayers," May said.
Bolick said it was unclear whether money would have to be returned but that it was clear that additional funding could not be distributed. He noted that the Clean Elections law allows for funding to be reduced proportionally if the system runs short of money.
"At this point in the election it seems to me that we've been looking for certainty and this opinion gives us that. I would hope that any further appeal should await the completion of this election cycle so that candidates can plan accordingly," Bolick said.
A top official for Citizens Clean Elections Commission said approximately $1 million has been distributed so far to approximately a dozen candidates.
Deputy Director Matthew Shaffer said he expects the agency will able to distribute about $16 million it has collected but not distributed to participating candidates this year.
That's nearly the entire amount the commission projects it will need for all the candidates who eventually file for funding, Shaffer said. "We probably could still make it."
Hogan, the Clean Elections Institute lawyer, said the appeal would mean the ruling would not take effect without action by the state Supreme Court. "We're probably several months away from that point," Hogan said.
However, he said he didn't know what stance the Attorney General's office would take.
Attorney General spokeswoman Pati Urias said officials were reviewing the ruling and had no immediate comment on its impact. She said Chief Deputy Tom Prose would oversee the matter and that Attorney General Janet Napolitano, a Democratic gubernatorial candidate who has received Clean Elections funding, would not be involved.
The ruling overturns one by Judge Colleen McNally of Maricopa County Superior Court. She upheld the surcharge but overturned another funding source — $100 annual fees imposed on lobbyists for private interests and trade groups.
The state did not appeal McNally's ruling overturning the lobbyist fees.
Update
Arizona high court upholds campaign-funding source
Overturning lower court, justices rule using 10% surcharges on criminal, traffic fines to finance elections doesn't violate free speech.
10.14.02
Previous
Arizona judges to consider challenge to election financing
Opponents appealed ruling that upheld constitutionality of 10% surcharges on fines for crimes and traffic violations to finance elections.
04.19.02
Related
Critics lambaste clean-elections effort as curtailment of speech
Analysis Hundreds of candidates in four states are running publicly funded campaigns, but some dub movement 'welfare for politicians,' while others say it limits political speech.
09.10.02
