‘Dark Money’ appeal goes to the Arizona Supreme Court

In early August, the Arizona Court of Appeals held that the Committee for Justice and Fairness, financed by the Democratic Attorney Generals Association which spent about $1.5 million attacking Republican Tom Horne in the 2010 attorney general’s race, can be forced to disclose the source of their cash even if their commercials don’t specifically advocate for anyone’s election or defeat. Read the Court of Appeals Opinion Here (.pdf). I provided you the background on this case in Arizona Court of Appeals rules on ‘dark money’ disclosures disclosures (expect an appeal).

Just as I said, the case is now up on appeal to the Arizona Supreme Court. Arizona Supreme Court to review political attack ads:

The state’s high court is being asked to decide when groups attacking politicians up for election have to disclose who is financing the effort.

Attorney Tom Irvine wants the Supreme Court to rule only groups which run commercials specifically asking viewers to vote for or against someone must spell out the source of the cash.

He argues any spots without certain “magic words” like “vote for,” “elect,” “support” or “oppose” are exempt from laws saying who is paying for it, no matter how nasty the attack and no matter how close to election day it runs.

What the justices ultimately decide will govern what voters do and do not know about who is behind the attack ads they will see for years to come.

Irvine is representing the Committee for Justice and Fairness.

In October 2010, as Tom Horne was running for attorney general, the group ran a commercial which said when he was a legislator he “voted against tougher penalties for statutory rape.” And it said more recently, as state schools chief and a member of the Arizona Board of Education, he voted to allow a teacher who had been caught “looking at child pornography on a school computer” back into the classroom.

The ad urged viewers to “tell Superintendent Horne to protect children, not people who harm them.” It displayed a photo of Horne and his phone number at the Department of Education.

It was later learned the cash behind the $1.5 million effort came from the coffers of the Democratic Attorneys General Association. And it came as Horne was running against Democrat Felecia Rotellini.

But Irvine contends all that is legally irrelevant. He said the committee did not need to even report it was spending money on the 2010 race because it really was not. In essence, Irvine says the ad was “issue-oriented speech” designed solely to educate people about Horne. And those, he said, are exempt from financial disclosure laws.

He said only commercials engaged in “express advocacy” of who to vote for or against are covered by the law.

How that distinction is made is now before the high court. The way Irvine sees it, the only way to decide it is by exactly what it says. If it does not say who to vote for or against, it is simply educating voters.

But that’s not what Arizona law says. Aside from the use of the “magic words,” the statute also says an item can be considered advocacy if the words “in context can have no other reasonable meaning other than to advocate the election or defeat of one or more clearly identified candidates.”

In this case, the Court of Appeals, looking at the ad, said it clearly crossed that line.

The judges said while the commercial did not identify Horne as a candidate for attorney general, it did use his name, photo and record of current and prior offices.

“Moreover, by the time the advertisement was run, Horne had been clearly identified to the general populate as the Republican candidate for attorney general,” wrote appellate Judge Lawrence Winthrop for the court.

Nor did the judges believe the aim of the ad was solely to educate the public about Horne, noting he was no longer a legislator, and by the time the commercial ran he was a few months shy of leaving the post of schools chief.

“The only reasonable purpose for running such an advertisement immediately before the election was to advocate Horne’s defeat,” Winthrop wrote.

In his argument to the Supreme Court, Irvine said the appellate judges had no right to make such a judgment. He said they had to judge the commercial only by its actual words.

He said doing otherwise puts courts in a position of considering various factors and “guessing” at what was the real purpose of the commercial.

“Such analysis has been demonstrated to be unconstitutional,” he said, citing a U.S. Supreme Court ruling.

But Winthrop, in his ruling, said there was no guessing, citing factors like presenting Horne in an unfavorable light and the targeting, placement and timing of the ad, saying “reasonable minds could not differ” as to the intent of the ad.

In upholding the ability to look beyond the pure words of an ad to determine its intent, Winthrop said disclosure laws serve “substantial governmental interests,” including providing voters with information to aid them in evaluating the candidates and the sources of their support. He also said they deter actual corruption “by exposing large contributions and expenditures to public light.”

What the Supreme Court rules will affect far more than this 4-year-old case. There already are several cases from the current election in the pipeline, where those who paid for commercials claim they don’t have to identify where the money came from.

Whatever the Arizona Supreme Court rules will serve as the baseline for campaign finance reform legislation in the next legislature. I have consistently argued in favor of following California’s model campaign finance law (which was recently strengthened by the California legislature). Campaign finance disclosure reforms: follow California’s model law:

The only partially successful law to deal with this onslaught of dark money was achieved by the California Fair Political Practices Commission. Arizona should look to California’s model law for guidance on enacting campaign finance disclosure reforms.

Two versions of the Political Reform Act are provided below. One
version is clean without highlights; the second version shows the new statutory and regulatory changes from 2011 and early 2012 in a shaded format. Also for your reference is a link to each of the legislative bills that amended this version of the Act. Please note that a word version can also be obtained by sending an email to advice@fppc.ca.gov.

Political Reform Act of 1974 – 2012 Version

Political Reform Act of 1974 – 2012 Shaded Version

(Please note: this is a large Adobe .pdf file – 587 kb – and may require substantial download time on lower speed connections.)

Appendices I-II Uncodified Sections of Proposition 34 and Summary of Opinions

Index

• AB 873 (Furutani), Chapter 551, Statutes of 2011
• AB 182 (Davis), Chapter 96, Statutes of 2011
• SB 801 (Kehoe), Chapter 252, Statutes of 2011
• SB 398 (Hernandez), Chapter 704, Statutes of 2011
• AB 1413 (Fong), Chapter 3, Statutes of 2012, Effective 2/10/12

The California Code of Regulations (“CCR”), is the official compilation and publication of the regulations adopted, amended or repealed by state agencies. FPPC Regulations are located at Title 2, Division 6, Sections 18109-18997, of the CCR.

• FPPC Regulations
• Newly Adopted, Amended or Repealed Regulations
• Proposed Regulations and Notices

We know how to do this, it is just a matter of having the will to do it.