Howard Fischer of Capitol Media Services explains why Arizona Attorney General Tom Horne is facing a civil enforcement action for allegedly breaking campaign finance laws.
Ted Simons: Coming up next on "Arizona Horizon," the state attorney general is accused of deliberately breaking campaign finance laws. We'll have the latest. Our vote 2012 coverage continues with a look at prop 119, which would allow Arizona to swap state trust land for other public land. And we'll meet an award-winning screen writer who talks about the power of words in film. Those stories next on "Arizona Horizon." Good evening and welcome to "Arizona Horizon." I'm Ted Simons. Arizona attorney general Tom Horne is facing a civil enforcement action for allegedly breaking campaign finance laws. The allegations follow an 11-month FBI investigation into what Maricopa County attorney Bill Montgomery describes as Horne's illegal relationship with an independent expenditure committee. Covering the story is Howard Fischer of Capitol Media Services. It's good to have you here, Howie. Let's start with the beginning. What is a civil enforcement action?
Howard Fischer: Well, it's something less than a civil lawsuit. It's a ‘verbiology' only a bureaucrat could love. In essence it's the same as a hearing a real estate department with a realtor who might have violated a law. You go before an administrative law judge and each side presents their evidence. And it's handled like a civil case, preponderance of the evidence more or likely than the less. Sort of like a 51 49 margin. The administrative law judge makes a decision, odds are whoever loses then goes to superior court, and now we're into a full-blown civil lawsuit.
Ted Simons: What are the accusations here?
Howard Fischer: In essence it comes down to the question of was there coordination between Tom Horne or Tom Horne's campaign committee, and an independent expenditure committee set up by Kathleen Winn for the general election? State law is pretty clear, you can have independent committees. The advantage of an independent committee is you're not limited to $840 on individual donations. But the law is also clear, it has to be independent. That means no coordination with the candidate, no coordinating the message, no helping each side raise money. The allegation is there was communication between Tom Horne and Kathleen Winn, who was running the independent committee, about raising money and about some of the message.
Ted Simons: Independent money is supposed to be independent of the campaign. Got that. OK. 500 some-odd thousand dollars raced. The allegations are this money was raised late in the campaign when the Horne campaign was hurting for money.
Howard Fischer: Correct. But that does not mean anything. Kathleen said in affidavits and testimony that we can find, stuff that was presented to the grand jury, said, I decided who to contact, I made the contacts. One of those contacts happened to be with Tom Horne's brother-in-law, actually with his sister and brother-in-law who live in California, who Kathleen says I met at an earlier party after the primary, and the way Tom describes it, the way Kathleen describes it, the sister said what can I do to help my baby brother? That help turned out to be a $115,000 check.
Ted Simons: Which in and of itself is not violating campaign finance laws, but if you have an email in which the candidate says I need X amount of dollars and that X amount of dollars comes from that particular independent expenditure committee, then you got a problem.
Howard Fischer: Yes. But again, A plus B doesn't equal C. That's the burden -- the burden is still on the county attorney to prove that not only was there coordination, but that there was knowing coordination. I got to admit that the one email about raising $100,000 suggests something. But this was an 11-month investigation, information went to a grand jury, and after all that, what are we stuck with? We're stuck with, well, we have some evidence here and we have a couple of emails, and therefore we want to go after Tom Horne, not criminally, because --
Ted Simons: Why not criminally?
Howard Fischer: Well, the official reason or the unofficial reason? The official reason is technically speaking, campaign finance violations are all handled under title 16, the election law. And the election law says you have violations, you can be fined for three times the offending amount, and there is no specific criminal sanctions. Now, could you also if you had enough evidence charge conspiracy, fraud, something you could probably stretch the law, and Bill Montgomery, the county attorney, said he wasn't going to do it. Unofficially I don't think they have enough. The criminal standard is beyond a reasonable doubt. I don't know that you'd ever get a jury to say beyond a reasonable doubt there was coordination between Tom Horne and Kathleen Winn over this specific committee.
Ted Simons: With that in mind, you mentioned three times the amount as far as a fine is concerned? What's he looking at, a million, million five? Or is he looking at it or can he raise it by way of a committee and a campaign?
Howard Fischer: Well now, it got a little muddy in Andy Thomas's press conference to the point where he sent out a clarification. This involves $513,000 spent on a TV ad attacking Felicia Rotellini, his Democratic foe. Theoretically the campaign committee, if it's money illegally gathered, the remedy is you give it back and that's the end of it. If it's money illegally spent, the penalty is three times the amount. The money clearly was spent. Who's liable? Is it Horne? Could he raise it if he wanted to? Probably. Campaign finance laws are such in this state you can spend it for any legitimate purpose. If Tom Horne somehow would've been found ultimately accountable, I don't know if guilty is the word in a civil case. Could he try to get some money? Sure. Could it come out of his pocket? Possibly.
Ted Simons: OK. What kind of response are we getting from Tom Horne?
Howard Fischer: Both from Tom Horne and Kathleen say there was no coordination. The argument over this particular piece of email was that it was something perhaps quote unquote inadvertently said that the issue of the notes that were written on somebody's email were that I was on the phone with Horne, well, she wasn't on the phone with Horne at that specific moment. Again, we're depending on a paper trail. There are no audio recordings, nobody did a phone tap to the extent we can determine. This isn't like where there's a hidden camera and bags of money passing hands.
Ted Simons: There are phone records though, aren't there? But not the actual audio.
Howard Fischer: Yes, the phone records show people call. Well look, the fact is, is it a crime or even a violation of election law for Tom Horne to call Kathleen Winn? No. They could have been talking about the weather. That becomes the problem in terms of proving the intent.
Ted Simons: Response from others regarding this situation. We'll start with Republicans. Anyone calling for Horne to step down?
Howard Fischer: No. No. There is -- the question is, is there anything there? Obviously the Republicans have been pretty quiet since you have a Republican county attorney who has brought these charges. To be fair to Bill Montgomery, he has said very clearly, I'm not running for attorney's job in 2014. If somehow he were to be forced out I don't want his job now, so this isn't about my own ego. The Democrats, predictably, the Democratic party, Frank Camacho, you know, oh, my god, there's horrible things, now they're trying to tie to it Vernon Parker, because he worked for Lincoln Strategies which is the consulting group that Kathleen hired. The Dems are trying to have a field day.
Ted Simons: And Felicia Rotellini had a response as well.
Howard Fischer: She had a response. It was very muted response. She could have said the election was stolen. Remember, this was the closest statewide race. Most other Republican candidates in this state won by double digits. This was about a three to four-point difference.
Ted Simons: Last question, what's next here? What are we looking at here?
Howard Fischer: Well, 20 days that Tom Horne and Kathleen have to respond. I think we know what the response will be. At that point well we'll have a hearing, presumably public. We'll all go to the hearing, we'll hear days of testimony, probably nothing we didn't know since I just had 290 pages of stuff dumped on me including everything you want to know how Tom Horne backed into a white Range Rover.
Ted Simons: Yes, and that's a story for another day.
Howard Fischer: And that's it. That's -- like I say, very curious situation.
Ted Simons: Curiouser and curiouser. Howie, good to see you. Thanks for joining us.
Howard Fischer:Capitol Media Services;
