The Arizona Court of Appeals recently put an injunction on higher campaign contribution limits approved by the legislature this year. The injunction comes as politicians are in the midst of fundraising for next year’s election. Sam Wercinski of the Arizona Advocacy Network and attorney Lee Miller will discuss the pros and cons of the higher limits.
Ted Simons: The Arizona Court of appeals recently put an injunction on higher campaign contribution limits. The court action comes as politicians are busy raising funds for next year's election. Joining us now are Sam Wercinski from the Arizona Advocacy Network, a voting rights group, and Lee Miller, an attorney who specializes in election laws. We invited you here and thank you for both being here to help us make sense of this. You are seeing things from different sides and we'll get to that aspect as well, but let's start about the appeals court ruling. Your thoughts?
Sam Wercinski: Well, the court did exactly what, what we had expected, and that is, ruled the law unconstitutional, violating the voters' will, the voters who passed the Clean Elections Act and the Voter Protection Act.
Ted Simons: Your thoughts on the ruling?
Lee Miller: Well, we don't have an opinion. From court yet so we're not precisely sure, their rational for, for the, for their ruling, but, frankly, we disagree with the ruling, and we think it's wrong, and we think undoubtedly that they have inferred a lot of, a lot of what the voters may or may not have intend back in 1998.
Ted Simons: And I want to get to what -- we had game theory, I think, was part of this process at one point, and we'll get to that in a second but first all, what about the higher limits that were in place, for a month or so?
Lee Miller: Yes.
Ted Simons: What happens to that money collected?
Lee Miller: Well, I think that we're going to have to wait until we get the end of the litigation line, the Arizona Supreme Court is certainly cognizant of the, of the need to get to a near term resolution, and I think that, that before any candidate really starts spending money, we will have a resolution, and part of that will be a direction from the court, what to do, if you have money higher than the court thinks appropriate.
Sam Wercinski: And yeah, I think what we're seeing for, for candidates, donors and voters, is exactly what we predicted while we were asking the legislature not to pass this, based on the constitutionality concerns, and what we're asking candidates to do right now is to voluntarily respect the limits that the voters put in place in 1998, return these excessive contributions, and if the Supreme Court makes a different ruling than the court of appeals, there is plenty time for them to raise more big money.
Ted Simons: But I guess the question would be, if I'm a candidate, and I am running for office, and I did have some folks go to the higher limits here, and I have got them now in the bank account for the campaign, do I, do I sit on them? Do I spend them? Will I eventually have to return that money? I mean, there are a lot of question marks there.
Sam Wercinski: There sure are, and this is the confusion that we predicted, but, they can't go wrong, the candidates can't go wrong by returning those contributions, and respecting the limits that the voters put in place in 1998.
Ted Simons: Would the advice be act as if the law never passed until, until we get through this court operation?
Lee Miller: No.
Ted Simons: No.
What we have told candidates is, don't spend a lot of money. Be prepared to, to refund it if you have to, but until we get to the final resolution, you have options available to you, and, and pursue those options you think are in your best interests.
Ted Simons: So if candidate Ted wants to spend that, go ahead, just be prepared that in a few months or so, we could find out that you got to return those checks.
Lee Miller: If you start spending money year in advance, there is a lot of risks that come with it.
Ted Simons: Ok. Let's go with the law. Does the law raise the limit linked to the clean elections law? Is there linkage?
Lee Miller: No.
Ted Simons: Why?
Lee Miller: The statute that, that articulates the limits for traditionally funded candidates is a completely separate statute outside the Clean Elections Act, itself, if the folks who draft it, and I know many of them, had wanted to create a hard linkage, those bright, talented folks certainly could have written the Clean Elections Act in a way to make that linkage unequivocal, and they did not. We don't believe the linkage exists.
Ted Simons: And why does the linkage exist?
Sam Wercinski: Well, I think this has all been argued in court and it's clear that you have a panel of three sharp appellate court judges, who see the linkage whether it's directly because of a violation of the Voter Protection Act, meaning, the, the Clean Elections Act, the contribution limits, were swept aside by a legislative act without a supermajority of 75%, and also because it did not further the intent of the voters that passed the Clean Elections Act.
Ted Simons: Why was there not in the law a hard, fast number, as opposed to this 20% thing? Why was there not a number with the bright minds as referred to earlier, wouldn't that have made things easier?
Sam Wercinski: Well, it may have, but we should also remember that 1986 the voters passed a citizens initiative, also called prop 200, that established the statute 16905, and put in place contribution limits. The legislature, during that time period, swept those limits aside, you know, definitive limits, so I think, perhaps, and this is subjective -- this is just, you know, maybe trying to think what the proponents of Clean Elections were thinking when they drafted it, but by simply referring to the limits that were established in 905 at that time, and then reducing them 20%, there is a clear, clear link to that. If there wasn't, the legislature could say, we're not going to have any limits whatsoever. They're infinite, and therefore, we'll reduce those 20%. What's a 20% reduction of infinite? It's still infinite.
Ted Simons: That does seem to be the alternative if you say there is nothing hard and fast, you could keep hiking things up and dropping it by 20%.
Lee Miller: Well as the drafters of the Clean Elections Act intended, they wanted there to be this matching funds remedy so to the extent that the legislature would have opened the door for higher contributions, for traditionally funded candidates, matching funds was intended to be the mechanism to provide the balance between the traditionally and the clean elections candidate.
Ted Simons: Are you saying that once matching funds went away, that the dynamic changed to the point that this became a new ball game?
Lee Miller: Absolutely. The folks who drafted the Clean Elections Act had a comprehensive plan they thought that they were putting in place. The Supreme Court took away one of the central pillars of the plan matching funds, and now we're trying to make sense of half a plan that's left behind.
Ted Simons: Changing landscape when matching funds went away to the point that this now changes as far as higher campaign limits?
Sam Wercinski: It certainly did, and, you know, Arizona Advocacy Network, the co-plaintiffs in this suit, we would all prefer to find solutions through legislation than litigate. And in 2012 and this year, there were bills introduced with bipartisan support with clean election candidates, privately funded candidates, new legislators, and veteran legislators. So there's an opportunity to revive House Bill 2575 and address the issues that we all mutually agree. There are issues here that we can advance the voter intent, for needing more contributions, higher contribution limits for private funded candidates, and we would prefer to do it through legislation than litigation.
Ted Simons: And as far as voter intent, how do we really understand what the voters wanted there? Especially with the Voter Protection Act, so close in the same ballpark, in the same arena, I mean, do you think that they really wanted 1998 levels in 2008, in 2018, in perpetuity?
Sam Wercinski: Well, the Clean Elections Act has been modified several times with the legislature, respecting the Voter Protection Act in, and the intent of the voters, and so, there is a mechanism to go ahead and make changes that furthers the, the intent of the act. And the act, also, in the declaration, Ted, clearly states what the intent of the voters is, and that is to fight political corruption and the large sums of money that special interests had been utilizing, and to increase civic participation. But it's primarily an anti-corruption law, that's very clearly stated in the act.
Ted Simons: And as far as the idea of things changing over the years, this may not be a 1998 level, as such, but enough change over the years to where a political candidate get out there, and get their message across, without the limits being so low that really don't have enough there to get to all the people you want to contact. Is that a factor?
Lee Miller: Absolutely. In 2010, there are 1.6 million people who voted for Governor, when you aggregate all those addresses, that's about 1.1 million households. If I'm going to send those households a single piece of mail, I'm going to have to spend $750,000 to $1 million. If I were a clean elections candidate, for Governor, I had pretty much blown my budget on single piece of mail. And that's the failure of the act. It does not allow enough communication between candidates and voters to effectively inform and educate voters who the right candidates are.
Ted Simons: Did it ever allow enough? Was it flawed the minute that it was enacted?
Lee Miller: The Clean Elections Act was enacted at the same time that we enacted proposition 105, I think in retrospect, if the drafters of the Clean Elections Act knew the limits that prop was going to create, they might have built some more flexibility into the act in the beginning.
Ted Simons: And we're looking at intent again back there trying to figure out what people want and when they wanted it.
Sam Wercinski: Sure. And you know, I think it's important to address what Lee said, as far as the capacity of candidates, whether they are running privately-funded or as clean election candidates, to reach the voters. We know that the Clean Elections Act provides for debates. Public debates. And you hold debates on this very channel. Individuals, voters interested in the candidates, have the ability other than just through a mail piece, to learn about the candidates. We have online websites today, and radio, television, debates, and if I was running for office in, and my campaign manager suggested a mail piece, that person would be fired.
Ted Simons: But, is there, regardless of the form, is there enough money for a candidate in this day and age, back up to 1998, were those funds inflation adjusted? We do have at least those increases?
Sam Wercinski: Yes. So, the Secretary of State is charged through the act to adjust the base amounts, both for clean elections, as well as privately funded candidates, every election cycle. That mechanism is in place to address inflationary measures. I think the base grants, depending on particular races, is still adequate for candidates to get their message out. Where it becomes a real difficulty is when they have to fight off negative attacks. That's where there is a lack of funding.
Ted Simons: That's part of the ball game. That's going to have to be involved.
Sam Wercinski: Not in every race, it is not.
Ted Simons: No, but, it is a potentiality.
Lee Miller: Right. The Clean Elections Act, and if we were to go forward under the current limits of about $450 per person, If I'm running for superintendent of public instruction, running for state treasurer and again, I'm going to send that single mail piece to the folks who are likely to vote in a statewide election, at a head, I'm going to have to round up about 3,000 contributors. I'm going to have to invest the time, the money, and the effort to round up about 3,000 individual contributors to get out one mail piece. If my average contribution picks up to say $1,000 per person, I have only got to round up 750 to 1,000. And so, do you want me to spend time with donors or do you want me to spend time with voters?
Ted Simons: Let me ask you this question, all things considered, should there be limits on campaign contributions?
Lee Miller: No.
Ted Simons: Absolutely none, so really what we're arguing here is a bit below the bar, as far as you're considered. You don't think that there should be limits at all.
Lee Miller: Folks complain about money and politics all the time, there are plenty of studies that prove up that the best funded candidate is not automatically the winner. We think that the most effective, of course, is no limits on contributions, but 24-hour reporting.
Ted Simons: And what do you make of that? Better report something forget the limits.
Sam Wercinski: Better reporting is, is essential, but, limits are very much necessary, particularly given the history of Arizona politicians and the corruption. And house bill 2575, Ted, I think it's important, suggested raising the contribution limits for privately funded candidates to $1,000. So, we had these things in mind, which again, brings us back to the point that we would much prefer to have advanced the Clean Elections Act and the concerns of our opponents through legislation rather than litigation.
Ted Simons: Final word?
Lee Miller: We don't need limits, we think eventually, the Supreme Court is going to rule limits are unconstitutional anyway, it just matter how long it takes us to get there.
Ted Simons: And gentlemen, we have got to stop it there. Good to have you both here, good discussion.
Sam Wercinski:Arizona Advocacy Network;Lee Miller:Election Law Attorney