Journalists’ Roundtable

Dec. 12, 2014

Transcript:

Ted Simons: Coming up next on "Arizona Horizon" "Journalists' Roundtable", the governor asks the U.S. Supreme Court to delay a ruling on drivers licenses for dreamers. And the state's new schools chief says her first priority in office will not be tackling common core. The "Journalists' Roundtable" is next on "Arizona Horizon."

Video: "Arizona Horizon" is made possible by contributions from the friends of eight. Members of your Arizona PBS station. Thank you.

Ted Simons: Good evening and welcome to "Horizon's Journalists' Roundtable". I'm Ted Simons. Joining us tonight, Alia Rau of the "Arizona Republic." Jeremy Duda from the "Arizona Capitol Times." And Luige del Puerto also of the "Arizona Capitol Times." Governor Brewer's attorneys want the U.S. Supreme Court to get involved in the state's attempts to ban drivers licenses to dreamers. Specifically, justice Kennedy, they want him to stay this. What's going on here?

Alia Rau: Basically the 9th circuit declined to have an En banc hearing of the case. They lost their case originally. Appealed to the 9th circuit again. Circuit said there is not a single judge here that wants to hear the case. We stand by, we believe that you are doing is unconstitutional. Brewer then asked Kennedy for an emergency stay to halt the driver's licenses from going into effect for the DACA recipients.

Ted Simons: This case involves the state basically saying no licenses to folks who are unauthorized, if you will.

Jeremy Duda: Yes, about 25,000 people or so who granted temporary legal status by Obama's order in 2012, and, you know, the state's argument, a lot of it is irreparable harm and how difficult this will be. If you start giving away these driver's licenses, and the Supreme Court later overturns the ruling, it is hard to unring that bell is the governor's office argument. This originally started with DACA, a relatively small program. Supreme Court says the state has to give them licenses, what about the potentially hundreds of thousands of folks in Arizona granted temporary legal status under the more recent executive action from the Obama administration a few weeks ago.
Luige del Puerto: Yea, Jeremy's right. The original executive order only dealt with the dreamers. But, before then the state was already issuing driver licenses to DACA recipients, deferred action program, where immigration agents have what you call prosecutorial discretion whether to deport somebody or not, or to halt that deportation and once you are granted a DACA, deferred action program, before this executive order, you could get a driver's license and what the Obama administration did was extend it specifically to the dreamers and that started this controversy and this case.

Ted Simons: And the courts basically said you can't target dreamers without the other folks and the state said all right we will target the other folks, too.

Alia Rau: Nobody gets a license. Where they wanted to go.

Ted Simons: Governor elect Ducey, what is his position on all of this?
Alia Rau: He said he supports governor Brewer's position on it, herexecutive order on it, but whatever the court does, he will go along with it. He will not oppose the courts on it.

Ted Simons: He will not get in front of that particular parade.

Jeremy Duda: Not right now anyway. A number of lawsuits Doug Ducey is inherited from Jan Brewer. For most of them he is reticent to say what he is going to do with them. We are going to defer to Jan Brewer. She is the governor right now. We are examining all these things. Wait until January 5th when he takes office. This one he somewhat signaled what he would do by saying he could keep governor Brewer's driver's license ban in place. The only way to do this is to continue to fight the court case.
Ted Simons: Interesting
Luige del Puerto: And of course. By saying he is going to defer to whatever court opinion is going to be. It is a very safe and convenient answer. What else could he do if the United States supreme court said no, you have to stop what you're doing. You have to listen to their court of appeals --

Ted Simons: And this means licenses, if everything stays as is, licenses could be issued --

Alia Rau: We're hearing as of Tuesday, I think.

Ted Simons: As of Tuesday.

Alia Rau: It depends on Kennedy and how quickly he moves. It could be early next week.

Ted Simons: Any indication of how quickly the court moves on something like that?

Jeremy Duda: It's Supreme court, they can do whatever they want to do. If they don't move quickly, you know, the lower courts might say, okay, this order is final. Start giving out the licenses.

Ted Simons: You talk about unrigging the bell, once a driver's license is issued, bell rung.

Luige del Puerto: Based on recent history, some of the more controversial cases U.S. supreme court, court of appeal, an ask for a stay by the U.S. supreme court, has been pretty quick, a matter of days.

Ted Simons: We should also say real quickly that the state is arguing that informal federal policy can't trump state law, along with the fact that it would be a real problem if we wind up winning, state winds up winning later on and for the courts to redo everything. Saying it shouldn't get this far anyway because it is policy as opposed to our, Arizona's law.

Jeremy Duda: That's right. Unlike a lot of Arizona's other recent forays into legal immigration policy this isn't a preemption case stuff like SB1070 that's straight federal preemption. Federal law preempts state law. This isn't federal law, policy, prosecutorial discretion, as you mentioned Luige. This is a 14th amendment, this is Equal protection. As you mentioned courts of saying if you give these deferred action recipients licenses you can't deny it to these ones. That is one thing that the governor's office does have this is not federal law, simply an informal policy.

Alia Rau: Driver's license have historically been under the purvey of the states have different rules, different laws when it comes to licenses. And that's been accepted by the Federal Government.

Ted Simons: All right. We will see what happens with that, especially as far as the state is concerned. Again by Tuesday, we could see driver's licenses issued. The state is also seeking a stay in campaign finance in this particular ruling. Give us a background on this. What's happening?

Luige del Puerto: This is a very interesting case. One of those, you know, a small thing that could grow pretty big. And in this case, there was a lady out of fountain hills. She was upset and did not like a local bond measure and started to gather her friends and started putting up signs that they made themselves. Well, the city then told them you had to register as a political committee. Their reaction was that's pretty onerous we are not spending a whole lot of money and decided to sue. And now a federal district court judge ruled that our definition of a political committee is overly broad, and it covers too much, too many things, and, therefore, it is unconstitutional. Mind you, that definition is about 183 words or the period is at the very end of that a little bit complex.

Ted Simons: Yeah.

Jeremy Duda: Federal judge said unconstitutionally vague and overbroad. 183 words of run-on sentences covers the vague part. You know, the most important part of this isn't just that he struck down the definition of political committee. It is that almost the entire rest of our campaign finance regulatory scheme is based on that definition. So, registration requirements for PACs, for independent expenditures for candidate committees. You can't enforce those anymore right now. Disclosure requirements Campaign finance reports all of those contingent on that one definition. Right now you legally cannot enforce any of those.

Ted Simons: Some are saying that the judge's ruling basically means open field.

Alia Rau: It throws the state's election system into chaos. Everything is unknown. Everything is sort of up for grabs. Under this, yeah, the secretary of state's office can't require you to submit your campaign finance reports. They can't go after somebody who has been accused of violating, you know, some of these dark money groups that are being accused of violating regulations, they can't go after them.

Ted Simons: This because of this definition of a political committee being too vague. Can't the state go back and put a couple of more periods and semicolons.

Luige del Puerto: The state certainly could you need the state legislature to go ahead and do that. We wait until the legislature actually acts and perhaps redefines what a political committee is or they do a special session, which is very unlikely. It is the holidays are coming and they're busy with whatever they are doing. But, know, Alia is right. It is confusing right now. What we have before this ruling, a system that says essentially that if I, as a resident, and a citizen, if I were to spend my own money, put up my own yard signs for or against a candidate or a ballot measure, I don't have to register as a political committee. There is no it is just me exercising my first amendment rights. However, if I corralled Jeremy, doing the same thing, we have to register as a political committee. That essentially is how this system works. And so regardless of how small the effort is or how big it is, if I started having my friends if we started coming together and spending for or against a ballot measure or a bond measure or a candidate, we have to register as a political committee.

Ted Simons: Basically one is a voice, two is a committee, is that what we're hearing?

Jeremy Duda: No one is a committee right now. Fortunately for the state for the election officials, I'm sure they're very happy about this. This is the last campaign finance report of the season was due the day before this ruling came out, and next one won't be due until the end of January, 2016. There is problems that could have caused that won't cause because of that. But cities, counties, all dependent on the same law. Phoenix, Tucson, they have elections next year. Candidates are filing. Getting ready to launch campaigns. Ballot measure committees with filing requirements and contribution disclosure requirements. Recall committees and as Luige mentioned, complaints. About 22 pending complaints with the secretary of state's office right now. They cannot enforce any of those right now. If the ruling stands, they will all get tossed. The ones that moved further on in the process, say this long running campaign finance saga with attorney general Tom Horne, if this ruling stands, that is probably out the window. He's off the hook. Same for the free enterprise club which is accused of being a dark money front group with a law enforcement investigation right now too, and that would be out the window as well.

Luige del Puerto: Jeremy is correct. State of confusion that we are in I don't reckon election lawyers advising excuse me clients, you know, started doing a lot of stuff that otherwise would be considered illegal. I think everybody is going to stand aside and see how this all shakes out and at the end of the day, I don't believe that we're not going to have something in place to either correct our definition or make sure that we have something that is actually working. At the end of the day, we have to enforce certain reporting requirements that we have been doing and I don't it's hard for me to foresee those requirements being just undone and not doing something about it.

Ted Simons: We talked to Tom Collins about this clean elections director. He basically said just make it clear. It deals with committees and not candidates and move on. Can it be that simple?

Alia Rau: Well, it is goes before the legislature nothing is ever that simple. It depends on what everybody wants to do and what it looks like. And you are looking at a republican-led legislature that wants as few regulations if possible, but, yeah, it seems like you have to have something.

Ted Simons: That is a good point. How far is the legislature going to go on something like this?

Jeremy Duda: Who knows? It depends on what they want to do. Simplest fix, adopt the federal definition or something similar too. Concise, many of the same elements, withstood judicial scrutiny. But the question, plenty of other folks have ideas about changes they would like to make to campaign finance. I talked to campaign finance attorneys who said we should use this as an opportunity to completely overhaul a lot of our election laws. If you do that, how long does it take? Can you get it in place immediately? If you can't, how long does it go? On the enforcement side, if they get this done quickly, immediately, all those old complaints still will have to go because they would have been filed under a defective law. A constitutionally defective law.

Luige del Puerto: I reckon the secretary of state will probably go for the simplest fix. Something they can use to enforce the election laws right away. Probably go for something simple. But as you know, politicians always have a tendency to be as they have the ability to surprise.

Ted Simons: Yes.

Luige del Puerto: Let's just say that. Let's see what happens next year.

Ted Simons: Let's see what is going to happen regarding education funding as we discuss this. Again legislature, back in the courts here. They want a stay as far as this ruling that $317 million must be paid this year. We want talk about the billion back pay were not even there yet. Where do we stand on this? Because the legislature needs to find this $317 extra million dollars?

Alia Rau: But, maybe not this year. And that's what they are asking for. It is kind of the legal minutia sort of where were at with this. Basically they filed a stay saying lets hold off on paying this while we can appeal they already said they are going to move ahead with an appeal. It is trying to keep everything on hold as long as they possibly can. Lawmakers have said we know we probably are going to have to pay something if we are still debating what, but let's try and delay it as long as we can especially when we are facing the budget shortfall we are.

Ted Simons: What happened with the negotiation with districts we heard a while back.

Jeremy Duda: I don't know. I haven't heard much about that lately. I think the negotiations between lawyers now. The Lawmakers are arguing that the courts do not have the power to retroactively to make them pay back this loan. Saying this ruling can be perspective going forward. We have to make inflationary increases. But all perspective not retroactively which would certainly get out of somewhat of a bind. It would help us out with about $317 million of the $520 million deficit we're facing for the current fiscal year. After that, all bets are off again.
Ted Simons: The courts are basically saying, legislature ignore the will of the voters

Luige del Puerto: Right. The Arizona supreme court ruled last year that the state ignored the will of the voters. Money had to be funded. State is now saying that opinion by the Arizona supreme court only applies to now moving forward and is not retroactive. Trial court judge does not have the authority to then reset what that inflation funding level is. That's one of the state's arguments. That is a very interesting and curious argument, if you will. If you logically break it down, it would mean that if the mandate for the state to pay for something that the voters have approved is violating that order would only then mean you pay for it moving forward and not have to remedy what's being withheld, from in this case the schools, what is to prevent the state legislature from doing it again? Let's wait for that lawsuit. In the three years that we litigate this, we'll just say at the end of it, we don't have to pay for it. You know, pick a program, voter-approved program and presumably you can do that.

Ted Simons: What's the point of having these things if the legislature can say no and then when they're told it's yes then the whole time they said no they're off the hook?

Alia Rau: That's the question. That is what we are waiting for the judge to decide.

Jeremy Duda: That would make it easier to deal with budget crises. That is part of the approach. A few years ago, do it now, we will figure out whether it is legal later. It is an emergency. Same reason why during the governor's race, you heard he a lot of Duval criticizing wants to appeal his case. Ducey trying to buy time, all trying to buy time because nobody knows where to turn with the budget deficit. No real obvious solutions here.

Luige del Puerto: They have a second main point, state has a second argument. That the that's basically that the power to appropriate solely belongs to the state legislature. Courts cannot mandate lawmakers how to appropriate funds. They can't say you have to prioritize in this case education. Make education the first thing you have to make whole and ignore or cut everything else. Of course, the lawyers for the school districts are saying, you know, that's the wrong way of looking at it. There is a law you violated and therefore, we're trying to seek a remedy for that.

Ted Simons: Again, it seems like it is common sense when you can't just say no, we're not going to pay it. And, by the way, that's okay.

Jeremy Duda: Government and politics, nothing is ever really common sense.

Ted Simons: We are talking about the budget battle. We talked a little this last week and nothing much has changed, I'm sure. What is the latest here? What are you hearing as far as solutions to this deficit and what could be just this major deficit in the next fiscal year?

Alia Rau: I think right now everybody is kind of waiting to see, number one, what governor Ducey wants to do and how he is going to work with the legislature. We sat down with Andy Biggs, the president recently, and he is excited in thinking that maybe the legislature and governor on January 16th can stand together and say here, look, we have our budget, we're ready to go. Which didn't happen under governor Brewer. That is probably wishful thinking. That is assuming everyone gets along and everyone agrees on everything. Everything is perfect and rosey. I don't know we will see that this session.

Ted Simons: If we do see that, what will we see?

Jeremy Duda: I haven't the faintest idea. Fiscal year 2016, projected billion dollar deficit. About a $9.2 billion budget. A little under $4 billion of that is K-12. Can't touch that. You have to increase that as per the court's order. Another billion or so is corrections. You can't cut that unless you are going to start cutting prisoners loose. $1.3 billion for Medicaid. Can't cut that. You have a few hundred million for the new department of child safety. Politically, you can't really touch that. You effectively have two-thirds of the budget for legal or political reasons untouchable. They cannot balance this with cuts alone. Even the staunchest fiscal conservatives over there will tell you it is impossible. No one is going to raise taxes. Doug Ducey said he is not going to raise taxes. Even if he wanted to, you would never get it through the legislature. A lot of the one-time gimmicks we used last time around, fund sweeps, mortgaging off state buildings securitizing lottery revenue a lot of those aren't available anymore. Some funds haven't been replenished. You can't sell the state capitol twice. Can't securitize lottery revenue twice.

Ted Simons: Sure you can. Sell it twice. A few years down the road the courts come after you, okay, fine.

Jeremy Duda: In the end, there is no obvious solution. I'm fascinated to see what they come up with.

Luige del Puerto: You mentioned cuts. That is perhaps the only one thing that our conservative lawmakers have agreed on that there need to be cuts. Level of the cuts, and the complications of doing those cuts are enormous. Other things they have in mind, for example, you mentioned some of the gimmicks. Some of the gimmicks are off limits. We can't do those again, Jeremy pointed out. Some we may be able to do again. Mind you, our lawmakers are very enterprising people. They might just surprise you.

Ted Simons: Are you talking rollovers, things like that?

Luige del Puerto: They can do rollovers again. Nothing stopped them from doing that before. They can do that's a that's a perfect example of an accounting gimmick, personally legal. There will be a lot of criticisms and what have you, but they have done it before. Andy Biggs, in that one of the articles that I read from the republic, basically said he wants to do structural changes. He wants to look at fundamentally how the state funds its operations and maybe find a way so that we don't have to deal with this problem on an ongoing basis. That's very ambitious. I wonder if he did say, didn't elaborate on it, but I wonder if his thinking about a structurally balanced budget, which is different from balancing the budget. If he is referring to a structurally balanced budget that is an enormous amount of pain we would have to go through to get there. Maybe he doesn't mind suffering too much.

Alia Rau: He has also talked about zero based budgeting, which, again, would be a huge change, basically starting over at the beginning with zero revenue, zero expenses at the beginning of every year.

Ted Simons: Every fiscal year.

Alia Rau: Tried it with a couple of small agencies. He has tried looking at it. Very small agencies they tried it with.

Ted Simons: Is that the kind of thing that could fly? Would people go for something like that?

Jeremy Duda: That is quite a Herculean effort. Last time we had a major crisis, people talked about massive structural changes, change the way we do budgeting. We didn't do any of that stuff. Raised taxes for three years and made a bunch of cuts and called it a day. Brewer had a lot of ambitious ideas about what she wanted to change. All sound good in the middle of an emergency. When you get down to the nuts and bolts to fix it, you have to do whatever you can to fix it.

Luige del Puerto: You have to remember they were in a panic mode. Every single year, they had to come up with something to fix a budget that was bleeding. And the revenues were drying up. And so, when you are in a panic mode, you can't really think thoroughly about what you're going to do. This time, however, we have Justin Olson thinking about maybe we can look at deficiencies, making government more efficient. He mentioned the biomedical center campus in Phoenix. Two years ago $8 million for about 30 more students. He broke it down and said that's roughly $230,000 per student. Now, why is it that high when the university of Arizona campus in Tucson, you know, per student funding for their center is much lower, and what can we do? We might see things like that. Even those would be very ambitious. Mind you, the $1.5 billion that we're facing, only facing it in fiscal '15 and '16. Were also facing another billion in the year after, and about $800 million the year after.

Ted Simons: That gets into corporate tax cuts. I know that those are supposed to be off limits. We will see how far off limits those are. A couple of minutes left here. Diane Douglas, I think, raised some eyebrows, her office raised some eyebrows this week by suggesting maybe we don't need to overall common core first day of business.

Alia Rau: Yeah, her staff said that she probably would not overhaul it the first day of business, which is interesting. Because she really can't overhaul it the first day of business. Basically you need the board of education, which, you know, entire process there. You need legislation, you need all kinds of different things. So, no matter what happens, Douglas could not come in day one and say, okay, bye-bye common core, we're done.

Ted Simons: Was this her understanding or is this her basically saying let's get the transition process, I think she or her office used the word process for the first year.

Jeremy Duda: I think it is an acknowledgement of reality. She can campaign against common core because she doesn't like it and a lot of people don't like it. She understands there is nothing she can do on her own. I think if no one else is going to make a move to do this all she can really do is use it as a bully pulpit to know effect if nobody else is going to take action. Chief administrator of a large school system, so much other work to do. You can shout into the wind all you want but it is not going to do much in the legislature, board of education, and governor Ducey is not going to go along with you.

Alia Rau: I think others will take action. I think we will see stuff at the legislature. What do you do with funding? Ways to get around and underneath and gut common core that can be done at the legislature and I think we will see some of that.

Luige del Puerto: I was going to say her job, primary job is to be an administrator. The first thing she will administrate is this common core test that will have a next year. We already paid for it the money is already there for it. At least one year. Whether they fund it again the next year, that's the big question as well. But it is her job to administer this test, and she has to show that she can administer. That is what we elected her for.
Ted Simons: Office is saying she is not so much against common core as supporting local control. So, again, we will see how this works itself out as the
Jeremy Duda: Certainly a softening of tone.
Ted Simons: Yes. Monday on "Arizona Horizon," the state could face a wet winter due to EL Nino weather patterns. And the growth of microbreweries is prompting calls for changes in state laws. That's Monday on the next "Arizona Horizon." That is it for now. I'm Ted Simons. Thank you so much for joining us. You have a great weekend.
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