PHOENIX — A group that spent $260,000 attacking a 2014 foe of Doug Ducey in his first gubernatorial race is trying — again — to escape paying a fine for violating state campaign-finance laws.
Attorneys for the Legacy Foundation Action Fund contend that the Citizens Clean Elections Commission lacked the power to impose a $96,000 fine for the commercials targeting former Mesa Mayor Scott Smith. They say there was no proof that the ad was done to advance the political fortunes of anyone else in the Republican gubernatorial primary.
Beyond that, the lawyers contend that the commission lacks the authority to enforce campaign-finance laws.
So far that argument has not held water. Maricopa County Superior Court Judge Christopher Whitten ruled in August that the lawyers for the fund were misreading the law.
Now the fund is seeking intervention by the state Court of Appeals.
This is the second time Legacy has challenged the ability of the commission to police campaign funding. An earlier claim was thrown out by the Arizona Supreme Court after the justices ruled Legacy waited too long to appeal the fine.
But in that ruling, Justice Clint Bolick said the group was free to pursue other unspecified legal challenges. That has led to the current litigation.
The case stems from a commercial that ran in early 2014 when Smith was pursuing the Republican gubernatorial nomination.
Produced by Legacy, the ad noted that Smith, who was mayor of Mesa, also was president of the U.S. Conference of Mayors. The ad focused on some of the stands the conference had taken.
“They fully endorsed Obamacare from the start,” the commercial said. And it said the conference supported the Obama administration’s efforts to regulate carbon emissions and “backed the president’s proposal to limit our Second Amendment rights.” On the screen were photos of Smith placed next to pictures of a smiling Obama.
Jason Torchinsky, one of the attorneys for Legacy, argued there was nothing improper about the commercial.
It was not designed to influence the election but simply to educate Arizonans about Smith, he said.
Torchinsky noted that the ad made no reference to Smith’s race against Ducey nor even to Smith’s status as a candidate.
The Clean Elections Commission, however, concluded otherwise, ruling that its true purpose was to affect the GOP gubernatorial primary.
And what that meant, the commission concluded, was that Legacy, by virtue of attempting to influence an election, was required to publicly disclose the spending, which it did not.
That failure led to the $96,000 penalty — a fine the commission is still trying to collect.
Now attorneys for Legacy are raising new arguments about why it was never required to disclose the spending and, by extension, why it doesn’t have to pay the fine.
Whitten, in the ruling now being appealed, did acknowledge that the commission never identified on whose behalf Legacy was spending the money. But he said there’s no such requirement in the law.
The trial judge also rebuffed Bergin’s contention that only the secretary of state has the power to enforce campaign laws and not the commission, which was created by voters in 1998.
