PHOENIX — Arizona’s two top Republican lawmakers asked a judge Wednesday to block implementation of a 2022 voter-approved law designed to guarantee that people know who is trying to influence elections through spending.
House Speaker Ben Toma and Senate President Warren Petersen’s attorney, Brett Johnson, argued that Proposition 211 is an infringement on the Legislature’s constitutional powers. Johnson said that’s because it allows the Citizens Clean Elections Commission, charged with enforcing the new “dark money’’ law, to make any rules it wants, not subject to legislative approval.
“It is so broad that it is injurious to the legislative body, which in this case is the Legislature,’’ he told Maricopa County Superior Court Judge Timothy Ryan. He said the whole voter-approved law collapses if the judge determines the rule-making authority is unconstitutional.
But Assistant Attorney General Nathan Arrowsmith said the arguments by the two GOP lawmakers miss a critical point: The Arizona Constitution gives the people the power to make their own laws. He told the judge that allows the voters, as the ultimate lawmakers, to take powers away from the elected Legislature.
“The people may exercise the same legislative power that the Legislature can,’’ Arrowsmith said.
He said that includes the right to give powers to the commission to make rules ensuring that special interests cannot hide from the public the money they are spending to get certain people elected or certain ballot measures approved or rejected.
“Essentially, it’s a case where they’re saying they don’t like what the voters have done,’’ Arrowsmith said of the legislative leaders.
“And they don’t like that they can’t change it,’’ he added. That’s because a provision of the Arizona Constitution — enacted in 1998 by voters — specifically bars lawmakers from repealing anything approved at the ballot box.
The Republican leaders are asking Ryan to do in court what they can’t do themselves, Arrowsmith said — to overturn Proposition 211 because of some perceived injury to the legislative process.
“But the Legislature isn’t injured simply because they don’t like how the voters have exercised legislative power,’’ he said.
“Irreparable injury” to voters
Approved by voters in November by a nearly 3-1 margin, the initiative says that any organization that spends more than $50,000 on a statewide race — or half that for other contests — must publicly disclose anyone who has given at least $5,000.
The measure, crafted in part by former state Attorney General Terry Goddard, says those recipient groups must trace the money back to the original source.
Arizona always has had requirements for disclosure of political spending. In fact, Arizona’s first constitution required lawmakers to approve election disclosure laws to publicize “all campaign contributions to, and expenditures of campaign committees and candidates for public office.’’
But an attorney representing backers of the 2022 initiative said that requirement was undermined by a 2010 decision by the U.S. Supreme Court in the Citizens United case. That ruling enabled corporations and other outside groups to spend unlimited funds to influence elections.
“Big spenders have found it much easier to pass millions of dollars through various kinds of intermediaries before it’s spent on election ads,’’ the initiative backers’ attorney, David Kolker, told Ryan. “And so disclosure of donors can become almost meaningless if all it reveals is the name of a front group, like ‘Americans for a Brighter Future’ instead of the true, original sources of funding.’’
Proposition 211 won with the approval of 72% of voters.
“It doesn’t matter,’’ Johnson, the legislative leaders’ attorney, said of the margin. “An unconstitutional law is unconstitutional.’’
But James Smith, representing the Citizens Clean Elections Commission, said even if some of the rules might overstep the commission’s powers — a point he does not concede — that would be no reason to void the entire voter-approved law.
He also said any injury to the Legislature by the commission exercising power over campaign finance requirements is not only speculative but pales in comparison to the effect on voters.
That is a significant issue as any judge, when considering whether to bar enforcement of a law, has to consider the “balance of hardships,’’ specifically who would be more injured if the law is enforced versus whether it is blocked.
“We also need to consider the hardship to 1.7 million voters who voted for Prop. 211 and realize an injunction means at least one more election cycle without disclosure,’’ Smith said, saying such a move would result in “irreparable injury’’ to the state and its voters.
He said the judge must consider, before staying enforcement of what is a presumably valid law, whether such a move is in the “public interest.’’
History of trying to undo voters’ acts
This isn’t the first foray by the Republican-controlled Legislature into trying to void what voters approved. In fact, it nearly mirrors what happened in 2000 when voters stripped lawmakers of their power to draw legislative and congressional districts — districts they often drew to protect their partisan majorities — and gave it to the Independent Redistricting Commission.
Legislative leaders challenged it as an illegal intrusion into their own powers.
That case went all the way to the U.S. Supreme Court. The justices rebuffed the lawmakers, saying it was clear that Arizona voters had the authority to create a commission, independent of the Legislature, to draw district lines.
“The people themselves are the originating source of all the powers of government,’’ the justices ruled.
Lawmakers also challenged the decision by Arizona voters to create the Citizens Clean Elections Commission itself in 1998, a system that both limited campaign donations and provided public funding to candidates who did not take special interest money.
The Legislature lost that argument. But a separate lawsuit that went to the Supreme Court — this one not by lawmakers — voided a provision of the law that had provided matching funds to publicly funded candidates when funding of candidates with private donations exceeded certain limits.
More recently, Republican lawmakers challenged Proposition 208, approved by voters in 2020.
That measure, approved by a 51.7% margin, was designed to impose an income tax surcharge on “high-income’’ taxpayers to raise $940 million a year to increase state aid to public schools. The levy never took effect after the GOP leaders got courts to rule it cannot be collected because it bumped up against a constitutional limit on education spending.
Another case involves the 2006 voter approval of a new tax on tobacco products, with the money put into a fund, administered by a new agency, to support early childhood development and health programs. But lawmakers, in balancing the 2009 fiscal year budget, ordered $7 million in interest income — money that would have gone to programs — to be transferred into the state’s general fund.
That forced backers of the measure to file suit. The Arizona Supreme Court ultimately ruled that move by the Legislature ignored what voters legally approved.
What’s next
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Ryan said he plans to issue a ruling by the end of the year on whether Proposition 211 can take effect and the true sources of campaign funds disclosed. But he also agreed to stay whatever he rules for another two weeks to give whichever side loses a chance to seek appellate intervention.
