PHOENIX -- The Court of Appeals on Thursday opened the door for Republican legislative leaders to argue that candidates have a constitutional right to take more money from private donors than has been allowed.
In a formal opinion, the judges reaffirmed their earlier order keeping the current limits in place, at least for the time being. The court said there is evidence that legislation pushed through by Republican lawmakers earlier this year sharply increasing campaign donation limits violates a constitutional provision.
Thursday's opinion is not the last word, with the appellate court sending the case back to a trial judge.
Potentially more significant, the court directed Maricopa County Superior Court Judge Mark Brain to consider claims by lawyers for Republican legislative leaders that the old limits -- the ones the appellate court just restored -- are so low as to violate the First Amendment rights of candidates and donors.
That, however, raises the possibility that the old limits could be declared unconstitutional. And if the new limits were improperly enacted, there might be absolutely no cap on how much individuals and political action committees could give or the candidates they support could accept, as a court could not simply impose a number it finds acceptable
At that point it would be up to the Legislature to find a constitutional way of setting legally acceptable limits -- assuming lawmakers were interested in doing that.
That isn't legally necessary: Arizona had no limits prior to when voters first put some place in 1986. And a court could not order the Legislature to impose new limits.
And that would leave public demand for some sort of limit on campaign funds as the only pressure to act.
For the moment, though, the old limits are in effect for the 2014 campaign. And Mike Liburdi, the attorney for GOP leaders, still hopes to get the Arizona Supreme Court to overrule the appellate judges and allow candidates to start taking more dollars in time to get elected next year.
The fight surrounds a vote by lawmakers to let candidates take up to $4,000 from any one individual or political action committee. The old limit was $440 for legislative races and $912 for statewide campaigns.
Lawmakers also voted to repeal a cap of $14,688 on how much candidates can take from all PACs for any election, as well as a $6,390 lid on the amount any one individual or PAC can give to all candidates in any year.
But the appellate court agreed with the Citizens Clean Elections Commission that voter approval in 1998 of an optional system of public financing not only cemented in place the limits on private donations that existed at that time but even required those figures be reduced by 20 percent. The only permissible adjustments, the judges said, were for inflation.
Lawmakers cannot alter voter-approved measures without a three-fourths vote of the Legislature, something this legislation did not get.
Liburdi disagrees with the court's ruling and is weighing Supreme Court review. But beyond that, he argues that lawmakers had to increase the contribution limits because the old ones would not pass constitutional muster.
Norris did not dismiss that possibility. But she said that Brain, as trial judge, must "factually assess and measure' the limits against the constitutional standards the U.S. Supreme Court has set in determining if any particular limit violates the First Amendment rights of candidates and donors.
That presents a whole host of questions.
Liburdi cites a 2006 U.S. Supreme Court ruling voiding Vermont's $200 donation limit by individual donors as violating free-speech rights because it did not give candidates enough money to wage an effective campaign. Arizona's own limits on statewide races, then $760, was referenced in that ruling as one of the seven lowest in the country.
But Norris pointed out Thursday the Supreme Court has never actually set a dollar minimum on contribution limits. Instead, she said the high court has said limits are "constitutionally suspect if they prevent candidates and political committees from obtaining the resources necessary for effective advocacy.'
In essence, Norris said, the question is whether a candidate can get his or her message out. It is that question, she said, that Brain needs to answer.
Tom Collins, executive director of the Clean Elections Commission, said he thinks the existing contribution limits of $440 for legislative races and $912 for statewide campaigns meet all the constitutional tests, including being adjusted for inflation and leaving the door open for political parties to help their candidates.
Collins said, though, there's another factor the Supreme Court said can be taken into account: whether a state has a history of corruption.
In Thursday's ruling, Norris sketched out some of what led up to the 1998 voter-approved law, saying there were "corruption scandals that had rocked Arizona politics.' That included the 1988 indictment of then Gov. Evan Mecham on charges of hiding a $350,000 campaign loan and, three years later, several legislators being caught up in "AzScam,' a sting operation where they accepted bribes in exchange for votes.
Posted: Monday, November 4, 2013
Article comment by:
Freedom of Speech/Association Shall Not....
The individual citizens and associations of citizens have rights to free speech and free association....And can choose to promote and/or support candidates and/or issues in a manner they choose.
The sensible route for the courts to take is to take the position that all laws related to campaign activities and limitations are in fact an infringement of free speech and free association rights...and declare these laws as unconstitutional.
This would be a step forward to recognizing and honoring every individual voter's "Full Voting Rights"
Thanks and Good Luck,
Frank Henry "Full Voting Rights" Advocate e-mail: firstname.lastname@example.org