6/10/2010 4:17:00 PM Candidates seek alternatives to public funding
Capitol Media Services photo by Howard Fischer
Lisa Hauser, attorney for Gov. Jan Brewer, asks members of the Citizens Clean Elections Commission on Wednesday to let the governor solicit private donations now that the Supreme Court has blocked matching funds for her campaign. The commission refused, saying it isn't within their power to ignore the court order.
PHOENIX -- The Citizens Clean Elections Commission rejected a request Wednesday by Gov. Jan Brewer to let her start taking money from private sources since she won't be getting matching funds from the state.
Lisa Hauser, attorney for Brewer's campaign, urged commissions to invoke a provision of the law which lets publicly financed candidates seek outside funds if the state doesn't have the money.
Hauser acknowledged the commission does, in fact, have sufficient cash to give Brewer extra money to match the amount already spent by Buz Mills, who is running with his own money. But she argued that Tuesday's Supreme Court order blocking the state from providing that cash essentially means the money isn't there -- and entitles commissioners to declare an emergency permitting candidates to start tapping private donors.
Commissioners, however, agreed with the arguments of David Cantelme, attorney for Mills, that the high court order doesn't permit that.
Instead, the commissioners approved a motion urging lawmakers to come into a special session immediately to increase the amount of money given to all publicly funded candidates. That session would have to be called by Brewer, who would benefit from the move.
But gubernatorial press aide Paul Senseman said Brewer has no interest in calling a special session this summer on anything, including campaign finance. Senseman also said even if the governor were to call legislators to the Capitol, there is no guarantee the measure would pass, as the special legislation would require a three-fourths vote of both the House and Senate.
That leaves the commissioners with one other option. They directed Todd Lang, their executive director, to see if the original order by U.S. District Court Judge Roslyn Silver banning public funding has any wiggle room.
The Supreme Court on Tuesday, overruling a federal appellate court, ordered that ban remain in place until the justices have a chance to look at the issue closer.
Lang said that inquiry could take the form of a filing in U.S. District Court asking Silver to clarify her order.
That order, issued in January, concluded it is unconstitutional for the state to provide matching dollars to publicly financed candidates when their privately funded foes spend more. She said that chills the First Amendment rights of privately funded contenders to spend the money they want to get their message out, as every dollar they collect and spend means an extra dollar for their foes.
What's not clear, Lang said, is whether it also bars publicly funded candidates from being allowed to go out and raise the difference on their own, exactly what Hauser is seeking for Brewer.
The governor already has received $707,440 from the state for her campaign. And Dean Martin, also running for governor with public campaigns, will be in line for the same amount when he finally files his paperwork.
But the 1998 voter-approved law also entitles each of them to up to three times that original amount based on the fact Mills already has spent $2.3 million on his Republican primary bid. At least that was the case until Tuesday when the Supreme Court implemented Silver's order.
Cantelme mocked the governor for asking for permission to now tap private dollars.
"She can't have it both ways,' he said.
"If she wants to raise private money she should give the $707,000 back and start over,' Cantelme said, putting her on the same fundraising playing field as Mills.
Brewer campaign spokesman Doug Cole said that's not a realistic option. Leaving aside the fact the governor already has spent some of the money, a figure Cole puts at less than $100,000, he said there's no time to start from scratch, what with early voting for the primary starting July 29.
And Lang said that's not a legal option: Commission rules say once a candidate qualifies for public funding, he or she cannot pull out, even if the rules were changed because of the court action.
Cantelme said if that's unacceptable, then the only fair thing to do would be give everyone $707,440, including Mills.
Hauser, however, said doing nothing is unfair to Brewer. Hauser said there is no way the governor can adequately respond to what she characterized as increasingly negative "attack' ads by Mills.
"His opponents are not blessed with wealth,' she said, which is why they signed up for public financing, including the promise of matching funds that the court voided.
"They have essentially been disarmed and unable to respond in kind,' Hauser said.
Mills wasn't alone in opposing the governor's bid to go out and raise extra cash. Rhonda Barnes, attorney for the Arizona Democratic Party also urged them not to permit publicly funded candidates to now seek out private dollars.
Barnes pointed out that Silver had telegraphed more than a year ago she believed the matching funds provision was unconstitutional.
"The candidates took a risk coming into this (election) cycle,' Barnes said, knowing that matching funds might be declared illegal. "They cannot claim they're surprised.'
Martin said the commission made the right decision in refusing to let candidates -- including him -- now go after private dollars, calling the plea by Brewer ``an attempt by the governor to game the system.' Martin said he is not afraid of Mills having so much more than he does.
Commissioners indicated they were sympathetic to the plea but felt they are powerless to act because of the court order.
Louis Hoffman said the losers in the high court action are going to be Arizona voters who will not hear the message of all the candidates.