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Goldwater Institute, Secretary of State Challenge Clean Elections Commission Decision to Fine Legacy Foundation Action Fund

June 5, 2015

Phoenix—Today Michele Reagan, the Arizona Secretary of State, represented by the Goldwater Institute, joined a legal challenge to a sweeping power grab by Arizona’s Citizens Clean Election Commission.

The Clean Elections Commission was created to provide taxpayer funds to qualifying candidates running for public office. They were given the authority to set rules and regulations to determine how much public funding candidates would receive and what those funds could be spent on. But in a significant overreach of its authority, the Commission has declared it now has the authority to regulate and fine independent political groups.

In 2014, an independent group called Legacy Foundation Action Fund ran ads in several states, including Arizona, criticizing the work of the U.S. Conference of Mayors and its president, Mesa, Ariz. Mayor Scott Smith, who was also a candidate for governor. The Clean Elections Commission determined that this qualified as an “independent expenditure” against Smith and fined the group $95,000 for failing to disclose its spending to the state as a campaign expense.

The Secretary of State, who oversees the state’s election and campaign finance laws, determined that the ads were not independent expenditures and there should be no fine. An Administrative Law Judge agreed and reversed the fine. But the Clean Elections Commission has ignored the Secretary of State and the judge and is pressing ahead with its fine.

Today, the Goldwater Institute filed a legal brief on behalf of the Secretary of State weighing in on the matter, which is now before a Maricopa County Superior Court Judge.

“It’s no secret our office has been troubled by the Commission’s recent attempts to expand their regulatory authority,” said Secretary Reagan.  “While we enjoy an excellent working relationship with CCEC on a number of other projects, we disagree on this particular issue.  That’s why we sought to intervene in this case and asked the Goldwater Institute to represent our interests in a case that should clarify the role of the Secretary of State, the legislature and the Attorney General’s office in matters related to campaign finance.”

“This is a serious case of mission creep. The Citizens Clean Election Commission has absolutely no authority to regulate or fine independent political groups,” said Jim Manley, a senior attorney with the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation and one of the lawyers representing the Secretary of State. “The Clean Elections Commission is trying to enforce political speech regulations that directly contradict the rules the Legislature and Secretary of State have already set up.”

The Clean Elections Act passed by voters in 1998 gave the Commission the authority to provide taxpayer-funded political candidates with “matching funds” when an independent expenditure was made on behalf of their opponents. In 2011, the matching funds provision was struck down by the U.S. Supreme Court as unconstitutional in a case filed by the Goldwater Institute. With matching funds eliminated, any authority to examine independent expenditures and their costs was also eliminated.

The Clean Elections Commission never had authority to regulate or fine independent groups, it only had the ability to determine how much an independent expenditure was worth to opponents of a taxpayer-funded candidate and then provide matching funds in that amount.

“The Secretary of State clearly has the authority to regulate independent political groups and determine fines for violating those rules. We can’t allow unelected groups to go rogue and start regulating anything they want. The Clean Elections Commission’s role is very clearly defined—and for good reason it doesn’t include regulating independent political groups,” said Manley.




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