Originally Published: July 14, 2018 5:52 a.m.
PHOENIX — A judge will decide whether lawmakers have an absolute right to ask voters to approve two changes in law in a single act, even if they may only want one of them and not the other.
The proposal at issue asks voters to amend the Citizens Clean Elections Act to keep publicly financed candidates from using any of their funds to buy services from political parties and political consultants. Danny Adelman, attorney for the commission that administers the law, acknowledged that could prove popular.
But at a hearing Thursday, Adelman pointed out to Maricopa County Superior Court Judge Teresa Sanders that the measure put on the ballot by the Republican-controlled Legislature also seeks to give the Governor’s Regulatory Review Council, a panel of political appointees, the power to veto all proposed commission rules. That covers everything from their power to force public disclosure of campaign spending to mandates for publicly funded candidates to submit to at least one debate.
That, he said, is likely to prove a much harder sell to voters who in 1998 created the commission and the voluntary system of public financing of elections.
Adelman told Sanders that joining the two issues was not just happenstance. He said it was a ploy by lawmakers “in the hope that voters are forced to take this all-or-nothing position that it will somehow pass.’’
He said the Arizona Constitution requires that acts of the Legislature “shall embrace but one subject and matters properly connected therewith.’ And Adelman warned the judge that if lawmakers get away with linking these two issues it would open the door for other sorts of legislative shenanigans in future ballot referrals.
“They could pass something that joins together highway funding with a ban on abortion, or with something completely different like abolition of the death penalty,’’ Adelman said.
He said that’s why there are constitutional provisions to prevent this kind of “logrolling,’’ combining what he said are unrelated popular and less-than-popular provisions into a single measure.
But Assistant Attorney General Rusty Crandell told Sanders that constitutional provision applies only to “acts of the Legislature.’’ He said the vote by lawmakers to send the issue to voters does not fit that definition.
Anyway, Crandell argued, if there is a violation of constitutional single-subject provisions, that can be litigated only after the measure becomes law — assuming it remains on the ballot and assuming voters approve.
Mike Liburdi, a private attorney hired by Republican legislative leaders, went a step farther. He said there is no violation, saying there need be only a “natural connection’’ among various ballot provisions.
Hanging in the balance is whether voters get the last word.
The law allows but does not require candidates for statewide and legislative office to get public funds for their campaigns if they do not take other special interest dollars.
It has never been popular with business interests — the groups that have traditionally funded campaigns — who mounted several legal challenges, some of which went all the way to the U.S. Supreme Court. And while the justices there voided one provision, the system remains in place.
What caused at least part of the uproar this year has been the fact that the commission contends it has the right to require public disclosure of outside spending on campaigns, even for candidates who do not take public dollars. That comes even as lawmakers are amending other state statutes to permit more anonymous “dark money’’ campaigns.
But the Arizona Constitution limits the ability of lawmakers to tinker with laws approved by voters. That makes sending the issues to the ballot the only option for those who want to trim the commission’s powers.
Adelman told Sanders it is clear that lawmakers are free to ask one or both questions: limit use of public dollars and subject the commission to the the regulatory council. What they cannot do, he said, is put the issue on the ballot as a single take-it-or-leave-it proposal.
Liburdi, for his part, said the issue is not as black and white as Adelman suggests.
“Here’s what the courts look for: Is there a direct or indirect topical relation between these two provisions,’’ he said. “And there clearly is.”
Liburdi also pointed out that the entire Clean Elections Act was approved in a single ballot measure in 1998.
But the Arizona Supreme Court has ruled that measures crafted by voters themselves are not subject to the single-subject rule. Sanders is being asked to decide whether it applies to statutory changes that lawmakers are asking voters to approve.
Whatever she decides is unlikely to be the last word, as the losing side is virtually certain to seek Supreme Court review.