No Look Pass

There is a disturbing trend creeping into Arizona politics; I call it the "No Look Pass."  In 1998 George Soros financed an initiative called the "Voter Protection Act" that prevented the Legislature from amending a law that was passed by initiative.  The Legislature can only "further the purpose" of an initiative and it can only do so by a three fourths vote in both chambers. 

But what happens if the voters pass something that is completely unworkable or has "unintended" consequences?  Generally these problems result because the initiative went too far so the legislature is powerless to fix the problem by scaling back the law. 

For example, I pointed out that the MARC Center for the Disabled will likely be shut down because the developmentally disabled workers don't make minimum wage.  The legislature is unable to fix this problem and most of the folks who supported the initiative didn't intend for hundreds of developmentally disabled workers to lose their jobs. 

So what's the solution?  The No Look Pass.  The agency that enforces the minimum wage law is planning to take a pass on it and the newspapers and law enforcement agencies are vowing not to look. 

Larry Etchechury, director of the state Industrial Commission, said Tuesday his agency will not bring charges against any of these organizations if they do not start paying the new $6.75-an-hour minimum wage on Jan. 1.

Etchechury said his organization, charged with enforcing the new voter-approved law, is still researching its provisions. In particular, he said the commission is trying to decide whether Proposition 202 includes an exemption for those who work in sheltered work environments.

It's clear that the law contains no such exemption.

The most egregious example of the No Look Pass is "Clean Elections."  The Clean Elections law is unworkable because the financing provisions and reporting requirements are so complex and badly written that everyone from the Governor on down violates them. 

The problem is that ARS 16-942 says that the fine for a violation "shall" be 10 times the amount of the violation.  If the law were enforced as written, the fines candidates paid would rapidly exceed the amount they received from Clean Elections.  Candidates would be getting kicked off of the ballot left and right. 

So what's the solution?  The Legislature can't reduce the fines because that wouldn't further the purpose of the initiative.  The only legitimate solution is to go back to the voters and have them change the law.  But the political community has solved the problem with the No Look Pass.  The Citizens Clean Election Commission has adopted rules that limit the amount of the fine to $10,000 and the CCEC often settles cases by imposing fines well below their own $10,000 limit.  It's common to see a CCEC order that says a candidate committed a spending violation of, say, $3,000, and the fine is $1,000.  Since it is widely acknowledged that the system is unworkable, other agencies, the self styled public finance activists and the newspapers chose not to look at this clear violation.

So what's wrong with the No Look Pass?  The problem is that if you aren't a sympathetic character, the enforcement agency will decide not to pass and the newspapers will decide to look.  The poster boy for the problem with the No Look Pass is David Burnell Smith. 

Smith violated Clean Elections law and the agency decided to actually follow the law.  It's pretty hard to read a clear statute and say that the agency is wrong to enforce it.  The courts will certainly provide no relief and the newspapers will point out that the agency has "no choice."

But this is supposed to be a nation of laws not men.  It's supposed to be a nation where you ensure your rights by hiring a lawyer not a PR firm. 

When the MARC Center discontinues its programs for the disabled and the Industrial Commission takes it upon itself to fix this injustice by taking a pass on enforcement, it's your responsibility to look.  It's your responsibility to tell the policy makers that if they don't like the law, they should change it.  The minimum wage law is broken and it can only be fixed at the ballot.  Clean Elections is broken and it can only be fixed at the ballot. 

When those who are responsible for enforcing our laws take it upon themselves to fix them we all lose by looking the other way.  After all, the time that they decide not to pass may be the time that the law applies to you. 

Post Script

When I served in the Legislature, one of the interns drafted an amendment and was disappointed when one of the staff attorneys told her she couldn't use it.  She asked why and he told her that the amendment conflicted with the Constitution.  She came back in a few minutes and proudly displayed her new language.  The amendment was the same, but the first line now read "Notwithstanding the Constitution."

That's a funny story until you realize that the CCEC has adopted a rule that is in direct conflict with a clear statue.  I hope they were at least smart enough not to write "Notwithstanding ARS 16-942..."

Comments

[AZBluedog]

David Burnell Smith, an attorney, is not a sympathetic figure. He signed a contract to obey the law (Clean Elections) and he broke that law or what ever you want to call the “rules”. If an attorney can’t follow the rules or law, I have no sympathy for him. He did not hire a PR firm he hired an accountant and twisted the numbers. First he was guilt of infraction then he was not. Clean Elections may not be perfect, but David Burnell Smith should not be the poster child for reform. I think Clean Elections is good for making the two party system stronger in AZ.

[Tim]

It is worth remembering that David Smith brought the potential violation to Clean Elections and the Exec. Director of Clean Elections determined that there was no deliberate infraction. She recommended and Smith agreed to pay a $2,500 fine.

It wasn't until the hard left made a fuss that the Commission actually rejected its own settlement offer and decided to see about kicking Smith out of office. Of course, this meant that they now had to claim that his infractions were deliberate, in contravention of their own initial findings.

Those who feel that the courts "found" against David Smith are uninformed. The judicial process was interrupted by a judge who decided that Smith's filings were "too early, too late, and not in time". He then tossed the case and prevented Smith from ever getting to present his case to a real judge. The courts simply didn't want to rule on the constitutionality of the matter, so they took the cowardly way out. The only "judge" who ever heard the case was an administrative law judge and, as any lawyer can tell you, that is a far cry from the Superior Court and real judges.

Interestingly enough, and not very well covered by the media, once Smith was kicked out of office and Clean Elections had flexed its muscles, Smith's fine was reduced back to the $2,500 that had been negotiated nearly two years earlier.

Smith ended up the poor sap who got to be the guinea pig for Clean Elections and their punishment process. He was not treated equally to other candidates with the same or similar violations. Selectively prosecuting for any reason, not to mention based on ideology, should terrify the average citizen.

Greg's points are valid.

[AZBluedog]

The guy is an attorney. Not some poor sap, he knew the rules/law.
Comments like the "hard left fly in the face of the "extreme right" mantra regarding taking responsibility for ones actions

[Travis]

The time to kill this Clean Elections monster is now. The more politicians that are entrenched in this system and then win and become a supercandidate because of it, the less likely they will be inclined to oppose it. It really should be called the Incumbent Protection Act. How many laws and commissions do you know that actually have an ad campaign run to promote it? Does anyone else want to puke after seeing the commercials run by the "Clean" Elections Commission during campaign season? "For the cost of this bumper sticker, you can get your guy elected!" REALLY? Most people who have not tried to run the gauntlet that is Publicly Financed Campaigns, cannot imagine the inequity and arbitrary nature of this political beast.

There are too many flaws to mention, but here's just one example.

How many people are aware that the way the "Clean" Elections Commission arbitrarily sets the "in-kind" contribution amount awarded to a candidate who is the subject of a "hit" piece by their opposition is to simply call the opposition and say, "Hey, how much did you spend on this hit piece?". The answer is often, "Gosh, let me check on that and get back with you." In the mean time, the candidate who has been hit sits on his thumbs and waits for the opposition to call back. Then the commission looks at the peice and says, "Well, really only 10% of this is a "hit". So when the opposition has leisurely taken the time to get back with the commission, and tell them the cost is $1,000, the commission then gives the candidate $100. Now, if the hit piece lands in voters' mailboxes two days before the election, that means the candidate takes his measley $100 check and does what with it? Well, if you're Ed Ableser, you buy a margarita machine and party with your friends!

This system if not fixable. It is a waste and a scam. Unfortunately, if you want to win, often you must access this system because to do otherwise, puts you at a disadvantage. Who will be the brave soul who wins using this stupid law and then speaks out against it? Want to see how fast his campaign is audited? And by the way, if you think you can run with this system and not break the law, you're dreaming!

[Ray G]

Blue dog, you're completely missing the point.

There are rules that are being conveniently overlooked, and thus not all citizens are being treated equall.

That pesky little thing called rule of law is supposed to ensure that we are equal in the eyes of the law, but of course, this proves otherwise.

Hayek made the point in his most famous book, along these lines. If there is no speed limit posted, or even if there is, and the police pull drivers over and make them pay fines according to whatever the officer thinks they ought to pay, this is the basic breaking down of the rule of law, and this is exactly what is happening to Smith.

Yeah, the speed limit was cleary posted, but all of the other drivers were blowing right on by Mr. Smith. So why'd the officer pull Smith over and enforce the posted speed limit, and not pull anyone else over?

Regardless of why that is, and whatever your own personal feelings about Smith may be, it's wrong. Period.

[AZ Blue Dog Democrat]

Ray,
I think the point is and has been Clean Elections is bad and must be put down. That is what I see here.
The comments I have seen have little to do with an attorney that overspent his campaign and more to do with "getting Clean Elections". The view that Clean Elections is some sort of Incumbent protection act is laughable.

The comment about Judges being “real” is silly; the comment that an opponent can set the cost of the hit piece is way over the top. Clean Elections allows a Democrat (in say Mesa) to get 170-200 signatures (from Democrats to get on the ballot), then get 280 5$ donations from any one in the district. This allows compaction and funding so a real race can be fought. As long as you don't buy booze and say pay a co-ed to be your campaign buddy, spend the $ on voter contact. The same can be said for the republicans in LD 15 (who always get beat). I live in a one party district and we need the market place of ideas to have competition. Weather Mesa or Central Phoenix, we, the voters get short changed when only one Party (and the greens or libertarians) participate. My point is the Clean Elections System strengthens our two Party system and thus is beneficial to the body politic.

I would suggest that some of you guys go to a Clean Elections training class and see how the system works, nothing is perfect, but it is a good system. As for Smith, he of all people should know what he was doing, he is an attorney

[Travis]

I have been to the candidate's training class and the treasurer's training class for "Clean" Elections and have been in the office when the phone calls to opponents were made in regard to in-kind contributions. My comments are true, and first-hand knowledge. I have now participated in "Clean" Elections in three election cycles. Simply dismissing comments does not make them untrue.

[Mark]

Blue Dog, isn't our Governor also an attorney? I guess you are now forced to argue that she must also be removed from office for her numerous violations of our taxpayer-funded election system? I mean let's not forget that she was spending monies and incurring debts before she had even raised a penny of the allowable seed money.

[AZbluedog]

I am not dismissing you views I am simply disagreeing with them, because the words are disembodied you can’t pick up on my verbal intonations.
I am a Democrat and live in Central Phoenix; I think we can agree that is demo turf. To be frank I am not happy with some of the socialist democrats we have (14 and 15). Clean Elections is a great tool to challenge them in a primary. The ½ deads that make up the 15-20 people who show up to the LD meetings are fanatically pro incumbent. They will not let any one in their little club and horde the information like good little party members. The $ Clean Elections provides can give a regular guy a fighting chance. As long as he/she dose not pull a Ed Z, and spends the $ on voter contact

Do you live in a one party leg dist? If so, do you think a challenger would have a chance in a traditional system? Perhaps the view is different in a republican area, I do not know.

[AZbluedog]

The Guv is a good moderate Dem who just stomped the heck out the other guy, sounds like you are pushing sour grapes.

[AZbluedog]

just a thought, Smith overspent by 10% that is the death number and all who are involved in Clean Election know it. that is why he got spanked, not some sort of selective enforcement

[BobH]

>The Guv is a good moderate Dem who just stomped the heck out the other guy, sounds like you are pushing sour grapes.

Sounds like you didn't answer the question.

[AZ Blue Dog Democrat]

Hey Bob,
I though I did, Smith crossed the line of Death (10% overspent, I think that is correct) The Guv, yes I am a fan I am also a Blue Dog Democrat, did not.
That is why Smith got spanked and removed from office and our Guv did not.
I am not being flippant. I just think there are some people who want to kill Clean Elections

[Ray G]

I'm skipping past the last few comments in order to reply to Blue dog's comment immediately following mine.

The initial point is - was - the subjective application of a law.

Then an example was given of why a certain thing or instance made such subjective abuses more likely, in this case it is Clean Elections.

Your argument was that Smith was wrong, and so hang 'im high. But that side of it had already been acknowledged, even highlighted in the original thread by Greg.

If you have something to add on that point, in defense of or against, then let it fly, we're all ears. But so you've done nothing but build and attack these fragile little straw men of yours.

And yes, Clean Elections is wrong on several levels and needs to be killed in the name of liberty, and individual rights. It is a backdoor for the govt to control political campaigns, effectively taking away the citizens' ability to mount their own. In short, it goes hand in hand with freedom of speech violations like the McVain/Feingold travesty.

[Ray G]

This is for Blue dog, Jason Rose, and the various others who stalk around here unable to focus on the crux of the matter.

http://www.amazon.com/Being-Logical-Guide-Good-Thinking/dp/0812971159/sr=8-1/qid=1168473400/ref=pd_bbs_sr_1/002-0592550-2213623?ie=UTF8&s=books

Very interesting little book; it is essentially the Strunk & White for logicians, and should be required reading for the emotionally motivated and logically challenged blog visitors.

[Tim]

Actually, because the legal process was short-circuited, we never got a real judgement over the extent of Smith's overspending. He was also being punished for three violations, not one. Failure to properly disclose spending on his reports (which was complied with in a manner IDENTICAL to several other candidates) was one where he got a raw deal because the other candidates who did what he did got no fine or penalty, but they wanted $10,000 from Smith. There was also the question of whether or not Smith's overspending was intentional or not. You might not feel that is a big deal or not, but it is the difference between having to pay all of the money back or not (another $35,000+). Then there was the question of IF he overspent and then by HOW MUCH did he overspend.

Of course, once they put his pelt on their wall, they suddenly backed down from their other accusations and kicked $45,000+ in fines down to the original $2,500.

Selective only begins to describe this prosecution.

[Mark]

Blue Dog, let's not forget that the governor sent out thousands of emails (I heard 180,000) soliciting $5 contributions. Because thousands of Republicans received one of those emails we can rightly assume that the Governor received one huge mother of an in-kind contribution in email addresses. Such addresses should cost around fifteen to twenty cents a piece. Where was it reported? How much did she overspend? If she only "received" 40,000 email addresses then she over spent by 13%. To make matters worse she sent our her email blasts before she had even raised her seed money, which means she incurred a huge debt (that she never reported) in direct violation of (your beloved) clean election laws.

Now please tell me how the clean election candidates who abided by those laws had any ability to fairly compete with the Governor, especially in light of the fact that the CEC had no desire or intention of seriously holding her accountable?