Really Thin Ice

The Project for Arizona's Future is mailing pieces like these into key legislative districts.  Someone is on really thin ice because PAF has steadfastly refused to disclose its donors.  Is any of the funding from corporation or unions? Has PAF registered as a campaign committee?  Is the money collected for these pieces within the normal contribution limits?

Perhaps PAF will try to argue that they are simply discussing issues, not expressly advocating against candidates.  After all, the pieces don't say "vote for."

Of course, they don't have to.  Here's ARS 16-901.01

A. For purposes of this chapter, "expressly advocates" means:

2. Making a general public communication, such as in a broadcast medium, newspaper, magazine, billboard, or direct mailer referring to one or more clearly identified candidates and targeted to the electorate of that candidate(s):

(A) That in context can have no reasonable meaning other than to advocate the election or defeat of the candidate(s), as evidenced by factors such as the presentation of the candidate(s) in a favorable or unfavorable light, the targeting, placement, or timing of the communication, or the inclusion of statements of the candidate(s) or opponents...

Let's see, These pieces are obviously "direct mailers."  Were they targeted?  Well, they were sent to district 9 and referred readers to a website that covers district 9.  It clearly identifies the candidates.  So far so good.  Are the candidates placed in an unfavorable light?  Definitely.  Placement?  There's no better placement than direct mail.  It's not like this is a billboard on I 40.

Of course, someone could argue that the election is a long way away so the timing factor hasn't been met.  That's a nonstarter.  We are in the era of the permanent campaign.  Just look at the speculation in CD 5 or the presidential race.  Can anyone really argue that we are not in the 2008 campaign season.

Some might argue that Stump and Murphy technically aren't  candidates.  Again, that's a nonstarter.  Prosepective candidates don't become actual candidates until they file their nominating petitions in late June of the election year.  If the court were to determine that campaign finance rules don't apply to unofficial candidates, then corporations and unions could engage in express advocacy with impunity until the filing deadline.  That holding would completely gut Arizona's campaign finance laws. 

Presumably, the people behind this piece have a good lawyer, but since guessing wrong is a class 6 felony, they should hope that he's a very good lawyer.

Mainstream Arizona tried this trick a few years ago, and they even had a good lawyer.  They lost big time.  Check out this case and then tell me that this piece isn't candidate advocacy.   

I'm sure the donor list will become public eventually...nothing like a subpoena to loosen things up.  I'll be interested to read (and print) who's on it.   

Comments

[DSW]

I absolutely agree with you Greg. The Project for Arizona's Future (a non-profit 501c(4)? ) can only send this type of piece to their members and be in compliance with Title 16. I guess the big question is who received the mailer and are they a member. A very very good lawyer would mount a challenge to have them disclose the info - especially if the recipient of the mailer does not consider themself a member.

[Tim]

Well we know Goddard won't touch them, so the question is, is Andy Thomas brave enough to do it? If he'll go after Republican Russ Jones in Yuma, this would seem to be a no-brainer!

[timothy]

Hold on a second. Jones is charged with multiple felonies. Campaign finance issues are mostly civil, so...someone has to complain to the SOS, AG, County Recorder, etc., but to be really effective has to go right to court and ask for them to stop/reveal/file/register. Don't bother complaining to IRS unless you're under 30 because nothing will happen in your lifetime.

[Rep. Rick Murphy]

I can state with absolute certainty that PAF is mailing these hit pieces to non-members. My wife and I each received one, as have many Republican PCs in my district. None of us are members of that organization. These pieces went out in at least a few other districts, as well. While I didn't alert Greg to this issue, I appreciate him mentioning it. To whatever degree the relevant laws are enforced, it must be equal on all parts of the political spectrum. Sometimes that doesn't seem to happen.

[Tim]

Mostly Timothy, but not exclusively... Violate election laws and you will face serious consequences. You can complain to the Maricopa Elections Department if you want, since they'll basically turn it over to the County Attorney (their lawyers) to determine if a violation took place...

[Joe]

PAF's board is here:
http://azfuture.org/Board.asp

Nothing like telling a board member what you think of their organization.

[Ann]

Interestingly, they are very specific about the issues that they would use their resources to address. However, they do not speak to their choice of solution only a need for one. We can all agree that improving health care and education, managing growth and transportation are issues that need attention. But, how much agreement would be had in the solutions? If you look at the names on the board of directors (or advisors) there are some pretty well known names, names that have been associated with some very specific propositions in the past. Be it Steve May (Prop 107) or Grady Gammage (Prop 106), these folks have put their own name and money behind changing the Arizona Constitution previously. The pro-Prop 106 campaign had millions dumped into it from out-of state resources, even if funneled through local entities. The anti-107 campaign had huge funding from one person. A George Soros or John Sperling can make or break any campaign.

Here's hoping the court shuts them down and quickly. They have had some successes and some failures in their previous efforts to push their agenda off as good for Arizona. Experience is on their side as to how to convince the general voter that they are right, and the money is not that hard to come by when you have the huge out of state resources some of these issues bring with it. This is not to be taken lightly.

[Walter]

A little more light on the folks who do the dirty work at PAF. From the Feb. 25 posting at Random Musings covering the Harry Mitchell district office opening:

One of the highlights of the afternoon was seeing Lauren Kryder, formerly volunteer coordinator for Harry's campaign. She's moved to the Valley and is working with Kelly Ward at a new organization, The Project for Arizona's Future. The Project is a non-partisan non-profit group "dedicated to educating Arizona voters about key issues and increasing their participation in the political process."

Right now, their chosen issues of interest are effectively managing growth, strengthening education and improving access to health care, especially for kids.

According to Lauren, one of the ways the Project is setting about to achieve their goals is to let people know what the Legislature (and their legislators) is doing.

FYI -- Kelly Ward worked on JaNO 2002 and was Mitchell's campaign manager in 2006. She is good at her job -- mean, takes not crap, intimidator.

[Chuck Blanchard]

Greg:

It looks like you need to take my election law class next Fall. Grin.

I don't think this comes even close to being the express advocacy required to be viewed as a political mailer. Rather it is plainly an effort to influence current Legislators on current issues (involving health care) now being debated at the Legislature. It is telling that the "call to action" on the mailers is to contact the Legislators involved by email to urge them to take action on pending legislation.

There is precedent for this view. Last session, Centennial Leasing was involved in a huge battle with the car dealers. Michelle Reagan and Senator allen were staunch supports. In the middle of the session, Centennial sent mailers in the district paraing both Regaon and Allen. A complaint was filed with both the Secretary of State. Both the Attorney General and the Clean Elections Commission (at the advice of its Executive Director) concluded that this was not a mailing designed to influence elections.

The case here is even stronger: (1) the elections is more than 18 months away (not six months), (2) the mailings have a call to action linked to the legislation session (unlike the Centennial pieces), and there are no candidates in any of these races (there were declared candidates at the time of the Centennial mailings). See also FEC v. Colo. Republican Fed. Campaign Comm., 839 F. Supp. 1448, 1456 (D. Colo. 1993) (rejecting FEC’s argument that Colorado Republican Party’s independent radio advertisements attacking the likely Democrat senatorial candidate were not express advocacy because the advertisements were broadcast “seven months before the general election”), aff’d, 518 U.S. 604 (1996), rev’d on other grounds, 533 U.S. 431 (2001).

A.R.S. § 16-901.01(A)(2)(a) provides, in relevant part, that express advocacy is a communication:
"That in context can have no reasonable meaning other than to advocate the election or defeat of the candidate(s), as evidenced by factors such as the presentation of the candidate(s) in a favorable or unfavorable light, the targeting, placement, or timing of the communication, or the inclusion of statements of the candidate(s) or opponents . . . ."

The Citizens Clean Elections Commission has interpreted A.R.S. § 16-901.01 as follows:

"Speech cannot be “express advocacy of the election or defeat of a clearly identified candidate” when reasonable minds could differ as to whether it encourages a vote for or against a candidate or encourages the reader to take some other kind of action. If any reasonable alternative reading of speech can be suggested, it cannot be express advocacy subject to the Act’s disclosure requirements."

A.A.C. R2-20-109(D)(3)(c).

Thus, under A.R.S. § 16-901.01(A)(2)(a), the standard for evaluating whether the Mailers are express advocacy is not whether a reasonable reading of them is to encourage a vote for the identified candidates. Nor is it whether encouraging a vote is the most reasonable reading. The test is whether urging the election or defeat of the legislator is the only reasonable meaning that can be assigned to the Mailers.

Here, there is such a reasonable meaning--indeed, the most reasonable meaning--this is an effort to influence health legislation this legislative session.

finally, I might add that there are very serious First amendment implications here. Do you really want an election law regime that stifles advocacy on legislative issues? when I was inthe Legislature, several groups (including one then led by Len Munsil) attacked my decision to hold a bill or to vote one way or another. I am sure that this hurt my election chances, but I understood that this was fair game for legislative advocacy, and did not run to complain to the Secretary of State.

[Greg Here]

Thanks Chuck. Actually I am taking your Election Law class in the Fall. :) You have raised some good points, but Mainstream Arizona raised similar points and lost.

I think the district 11 piece I posted earlier was an even better example. In that case the Republican was shown in a negative light and the Democrat looked really good. I think these are really close to the edge.

But hey, you are the lawyer.

[Chuck Blanchard]

Greg:

I look forward to having you in the class!

I think that Mainstream Arizona is distinguishable because there the communictions occured long AFTER the legislative session had ended and the only reasonable reading of the mail pieces was that they were intended to inflience the election.

Here, in contrast, the focus of all of the pieces (including the LD11 pieces) was on pending legislation now being debated inthe Legislature. And the election is far, far away.

[mike]

If you go to PAF's website, the donation page says they are required by law to ask for donor's employer and occupation info. If election laws don't pertain to them for disclosure purposes, why would it when it comes to collecting information? Can Chuck Blanchard clarify if some reason exists for the discrepancy?

[Tim]

It is not surprising to see a Democrat like Chuck Blanchard defend the actions of the Governor's front group. Although he does teach law and I'd like to believe his opinion on this. Of course, his arguments in defense of the 1st Amendment are also a likely unintended attack on the Clean Elections system itself. I wonder where the good professor stood on Clean Elections when it was being passed? Perhaps he can share that with us as well?

[Chuck Blanchard]

To all:

I welcome a legal argument against the one I presented, but so far all I am getting is a quasi ad hominum attack (he's a Democrat. The horror).

Mike:

Good question. I have no idea why they ask for donor information. They are not a political committee so do not need to collect this information. My guess is that it is the result of the donor software being used, but I don't know the facts. But, of course, that has nothing to do with my legal analysis.

Tim:

A fair point. I support the concept of the Clean Elections Act, but have a few serious caveats to that support. First, the amount of money for statewide races is too small. In my view, for example, you can't run a statewide race for the amount allowed for Secretary of State. Second, I am also concerned that the system is getting way too complex with good people (on both sides of the aisle) getting caught up in enforcement actions.

On the larger First amendment issue, I do have concerns that some well intended campaign finance reforms cross the line and limit speech. For example, the McCain Feingold Act puts severe limitations on genuine issue speech in the time right before the election. That is the issue in the Wisconsin Right to Life case now pending in the Supreme Court. While I think "sham isue ads" can be regulated, I don't think real issue ads can be regulated. To give an example, if there is a key abortion vote in October of an election year, I think it would violate the First Amendment to regulate a right to life mailer that is linked to that issue.

[mike]

Chuck, thanks for the reply. I agree that the he's a dem so must be wrong argument is BS. However, I think there is more to the "required by law" statement on their donations page. To me, it is proof that they don't even understand the purpose and scope of their group. Probably because they are political when they send out hit pieces and non-political when anyone asks for their donor list. Not that this is the key to the whole thing, but it certainly is evidence of the fact that the line is getting really fuzzy here.

[Tim]

A fair enough reply, except for the first part. You say you welcome good questions and then say "all you're getting" are attacks. Yet there were only two responses posted after your lengthy dissertation. You responded to the first with "Good Question" and the second (mine) with "Fair Point"... Mike's post didn't even mention you at all. If 2 out of 2 posts contain good questions and fair points and 1 of them doesn't even mention you, I would submit that your skin has thickened since you left office, at least if you really believe that all you are getting is attacked!

I'm not attacking, just responding to your post...

[Chuck Blanchard]

Tim:

Mea culpa. My first paragraph was an ill-executed effort at humor. (I was playing with the idea that being a Democrat is an ad hominum atttack on this website to many, just as being a Republican or conservative is an ad hominum attack on sites like Daily Kos. The humor clearly got lost in my execution)

In re-reading my post, I see where you are coming from. As you can tell from my introduction to your two specific comments, I agree that they were good questions.

[Tim]

No problem... We're happy to have you on here! It is nice to have qualified opinions from time to time to break up the rants and musing of the rest of us... And I'm not being sarcastic! I actually do learn from you folks, so keep posting!