The Citizens Clean Elections Commission won't make a last-ditch effort to help candidates denied matching funds.
Commission members voted Monday not to ask U.S. District Court Judge Roslyn Silver to "clarify'' her January ruling which declared unconstitutional a provision of the 1998 law providing extra cash to publicly funded candidates when their privately financed foes spend more.
Todd Lang, director of the commission, said the panel made the decision after getting advice behind closed doors from its assistant attorney general.
Lisa Hauser, attorney for Gov. Jan Brewer, called the decision "gutless.'' Hauser wants the commission to go back to court specifically to allow Brewer, denied matching state dollars, to raise extra money privately.
Buz Mills, one of the governor's Republican primary foes, already has spent nearly $23 million on the race. Without court action, Brewer is limited to the $707,440 she has received in public funds.
Hauser said she will be talking with Brewer to see if the governor wants to file a legal action on her own. She acknowledged, though, that path is fraught with pitfalls: Even if Hauser convinces the judge that publicly funded candidates like Brewer should be entitled to raise private dollars, there is no guarantee the commission will approve.
Silver ruled that having the state provide extra money to publicly financed candidates infringes on the First Amendment rights of those using their own cash or that of private donors. The judge said their constitutional right to spend money is chilled by the fact that every dollar they put into the campaign would be matched for their foes.
She ordered all matching funds halted; the U.S. Supreme Court affirmed that order last week, blocking matching funds while it considers whether to review a 9th Circuit decision declaring the matching funds legal.
Last week, at least partly at Hauser's request, commissioners directed their staff to consider asking Silver for a clarification. Specifically, they wanted to know whether all matching funds are barred, or only those which come from the state.
That distinction is crucial: The commission's rules permit publicly funded candidates to seek private donations when matching money is not available. In this case, they theorized, the court's order made matching funds "unavailable'' even though the commission has the cash.
On Monday, though, Lang said making that argument to Silver not only made no sense but undermined the commission's effort to eventually convince the Supreme Court, if it takes the case, to restore the law and state-provided matching funds. He pointed out that attorneys for the commission told Silver that there is no provision in state law to let them get those matching funds from other sources.
That argument, Lang said, was designed to convince the judge that overturning the law would cause permanent harm.
To argue otherwise now, Lang said, undermines the commission's own arguments.
Lang noted commission attorneys also told Silver there is no option for candidates who already have accepted public funds to give them back and start over again with private money.