State lawmakers took the first steps Tuesday to cut down on so-called “dark money” in political campaigns but with no clear indication that it will work – and whether it's even legal.
The legislation approved by the Senate Elections Committee requires that all campaign commercials, literature and similar materials include the names of the three largest contributors. Sen. Michele Reagan, R-Scottsdale, said it's unacceptable that people can spend large amounts of money to influence elections and remain hidden.
On paper, the vote for SCR 1003 was unanimous, but several GOP legislators, after hearing from lobbyists, said they feared the measure creates unnecessary hurdles.
Sen. Kimberly Yee, R-Phoenix, said openly worried that requiring people to get out from behind the committees they create to affect elections might chill their First Amendment rights to speak freely.
That contention drew derision from Reagan. She said Arizona has moved for years in the direction of greater disclosure.
“Then wouldn't spending have gone down?” she asked. “But it hasn't.”
She lashed out at the lobbyist and special interests who are on record in opposition, spanning the spectrum from the Arizona Chamber of Commerce and Industry to the state AFL-CIO.
“Their clients do not want you to see what they're doing,” Reagan said.
The problem is there has been a proliferation of independent campaign committees especially in the wake of a 2010 U.S. Supreme Court ruling allowing corporations to influence elections. But any campaign reports filed – and not all of them do – list their donors as yet other organizations.
Secretary of State Ken Bennett said it doesn't stop there, with those organizations listing still other groups with nebulous names as contributors. Bennett compared the system to Russian nesting dolls.
“We're seeing problems all over the country and in our state of people, the public, not being able to tell who is trying to influence their vote,” he told lawmakers. And Bennett told legislators that should concern them.
“Sometimes these are friends,” he said. “And sometimes you would think maybe they're not so much of a friend.”
But problems remain.
One is a state court ruling that concluded not all TV commercials and mailings that happen to mention candidates are considered efforts to influence an election. Instead, the judge said, they can fit within the definition of “issue-oriented speech,” – not covered by campaign finance laws – even if they were run right before the election and even if they said negative things about a candidate.
Reagan said she hopes that the language of what the law covers, known as “express advocacy,” can be made broad enough to ensure that some “hit pieces” do not escape disclosure requirements.
The bigger issue may prove legal. Attorney Mike Liburdi told lawmakers they have to recognize there are constitutional rights at issue. He argued that individuals are free to exercise their First Amendment rights anonymously.
“Disclosure of some of these speakers may result in a chilling effect,” said Liburdi. “And this chilling effect could suppress speech.”
He represents the Arizona Victory Alliance which spent more than $475,000 in independent expenditures last election to elect Republicans and defeat Democrats. And much of that cash came from other political action committees and organizations.
Yee echoed that point in her comments on the legislation.
“We certainly shouldn't allow the government to get in the way of the value of our speech,” she said.
Reagan, however, rejected that claim of unnecessary government intrusion.
“You all, as candidates, you go out there, put your name on everything you do,” she said. “Accept a dollar. Spend a dollar. You disclose it.”
But she said existing law lets individuals or corporations come in, spend unlimited amount of money to influence the race, “and you'll never know who they are.”
Bennett conceded that even if this measure becomes law – and even if it holds up in court – there are still major loopholes. The biggest, he said, is the gap between the time expenditures can be made and when they have to be reported.
For example, Bennett said, any money spent last month for the 2014 campaign does not have to be reported until the end of June. And he said that money spent just days before an election can be hidden from public view until after the election is over.