Some dismiss it as a turf battle between two state agencies.
Others as a partisan fight between Democrats and Republicans.
They are talking about so-called “dark money” in Arizona politics as if it were inevitable. But we don’t feel either of those labels applies.
Secret campaign spending, just like anonymous speech on the Internet, can poison the political process, no matter the party or the office being sought. It increases the use of attack ads and character assassination by not being held responsible for the content of the speech. That undermines voter confidence and can depress voter turnout, which is already low.
SCALIA ON 1ST AMENDMENT
There are some who defend giving to campaigns anonymously as a First Amendment right. But all kinds of limits on campaigning and spending have passed court muster. And in the wake of the Citizens United, which essentially gave individuals and corporations the right to spend unlimited amounts of cash on elections as long as they do it independently of candidates, transparency is never more important.
Here’s Justice Antonin Scalia in dismissing claims of privacy rights for campaign contributions: "There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance.”
And here is Scalia again in a previous interview defending Citizens United: “I think Thomas Jefferson would have said the more speech, the better. That’s what the First Amendment is all about – so long as the people know where the speech is coming from.”
In other words, a functioning democracy depends on requiring people to stand up in public for their political acts. Some call it civic courage, but the opposite, as we have seen with dark money, is a race to bottom of unaccountable attack ads that in another era would be called just plain cowardly.
How has dark money played out in Arizona? The last gubernatorial race saw the Ducey and DuVal camps raise $5 million between them. But secret dark money poured another $9 million into the campaigns.
The Secretary of State race saw $300,000 in last-minute secret attack ads against Democrat Terry Goddard, who was campaigning against dark money. He lost, and the Republican winner, Michelle Reagan, now says she doesn’t think the state has jurisdiction over dark money groups as long as they have obtained a nonprofit social welfare tax exemption from the IRS. (Officials in neighboring California, Colorado and New Mexico all have disagreed and moved successfully to force dark money disclosure.)
Then there were the races for Arizona Corporation Commissioner. Two candidates aligned with solar fee hike proposals by Arizona Public Service benefitted from $3 million in dark money spending that phone records now suggest was coordinated by APS itself. If true, this strikes at the very heart of what the ACC is all about: independent regulation. At the very least, the commission ought to require full disclosure of the campaign spending of the utilities it regulates if dark money rules won’t be changed.
INTO THE VACUUM
Stepping into the regulatory vacuum has been the state Clean Elections Commission. It was given the power by voters in 1998 after the AzScam scandals to reduce the influence of big money in politics by setting up publicly funded campaigns. That includes regulating campaign finance, and last week it adopted a rule requiring any committee spending more than half its communication budget on a political race to disclose its funding sources.
That seems reasonable to us, especially if the commission interprets electioneering to mean any reference to a candidate or a ballot issue, not just so-called “ express advocacy” that includes phrases like “vote for” or “vote against.” That is how the social welfare groups have escaped disclosure so far.
Secretary of State Regan opposed the rule as intruding on the jurisdiction of her office, even though she has conceded she doesn’t think she has any jurisdiction over dark money. Thus, it can’t be called a turf battle if one side doesn’t plan to defend any turf it happens to win.
The Arizona Chamber of Commerce opposed the new rule: "We're going to vigorously defend our right to participate in the process,'' said Glenn Hamer, president of the Chamber.
In response, we’d ask Hamer what are he and his members trying to hide – and why? Is the chamber, referring back to Justice Scalia, advocating a different form a courageous self-governance than the Founding Fathers had in mind?
CITIZENS INITIATIVE LOOMS
Looming next year is a possible citizens initiative on dark money being led by the very same Terry Goddard who lost to Reagan amid a flurry of last-minute anonymous negative ads. Critics are sure to label the initiative personal sour grapes, but the proposals seem sound no matter who they are coming from:
-- Disclosure of all political expenditures that benefit or harm a candidate or a ballot proposition.
-- Daily reporting of all expenditures or contributions.
-- Identification of the original donor of all political expenditures, not the corporation that wrote the last check.
-- Internet posting of all political contributions or expenditures within 24 hours.
-- And significant penalties for failure to disclose, including barring from office a candidate who benefits from funds when the source is not properly disclosed.
VOTERS TO DECIDE
At this point, Goddard and his group, stopdarkmoney.org, are still fine-tuning the language, which will require more than 150,000 signatures to make the ballot. And the initiative will no doubt be targeted by the very dark money it seeks to expose. The Legislature or Secretary of State could head off the initiative by taking action next spring. The fact that they almost surely won’t says volumes about the health of representative democracy in Arizona and why a dose of transparency will at least help voters make a more informed diagnosis at the polls.