In 1998, Arizona voters passed Prop 200 also known as The Clean Elections Act. It established a five member commission that would make rules as to the providing of tax payer money to participating candidates. It reduced limits on contributions to non-participating candidates and private donations to participating candidates. It also administered a “matching funds” program by which a participating candidate would receive extra money to match any private donations to non-participating candidates over a certain amount.

In 2011, as a result of a suit filed by the Goldwater Institute, the U.S. Supreme Court struck down the matching funds provision because it violated the first amendment of the U.S. Constitution. It noted that candidates would limit their own campaign activity and funding to avoid supporting their opponents. Individuals who would normally participate in the process by donating to the candidate of their choice realized that, due to the matching funds, that they could not effectively support their candidate.

Last year the Legacy Foundation Action Fund ran ads in several states criticizing the U.S. Conference of Mayors and its president. See the problem? Well, there was none, but since the president was Scott Smith of Mesa, Arizona, and a gubernatorial candidate, the Clean Elections Commission decided that the ads were a campaign donation and fined the group $95,000 for not reporting it to them.

The Secretary of State for Arizona, Michele Reagan, whose responsibility it is to administer elections and all laws pertaining to them, knew that the commission had no authority to regulate independent groups. She ran it by an administrative law judge who agreed and reversed the fine.

The Clean Election Commission in effect said forget you and the judge you rode in on, and is pressing the fine.

So now the Secretary of State has to pursue a legal challenge against the commission. She is being represented by, you guessed it, the Goldwater Institute. Here are some statements from the Goldwater Institute lawyer, Jim Manley, as they appeared of the Secretary’s web site:

“This is a serious case of mission creep. The Citizens Clean Election Commission has absolutely no authority to regulate or fine independent political groups,” said Jim Manley, a senior attorney with the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation and one of the lawyers representing the Secretary of State. “The Clean Elections Commission is trying to enforce political speech regulations that directly contradict the rules the Legislature and Secretary of State have already set up.”

The Clean Elections Act passed by voters in 1998 gave the Commission the authority to provide taxpayer-funded political candidates with “matching funds” when an independent expenditure was made on behalf of their opponents. In 2011, the matching funds provision was struck down by the U.S. Supreme Court as unconstitutional in a case filed by the Goldwater Institute. With matching funds eliminated, any authority to examine independent expenditures and their costs was also eliminated.

The Clean Elections Commission never had authority to regulate or fine independent groups, it only had the ability to determine how much an independent expenditure was worth to opponents of a taxpayer-funded candidate and then provide matching funds in that amount.

So, if the Clean Elections Commission can make up its own rules and determine the extent of its own authority, could it fine a reporter who wrote an expose’ on a candidate? Could it fine you for that unreported $5 bumper sticker? The Clean Election Act never delivered on the promises and is fraught with unintended consequences - most of which are direct threats to free speech. Repeal it.