Secretary of State Ken Bennett and Attorney General Tom Horne detail a lawsuit filed to force a federal agency to include a requirement on its voter registration forms that applicants provide proof of citizenship. [Howard Fischer/Capitol Media Services]

Howard Fischer/Capitol Media Services

The state Court of Appeals will decide whether groups that run commercials publicly criticizing elected officials and candidates right before an election have to disclose their donors.

Secretary of State Ken Bennett wants the judges to overturn a lower court ruling that declared the state's disclosure laws unconstitutional and unenforceable. Bennett said that ruling, left undisturbed, would deny Arizona voters information they need to make informed decisions.

The move is getting a fight from Tom Irvine, who represents the Committee for Fairness and Justice. That committee, financed in part by Democratic attorneys general around the country, ran TV commercials just before the 2010 election that said Republican Tom Horne was against tougher penalties for rape and permitted teachers viewing pornography to be near school children.

Maricopa County Superior Court Judge Crane McClennen ruled last year the commercial was about issues and not about the campaign, even though it ran just weeks before the general election.

Hanging in the balance is the ability of groups to run anonymous smear campaigns against candidates. That's because McClennen not only threw out charges against Irvine's client but barred the state from enforcing its disclosure laws on all such organizations.

Bennett said that ruling should not stand.

“In a democratic republic, where we're asking the people to select their leaders, who are then going to make important decisions on their behalf, I think the public expects and deserves to know who is behind efforts to influence their opinion,” he said.

While federal courts have expanded the right of independent groups to get involved in campaigns, judges have said states can impose reporting requirements on “express advocacy” of someone's election or defeat.

Arizona law makes it clear that line is crossed when advertising, mailers or other materials use certain “magic words” like “vote for,” “elect,” “defeat,” or “reject”' when referring to a specific candidate.

But the law also says reporting is required when materials “in context can have no reasonable meaning other than to advocate the election or defeat of the candidate.” Factors include putting the candidate in an unfavorable light and the timing of the communication.

In this case, the committee aired a commercial when Horne, then state school superintendent, was running for election for attorney general, saying:

- As a legislator he voted against tougher penalties for statutory rape.

- When he was on the state Board of Education he voted to let a teacher back in the classroom who had been caught viewing child pornography on a school computer.

- Viewers should “tell Superintendent Horne to protect children, not people who harm them,” giving his office phone number.

After the election, Maricopa County Attorney Bill Montgomery ordered the committee to comply with finance disclosure laws. But McClennen ruled the ad was “issue-oriented speech” and not “express advocacy.”

The bigger concern for Bennett is McClennen declared that, absent those “magic words,” the state cannot compel compliance with campaign finance disclosure laws by any similar group.

In legal briefs to the appellate court, deputy Maricopa County Attorney Colleen Connor said that makes no sense. She said the committee is listed with the IRS as a political organization, with its registration form saying it is operated to accept donations to spend money “to indirectly influence the selection, nomination, election or appointment of individuals to state or local public office.”

And Connor said all the judges need to do is look at the ad itself.

“The television commercial targeted Tom Horne by using visual campaign-type posters of his image, making inflammatory statements, with ominous background music and airing those commercials just days before the general election,” she wrote. “Judges, like jurors, are NOT required to leave their common sense at the courthouse door.”

Irvine, however, said it's only proper to have a clear and bright line of what is and is not considered campaigning, and he said it has to be limited to those “magic words.”

“Otherwise, speech would be chilled because some government regulator would be deciding what the purpose of the speech was,” he said. And that, said Irvine, leaves those who want to run issue-oriented commercials in the dark — and at risk of winding up being charged with breaking the law.

He said this is particularly important in cases involving incumbents seeking either reelection or a new office.

For example, Irvine noted that Horne, as state school superintendent, was involved in an effort around the time of his 2010 campaign for attorney general to kill a Mexican-American studies program in the Tucson Unified School District. He said Bennett's position that each commercial must be evaluated would have meant that anyone taking ads criticizing Horne's actions would be at risk of running afoul of campaign finance laws.

But Bennett said campaign finance laws cannot be reduced to what would be the equivalent of simple math formulas.

He said elected officials are supposed to use their judgment to decide whether someone's action falls within or outside the law, and Bennett said if there is any question, he wants to err on the side of more disclosure and not less.

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