Calling it a “stunning power grab,” Attorney General Tom Horne wants a judge to block a decision by the Citizens Clean Elections Commission to investigate whether he has been using his office for campaigning.
Horne's attorney, Timothy La Sota, contends the commission lacks legal authority over anything Horne is doing because he is seeking reelection using private donations. La Sota said the commission can police the activities of only those who have accepted public dollars for their campaigns.
But Tom Collins, the commission's executive director, said when voters created the commission in 1998 they did more than simply authorize them to give out public funds. He said they also gave the panel has clear authority to police campaign finance violations by all candidates.
The next move is up to Maricopa County Superior Court Judge Dawn Bergin. She has scheduled a hearing on Friday.
Even if Horne succeeds in convincing her — and, in all likelihood, appellate judges — the commission's authority is limited, he is not out of the political woods. Even La Sota concedes the Secretary of State's Office does have authority to review complaints like the one filed by former Horne staffer Sarah Beattie.
But Collins pointed out that inquiry can only lead to a recommendation to pursue a full-blown probe, a recommendation that, by law, goes to the Attorney General's Office.
While a Horne aide is virtually certain to farm that out to a county attorney, presumably a Republican, that still leaves the possibility of political mischief: GOP elected officials are deciding whether to line up behind Horne's reelection bid or support a primary challenge by Mark Brnovich.
And there's another factor at work. The maximum penalty that can be levied through an investigation that starts with the Secretary of State's Office is a fine equal to three times the amount of money misspent. By contrast, the commission, should it fine Horne violated the law, also has the option of tossing him from office.
Central to the issue is Beattie's complaint that she and others within Horne's office, including Horne himself, routinely did work on his bid for a second term as attorney general. Those allegations, if true, would mean that Horne used public resources for expenses that should have been done with campaign dollars.
La Sota, in his lawsuit, calls Beattie's complaint “completely without merit,” and he said even if something she said is truthful, the conduct is “water cooler talk (about the campaign) that occurs in any office.”
La Sota is hoping to short-circuit the Clean Elections probe before he has to prove any of that.
He said state election law gives exclusive authority to investigate campaign finance laws to the Secretary of State's Office. And La Sota said the commission's sole power — including removal from office — is only over those who have agreed to live within the laws that govern those who have taken public funds.
“That's not what the act says,” Collins responded. “He is taking a sentence out of the act, taking it out of context, and twisting it around to say something it doesn't say.”
La Sota, however, said reading the law as Collins does suggests that voters wanted to let the commission impose what he calls the “death penalty” on candidates and elected officials who never took public funds “yet not be vested with any lesser penalties.”
But Collins said La Sota is wrong. He said the panel can conclude that violators of the law need not be tossed off the ballot or forfeit office but instead be subject solely to fines.
Collins said there's another reason the commission has parallel authority with the Secretary of State's Office to investigate campaign finance allegations. He said the commission has “tools” to expedite its investigation, including the ability to subpoena documents and compel testimony under oath.
Beattie's allegations are separate from a separate investigation done by Yavapai County Attorney Sheila Polk.
She concluded that Horne illegally coordinated spending on his 2010 campaign with what was supposed to be an independent expenditure committee run by Kathleen Winn, who now works for him. And Polke ordered him to refund more than $400,000 she said was illegally collected and spent on his behalf.
Horne has appealed that decision to Maricopa County Superior Court Judge Crane McClennen.