The question of whether voters get to repeal public financing of elections could depend on whether a judge thinks the plan hides the fact it would take money from Tucson taxpayers.
Judge Dean Fink told lawyers on Monday he has no problem with a single ballot measure to wipe out both the 1998 law allowing candidates for statewide and legislative office to get public funds as well as a Tucson law that provides matching dollars to eligible local contenders. He appeared to reject arguments by supporters of the Citizens Clean Elections Act that it violates a ban on putting multiple subjects into a single constitutional amendment for voter to approve.
But Fink said what is giving him legal heartburn are provisions that say any money left in either fund would go to the state.
He said it’s one thing to have leftover cash from the state program go to support other state functions.
“But I am concerned with this concept ... of local taxpayer funds that were designated for one purpose now becoming part of the state’s general fund, potentially being removed from their control,’’ Fink said.
Clint Bolick, an attorney for the Goldwater Institute, which hopes to kill public funding of all types of elections, defended the language.
He pointed out that Tucson, like all cities, gets state aid. And Bolick said this could simply be considered the state taking back some of what it gave in the first place.
Bolick also argued that the city could “turn of the spigot’’ of its public funding of candidates if and when the ballot measure passes, leaving nothing for the state to seize.
But Dennis McLaughlin, an assistant city attorney, said Tucson is required to set aside funds ahead of time for future elections. And he said once that has been done, the plain wording of the measure the Republican-controlled Legislature put on the ballot lets anything set aside be taken.
The amount could be significant. It ranges from $200,000 to $400,000 a year, depending on whether there is an election coming up.
Hanging in the balance is a 1998 voter-approved program that allows — but does not require — candidates to get public dollars if they agree not to take private funds. Dubbed the “Citizens Clean Elections Act,’’ proponents billed it as an alternative to candidates being dependent on special interests to finance their races.
A majority of the cash comes from a 10 percent surcharge on civil, criminal and traffic fines. But the law also allows Arizonans to make donations and then get a dollar-for-dollar credit on their state income taxes, effectively reducing the money that would otherwise go to running state government.
Various efforts to kill the measure, usually by business-backed interests, have faltered.
This measure would add a provision to the Arizona Constitution making it illegal to collect or spend public funds to support candidates for public office. That same measure also would make it illegal for any government agency to raise revenues for candidate races through any tax, fee or surcharge.
But nowhere in the proposal does it use the words “clean elections.’’ Instead, it asks voter to approve a measure that lawmakers, all foes of the current system, dubbed the “Stop Public Money for Political Candidates’ Campaign Act.’’
Attorney James Ahlers told Fink all of that was done deliberately, calling the measure “the poster child for opaqueness.’’
“The measure goes out of its way not to use the words ‘Clean Elections’ anywhere or explain that it would repeal most of the voter-initiated Clean Election Act,’’ he said. Nor does it mention anywhere that it would kill Tucson’s similar system or “sweep’’ the city’s money into the state general fund.
Former state Sen. Jonathan Paton, a Tucson Republican who has been at the forefront of the latest bids to kill public funding, defended not pointing out to voters the name of the program that would be killed.
“I think we’re being more honest than the so-called Clean Elections system ever was,’’ he argued.
“We’re saying exactly what Clean Elections does,’’ Paton continued, meaning providing public funding for political candidates.
Fink appeared unconcerned with the labeling of the measure, saying his ruling will be based on whether killing both programs and sweeping both funds with a single vote violates the “single subject rule’’ of the Arizona Constitution. He gave no indication of when he will decide.
Paton, who was at Monday’s hearing, said it will not matter even if Fink declares the measure illegal and the appellate courts agree. He pointed out the Legislature meets again this coming January, giving lawmakers a chance to recraft the measure to meet any legal objections.
He also said he also sees nothing wrong with having a statewide initiative with one of its purposes being to specifically kill Tucson’s public funding system.
“This is a fundamental constitutional issue: Do you believe that funds within the state and its subdivisions should be used to pay for junk mail and yard signs?’’ he said.
Paton said it could have been handled locally. But he said that the Tucson City Council, which could place the measure on the local ballot, has so far refused to do so.
He conceded, though, that foes of Tucson’s system have another option: gather enough signatures for a local initiative. But he said there was a good reason for not doing that.
“It costs a lot of money, just like all ballot measures,’’ Paton said.