Tom Horne

Attorney General Tom Horne.

Howard Fischer/Capitol Media Services

A lawyer for a Democratic attorneys general group told the state Court of Appeals Tuesday that organizations have a constitutional right to run what amounts to anonymous “hit pieces” on candidates right before an election.

Tom Irvine acknowledged the commercial at issue said in effect that Tom Horne, then state school superintendent, was not protecting children from molesters. It aired just weeks before he faced off in the 2010 general election for attorney general against Democrat Felecia Rotellini.

But Irvine told the judges the ad was not subject to financial disclosure laws because it never used the specific words like “vote against” or “oppose.” That, he argued, means his client had a constitutional right to keep its funding secret despite state laws to the contrary.

If the appellate court agrees, that would allow any group to anonymously run any last-minute commercial blasting a candidate — and spend as much as it wants — as long as the ad never specifically told viewer and listeners how they should vote. Colleen Connor, representing Secretary of State Ken Bennett, said that would effectively gut the disclosure laws and leave voters wondering exactly who is trying to influence campaigns.

The ad in question which ran weeks before the election said:

- When he was a legislator, Horne voted against tougher penalties for statutory rape.

- As superintendent and a member of the state Board of Education he voted to let a teacher back in the classroom who was caught viewing 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, which Horne won, Maricopa County Attorney Bill Montgomery ordered the Committee for Justice and Fairness to disclose its source of funds. Irvine got a trial judge to rule the ad was exempt because it was “issue-oriented speech,” not “express advocacy.”

That conclusion drew questions Tuesday from appellate Judge Patricia Orozco.

“I mean, look at it,” Orozco continued. “It's done two weeks; two weeks before the campaign.”

And she said the commercial ran just 2 1/2 months before Horne would no longer be superintendent — and could no longer take actions like the ones for which he was being criticized.

“For all intents and purposes, he's a lame duck,” Orozco said.

Irvine said the committee, later learned to be funded by the Democratic Attorneys General Association, has an absolute right to tell Arizonans about Horne's record, even if one of the incidents occurred a decade before when he was a legislator.

“The fact that it has an impact on an election does not matter,” he said.

Connor, in essence, is trying to get the appellate court to uphold the constitutionality of the reporting requirements.

Irvine is not disputing that ads with certain “magic words” like “vote for” or “support” are covered by campaign finance laws. But the case against his client is based on the second half of the law which also says disclosure is necessary if the ad “in context, can have no reasonable meaning other than to advocate the election or defeat of one or more clearly identified candidates.”

He said — and a trial judge approved — that is unconstitutionally vague, and Irvine argued there is a right of people to make such anonymous statements.

Judge Lawrence Winthrop told Irvine he understands that someone who is making statements has certain First Amendment rights.

“Doesn't the First Amendment also create some rights in a listener?” Winthrop asked. “And isn't part of First Amendment rights enjoyed by listeners to understand the source of the speech that's being proposed in the context it's being offered?”

“Absolutely not,” Irvine responded.

He said that argument, taken to its extreme, would require anybody who talks about politics to first register with the federal government and file reports. Similarly, he said no one has a right to know if someone is paying him, as an attorney, to make certain statements.

Connor conceded there are multiple court rulings spelling out First Amendment rights of those who want to speak. But she also said that courts have upheld regulations if there is a “sufficiently important governmental interest” that's related to a requirement for disclosure.

“Here the important governmental interest is to make sure the voters know who the speakers are, who's paying for these ads,” she said. Otherwise, Connor said, groups would be able to hide behind "clever political names'' that leave voters unaware an innocuous sounding group — in this case the Committee for Justice and Fairness — is actually backed by elected attorneys general from outside the state.

The commercial has had ripple effects beyond the question of what can be claimed in anonymous ads.

It was that commercial which led to Kathleen Winn, heading what was billed as an independent committee supporting Horne, to collect and spend more than $500,000 on a last-minute response. But Yavapai County Attorney Sheila Polk said last year the evidence she has seen leads her to conclude that Winn was not acting independently of Horne. That, she said, means both violated other laws which limit how much money candidates can take from any one source.

Both Horne and Winn are fighting the charges, with a hearing set for next month before an administrative law judge.

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