Saying they have jurisdiction, members of the Citizens Clean Elections Commission refused Thursday to kill an investigation into whether a commercial aimed at Scott Smith was really designed to undermine his gubernatorial bid.
Attorney Jason Torchinsky argued to commissioners that the ad, produced and paid for by the Legacy Foundation Action Fund, was simply a bid to educate voters — and Mesa residents in particular — the positions taken by the U.S. Conference of Mayors on controversial issues. Smith had been the organization's president.
He said the fact that the commercial ran in March and April — long before early voting for the Republican primary started Thursday — shows it was not aimed at convincing people how to vote.
Thomas Collins, the commission's executive director, acknowledged the commercial never expressly told viewers how to mark their ballots, but he said the ad, which depicted Smith and the mayors' group agreeing with President Obama on things like the Affordable Care Act, gun control and climate change, clearly was designed to influence voters.
“This advertisement in context has no meaning other than to advocate against Smith for governor,” he told commissioners at their Thursday meeting. “Other possible meanings are not reasonable.”
Thursday's decision by the commission does not end the matter.
The commission still has not voted specifically to agree with Collins. Such a vote would require the organization to disclose who funded the commercial. The panel also deferred action on the related question of whether the commercial was illegally coordinated with Doug Ducey's own gubernatorial campaign.
There is evidence that one person who did work for Ducey also did work for Legacy, though Ducey's lawyer said it was not on this commercial. If the commission finds there was coordination, that makes any funds spent on the commercial a contribution to Ducey that not only has to be reported but also is subject to dollar limits.
The entire issue, however, could become moot.
The Legacy Foundation has filed suit in Maricopa County Superior Court asking a judge to rule that any effort by the commission to declare the commercial to be campaign related is illegal. A hearing on that is set for next week in front of Judge David Cunanan.
The commercial at the center of the legal fight opens with the text, “Obama's Favorite Mayor Scott Smith,” going on to point out his position with the Conference of Mayors. It then lists the support for “Obamacare,” “cap and trade” pollution credits and backing “the president's proposal to limit our Second Amendment rights.” There also are several images of Smith on the screen placed next to photos of a smiling Obama, and one with him shaking hands with Vice President Joe Biden.
It ends with words on the screen “Tell Scott Smith (Obama's Favorite Mayor) the U.S. Conference of Mayors should support policies that are good for Mesa.” And it has the phone number of Smith's mayoral office.
Torchinsky said none of this made the commercial an effort to affect the election.
Commission member Thomas Koester was skeptical.
“Why was all this money spent against Mayor Smith?” he asked. “It still bothers me.”
But Torchinsky said all that is legally irrelevant. He said the only test is what is actually in the commercial, not the motive or intent of those behind it.
Torchinsky said while the timing may have coincided with when Smith was resigning as mayor to launch his gubernatorial campaign, that still does not make the commercial campaign related. He said it stopped airing months before early voting started, though it remains available on his client's web site.
There's a separate legal issue on the question of whether the commission can look at the question about coordination of that commercial with the Ducey campaign.
Attorney Mike Liburdi who represents Ducey contends the commission has jurisdiction only in cases where candidates accept public funding. But both Ducey and Smith, whose attorney filed the complaint of illegal coordination, are running with private dollars.
Collins and the commission have taken the position that the 1998 voter-approved law creating the commission and setting up optional public funding gives them the power to enforce virtually any election law.