A bid by Attorney General Tom Horne to escape campaign finance charges could upend all state laws limiting how much candidates can take.
Horne contends Maricopa County Attorney Bill Montgomery has no jurisdiction to charge that he illegally coordinated his 2010 election effort with what was supposed to be an independent campaign finance committee. His attorney, Michael Kimerer, told Maricopa County Superior Court Judge John Rea on Wednesday the complaint against Horne by Secretary of State Ken Bennett of an election law violation is required by statute to be referred to the Attorney General's Office.
At that point, Kimerer said, it would be up to Horne to conclude if he has a conflict of interest. Kimerer said he presumes that would be the case. But he said it is then Horne who gets to decide to whom to farm out the issue.
But Kimerer has a backup plan for his client: He also wants Rea to declare the statute limiting how much candidates can accept violated Horne's First Amendment rights because those limits are too low. If Rea agrees, that means the $840 limit on contributions from any one source that governed the 2010 campaign never existed.
That means it would not legally matter if Horne did coordinate with the committee run by Kathleen Winn on how she spent $513,340 for a last-minute television commercial on his behalf because he would be legally able to accept the money himself as a campaign donation.
More significant, a declaration the limits are unconstitutional means there are effectively no limits on how much all candidates can accept.
Horne has an unusual ally in his corner on this issue: Montgomery himself testified at the Legislature earlier this year he believes the current limits are "unconstitutionally low.''
State lawmakers responded by boosting those limits for future elections, in some cases by eightfold.
But the Citizens Clean Elections Commission is weighing a challenge because the measure did not get the three-fourths margin the commission claims is necessary to make that change. A successful challenge by the commission would leave only the current law -- the one Horne now is trying to void.
The issue stems from the 2010 race between Horne and Democrat Felecia Rotellini. Winn, who was part of Horne's campaign team for the GOP primary, formed Business Leaders for Arizona ahead of the general election.
With Horne facing last-minute attack ads funded by the Democratic Attorney General's Association, Winn bought a television commercial.
While the law allows independent campaign committees and they have no spending limits, Montgomery said an FBI inquiry found there had been illegal coordination between Horne and Winn's committee. Montgomery sent his findings to Bennett as the state's chief elections officer.
It's what happened then that is at issue.
Kimerer and Tim LaSota, who represents Winn, said state law requires Bennett to refer campaign finance allegations to the Attorney General's Office.
They said that makes the case Montgomery brought against Horne and Winn illegal. And they want Rea to halt the hearing scheduled for next week where an administrative law judge will consider whether the pair broke the law.
If found guilty, the penalty is a fine equal to three times the illegal contribution.
Deputy County Attorney Michael McVey told Rea that makes no sense, arguing various legal theories of how Bennett was entitled to give the case to Montgomery.
Rea agreed -- to a point.
"It's hard to argue that in this case the attorney general doesn't have about 1.5 million in substantial interests,'' the judge said, referring to the possible fine.
But Rea said the law appears to be clear, though he did not issue a ruling Wednesday.
The judge did say, though, he needs to look at the contention there is no basis for a charge in the first place because of those campaign finance limits.
Kimerer claims Horne was running 12 points ahead of Rotellini before the Democratic attack ads. Those ads, Kimerer said, cost his client two-thirds of that lead but that Horne had limited funds what with that $840 cap.
"With those limits, he could not effectively respond to this devastating independent campaign against him, and his First Amendment rights were therefore violated,'' Kimerer told Rea.
Kimerer pointed to a 2006 U.S. Supreme Court decision which struck down Vermont's $200 campaign finance limit on individual donors. And Justice Stephen Breyer specifically mentioned Arizona's limit -- then $760 -- as one of the seven lowest in the entire country, a mention Kimerer said makes it also ripe for Supreme Court review.
The Arizona law adopted earlier this year, the one pushed by Montgomery, removes all restrictions on how much any individual or political action committee can spend to influence elections. It also sharply increases how much donors can give to any one candidate and eliminates limits on how much candidates can accept from all sources.
It does not affect the amount available to candidates who use public funds for their campaigns. But Todd Lang, director of the Citizens Clean Elections Commission, said the laws on public and private financing are intertwined, and a change in one affects the other.
He pointed out public financing was approved by voters in 1998. And the Arizona Constitution allows alterations to voter-enacted laws only with a three-fourths vote of both the House and Senate, something this measure did not get.