The regulation of political activity in Arizona took a contentious turn over the summer of 2015. What began as a disputed fine levied against an independent group known as the Legacy Foundation Action Fund after the 2014 gubernatorial election, now pits two prominent regulatory agencies against each other in a battle over the regulation of independent expenditures and the groups who run them. The ad in question focused its criticism on the U.S. Conference of Mayors and its president, Scott Smith. Though the ad ran in multiple states across the country, its message proved especially relevant for Arizonans who were considering Scott Smith, then the mayor of Mesa, AZ, as a candidate for governor in the Republican Primary. Shortly after the election, the Citizens Clean Elections Commission determined the ad constituted an “independent expenditure” advocating for the defeat of Scott Smith and imposed a $95k fine on the Foundation for failing to disclose their spending as a campaign expense.
For background, the Citizens Clean Election Commission is a group created by a 1998 ballot initiative known as the Clean Elections Act. The commission’s stated goal is to “ensure every Arizona citizen the opportunity to run for office” by providing education materials to inform the electorate and administering public funds to candidates in need. By creating a level playing field, the Commission hopes Arizonans will develop greater confidence in the state’s political process and the resultant integrity of the elected government. The Commission’s authority, as they explain, includes both rule-making and the enforcement of Arizona statutes.
The latter authority now forms the basis of the current dispute. Arizona’s Secretary of State, Michele Reagan, filed a motion to intervene in the litigation to protest the Citizen Clean Election’s authority to regulate independent expenditures by outside groups prior to an election. As the Secretary’s brief explains—“Secretary Reagan seeks to intervene to prevent the [Commission] from usurping the Secretary of State’s statutory authority over independent expenditures, and to prevent the unconstitutional regulation of issue advertising in conflict with the Secretary’s statutory authority.” Importantly, to further highlight the significance of the dispute, the Secretary disagrees that the Legacy’s ad meets the requirements of an independent expenditure.