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 The Move To 'Clean Government' Raises Some Dirty Constitutional Questions. By Emil Franzi
Comes the Revolution, things will be different. Not better, just different. LAST NOVEMBER, Arizona voters narrowly passed Proposition 200, the so-called Clean Elections Proposal, over surprisingly minimal opposition. Ironically, while publicly attacking "dirty money," Prop 200 supporters were funded by almost a million dollars worth of out-of-state cash. Apparently one person's special interest is someone else's noble cause.
Part of the new law sets up a five-member Clean Government Commission to administer the program, make rules for candidates running for state offices, and spend and allocate millions of dollars annually received from several sources, including a 10 percent surcharge on all criminal fines and civil penalties. Clean Government commissioners will each receive $200 per meeting day, plus expenses. They'll be able to spend 10 percent of the millions they'll collect on administration and staff, and another 10 percent on "education." In one of the most convoluted selection processes imaginable, the five Clean Government commissioners are to be selected by five different state officers, no more than three of whom can be members of the same political party. Gov. Jane Dee Hull, Secretary of State Betsey Bayless, Attorney General Janet Napolitano, State Treasurer Carol Springer and Supreme Court Justice Stanley Feldman will each make one selection. They'll be doing so from five "slates" of three candidates each. The slates will be drawn up, from a general list of applicants, and given to each state officer by the state Commission on Appellate Courts. The Governor will make her selection first, and then pass the remaining slates to the next officer, and so on down the line. And we don't even want to ask what the process will be should one of the Clean Government commissioners croak. Much of the section process was dumped on the Appellate Court Commission members. It's a job they neither sought nor desired. They were charged with coming up with everything from the application for appointment to the actual construction of the five candidate slates called for in the statute. They were also stuck with addressing the numerous ambiguities in the new law. Staff attorneys to the state court system tried to resolve the problems as they went along. For example, there's a provision that no more than two of the five Clean Government appointees may be members of the same political party. There's another provision that one commissioner must have been registered in the same party for at least five years before appointment, yet there's no provision that a commissioner must be a resident of Arizona for that long. So how can you be registered in a political party for five years if you came here more recently from a state in which there is no partisan voter registration? Or, what if your political party simply hasn't been around for five years? Not everyone is pleased with the manner in which Arizona Supreme Court Chief Justice Thomas Zlaket and the Appellate Court Commission handled the process. One congressman has even accused the Appellate Commission of offering slates that were "unbalanced, partisan and fundamentally unfair." Phoenix Republican John Shadegg further accused the Appellate Commission of being "tainted" by political manipulation. One Appellate Commission member, Henry Vargas of Kingman, responded that Appellate commissioners handled things as well as possible, adding the ambiguous proposal was "poorly written." Quirks like these, obviously overlooked by those who drafted the new law, raise serious constitutional questions. The state court system's staff has responded that it's not their role to judge the constitutionality of the Clean Government statute--you want that done, file suit. They'll simply pass on what they believe the voters approved. Another problem is the definition of "public officer." Prop 200's proponents apparently suffered from paranoia when it comes to people who even half-heartedly attempted to participate in government. Anyone who ever ran for or held any "public office" in the last five years, including a rinky-dink political party office such as precinct committee person, is disqualified as a Clean Government commissioner. This ban also includes members of appointed boards and commissions and some public employees. But which public employees? Court system staffers have made a stab at answering this one, although the Supreme Court itself will no doubt be asked for further clarification. Only 33 people applied for these five Clean Government positions. (The application cut-off date was January 14, 1999.) Lack of publicity was no doubt a contributing factor, but the application itself would tend to turn off all but the most dedicated policy wonk--or the most self-righteous. The application was, to put it mildly, all-encompassing. Besides the usual information like employment and education, applicants were asked to list all professional, public, political and community service activities, honors, prizes and other forms of recognition for at least the last five years, including any and all offices held. Other questions were also incredibly broad. Were they asked of a normal job-seeker, some of the ACLU-type lawyers who drew up the Clean Government law would be screaming "discrimination." For example:
THE APPELLATE COURT Commission met on February 16 to make appointments--giving themselves more time to review applications than they gave the public to apply. The meeting took most of the day and the Commission members heard from several of the applicants, although they chose not to interview any of them. Another self-appointed group tried to do that tedious job for them, apparently with some success. Only 11 of the 16 members of the Appellate Court Commission chose to participate. No one is quite clear on why this body was chosen to administer the new law, including Clean Government folks who appeared at the hearing. They have an annoying habit of referring such questions to attorneys who aren't present. The meeting wasn't exactly made public knowledge, and those being considered for appointment were not even notified of its time and place. "It's like they didn't really want us to know, or felt like we wouldn't be needed, which lends further credibility to the arguments that the whole operation was a Star Chamber process from the beginning," says applicant Joyce Downey, a Phoenix Republican who didn't make the cut. Those who drew up Prop 200--the coalition of political science profs, liberal lawyers and League of Women Voters types--have formed the Clean Elections Institute to make sure the ideals they espouse will be carried out. The Institute's executive director, Sharlene Bozack, announced to the Appellate Commission that Institute heavies had interviewed the applicants and had their own ideas about who should be on which slate. By the time the Commission adjourned about 3 p.m. that afternoon, most of what the Institute presented had been approved--which caused Phoenix area GOP Congressman John Shadegg to go ballistic. Shadegg issued a statement blasting the Commission for being tainted by political manipulation. His contention was based on the results--most of the Republicans who applied were dinged; of the 15 names passed on to the appointing powers, nine were Democrats and one was a Green. Shadegg was also unhappy with the high proportion of former and present government employees, which he totaled at 10, and former or present college profs, which he scored as five. Chief Justice Zlaket took issue with Shadegg and counter-attacked by blasting his motives. He said the Commission had a difficult time trying to build slates that complied with the letter and spirit of the new law. One Appellate commissioner stated the real problem was in the lack of qualified applicants, coupled with a poorly written law. While Shadegg may have overstated his critique, it's obvious that in attempting to comply with the spirit of the law, the Appellate Commission definitely leaned to interpretations favored by Prop 200's proponents. Downey was rejected by the Appellate Commission on a 4-7 vote. The note next to her name on the tally sheet of one commissioner reads, "Too political." Downey, who was otherwise qualified to serve, has a long track record of working for GOP candidates and conservative causes. Conversely, Tucsonan Claudia Ellquist, a well-known feminist and Green Party activist who led recall efforts against former GOP Supervisor Ed Moore and former Democratic County Assessor Alan Lang, was placed on one of the slates. Apparently Zlaket's supposedly impartial crew considered Ellquist's brand of political involvement more appropriate and in keeping with the "spirit" of the law than Downey's. That Downey was an opponent of Prop 200 may have been part of their decision, too. Ellquist will be the only Pima County resident and the only non-Republican or Democrat on the fifth slate submitted to State Treasurer Carol Springer. In fact, Ellquist may well be the only eligible appointee left by the time Springer gets to "choose," making her appointment automatic. The five slates have been forwarded to the five appropriate officials who have 30 days to make their picks. A lawsuit, fronted by the Arizona Chamber of Commerce, has been filed challenging the constitutionality of several portions of the new law. Justice Charles Jones denied plaintiffs a temporary restraining order to prevent the appointments from proceeding, and Hull went ahead with her choice: Gene Lemon, a Maricopa County Republican and retired business executive who opposed Prop 200. The next day, Napolitano appointed ASU professor Ruth Jones. Other appointments are expected shortly. Perhaps the looming court battle will help clarify some of the grosser ambiguities present in Prop 200 and force the makers to justify some of their ideological rigidity, as well as their disqualification of certain people from participation. Why must you be a member of a political party for five years? Why are you disqualified from serving if you were once appointed as a "public officer?" Furthermore, is adding these interpretive and selection responsibilities to the Appellate Court system an abuse of our constitutionally mandated separation of powers? Is it constitutional to require, as the new law does, that all financial contributors to state political campaigns be registered voters? Can you prohibit paying folks from soliciting contributions? And while the Commission members are being selected and the court case progresses, the accumulation of public funds in the coffers of the Clean Government Commission will continue, as will the ever-expanding activities of the Clean Elections Institute, whose members are currently planning to issue a handbook on how this all works, as well as several legal "clarifications."
Meanwhile, we're told, the Clean Elections Institute has already
filled a position essential to every sleazy special interest group
in America--yep, they've hired a lobbyist.
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For the record, The Weekly vociferously opposed Prop 200.
We saw it as a classic case of making a bad situation--current
campaign finance law--even worse with a scheme that trades the
perceived tyranny of lobbyists' checkbooks for the even scarier
tyranny of the academic mandarin.
