Tales from the Dark Side

“Dark money” was one of the watch words of the 2014 election as groups with anonymous contributors spent millions of dollars influencing races for Congress, governor, secretary of state and other offices.

In the wake of the Supreme Court’s Citizens United decision, these dark-money groups—such as the Arizona Free Enterprise Club, Karl Rove’s Crossroads GPS and the Koch brothers-backed 60 Plus Association—operated as nonprofit entities that don’t have to disclose contributors and thus sidestepped the reporting requirements that traditional political committees have long followed as part of state and federal law.

Now the Arizona Clean Elections Commission is considering new rules that would require more disclosure of both expenditures and contributors—but Arizona Secretary of State Michele Reagan wants to shut down the effort.

Reagan says she’s the state’s chief elections officer and the Clean Election Commission is overstepping its bounds.

After the Clean Elections Commission voted earlier this month to seek public comment on a new rule that would set new standards on the definition of a political committee, Reagan posted a statement on her website calling the commission’s proposal a “brazen power grab” and expressing hope that commissioners would “withdraw this dangerous and ill-conceived proposal.”

Along with that assertion, Reagan’s staff posted an online survey that asked: “Should the Citizens Clean Elections Commission broaden its mission to regulate campaign finance?”

It’s not entirely clear what sort of response Reagan wanted from the poll, but the results quickly started leaning in Clean Elections’ corner. About 70 percent of respondents said they liked the idea of allowing the agency to expand its authority. A day later, it swung closer to 50-50, and then a few days later, roughly 80 percent of respondents said they wanted Clean Elections to dig deeper into campaign-finance matters.

As the numbers climbed increasingly in favor of Clean Elections’ proposed enforcement activities, the poll question changed to: “Should Arizona legalize marijuana?” (FWIW: As of Monday night, the results were running 78 percent in favor of recreational weed.)

Secretary of state spokesman Matt Roberts downplayed the significance of a “silly poll that … we don’t make it scientific at all.” He told the Weekly that while desktop and laptop users were blocked from voting more than once every 24 hours, people using mobile devices could vote as often as they wanted.

“If you did from your phone, you could keep voting, like over and over and over again,” Roberts said. As a result, a few people voted numerous times to skew the results.

And Roberts added that the staff didn’t change the question to legalizing weed because the voting wasn’t going Reagan’s way; he said the poll regularly rotates and a staffer happened to pick the weed topic because she had gone to a meeting related to a proposed 2016 ballot initiative to legalize recreational marijuana.

The poll incident aside, the real battle here is over whether some of the dark-money groups spending money to influence elections will have to register as political committees and reveal their contributors.

The legal question is complicated, but it revolves around a state statute that has a vague meaning: A group has to register as a political committee and file finance reports if its “primary purpose” is influencing an election. The Clean Elections Commission is attempting to set guidelines for determining the “primary purpose” of a group.

Clean Elections Commission Executive Director Tom Collins said as the commission reviewed the way groups spent money during the 2014 campaign season, “there wasn’t really good guidance on defining ‘primary purpose’ of these entities and if the primary purpose is to be involved in politics, they’re supposed to be filing, at a minimum, expenditure reports.”

Collins said the commission was attempting to “set the rules of the road” ahead of the 2016 election so groups that get involved in political activity would be clear on the disclosure requirements.

But Roberts said Reagan believes the Clean Elections Commission has no legal standing to get involved in the business of regulating political committees.

“We feel it’s an over-step of their statuary authority and outside the bounds of what voters intended them to do,” Roberts said. “They’re going beyond their mission to try to regulate something that the secretary of state is given the authority to do.”

Collins said that the Clean Elections Commission does have legal authority to establish the new rules.

“The secretary of state is categorically wrong on that point because this rule is on the books,” Collins said. “It is not a new rule. We are examining a rule that that is on the books and currently enforced by the Clean Elections Commission.”

Roberts said Reagan would be weighing in during the 60-day comment period and could eventually take the matter to court, depending on the rules the commission eventually adopts.

But in an interview last week, Roberts toned down some of the rhetoric against the Clean Elections Commission.

“We have a great relationship with Clean Elections,” Roberts said. “We have several projects ongoing with them. We just have a disagreement on this particular issue.”

The harsh language in Reagan’s earlier statement, Roberts said, arose over concerns that “over the last couple of years, Clean Elections has made a consistent effort to get outside what their mission is. Enough is enough. The secretary felt very strongly about another institution, as we used the word, usurping her authority on something she takes very seriously as the chief elections officer.”

If you’d like to comment on the Clean Election Commission’s proposed rules on political committees, visit azcleanelections.gov.

This article appears in May 28 – Jun 3, 2015.