A good day for the First Amendment

Glenn Hamer

August 21, 2015

A broad cross-section of Arizona’s business community banded together yesterday to oppose efforts by the Citizens Clean Elections Commission to expand its jurisdiction to regulate the election activities of Arizona’s citizens and businesses. The coalition included chambers of commerce from across the state, and associations representing industries ranging from health care, to real estate and development, to agribusiness. The united front of the state’s business leaders sent a powerful message that we will stand strong for free speech.

Here’s the fundamental issue: The state’s chief elections officer, the secretary of state, is already in charge of regulating the election activities of these groups.

We don’t need two sheriffs in town. Overlapping regulations by multiple agencies will not only create bureaucratic headaches, but will stifle constitutionally protected free speech. AnArizona Republic editorial’s headline on this topic says it all: Candidates and committees shouldn’t have to face double jeopardy of investigations. But, I would go one step further: individuals and companies should not have to hire an attorney just to exercise their right to free speech.

In existence for about 15 years, the Commission to date has had no reason to encroach upon the secretary of state’s mandate. In the face of a U.S. Supreme Court decision that has diminished the breadth of its impact in campaigns, the Commission should stick to strengthening its established activities that are sure to survive legal scrutiny, not invite litigation.

The business community is not alone in its opposition. Secretary of State Michele Reagan, who has been vigorously opposing the Commission’s overreach, made clear at yesterday’s hearing that the Commission has no such legal power. While she acknowledged the noble intentions of the Commission, she emphasized that the power to enforce campaign finance laws rests solely with her office. She welcomed the Commission to work with her office, but warned that a lawsuit was still a viable option in the event the Commission moves forward.

The Office of Attorney General Mark Brnovich is also opposed to this attempted expansion of jurisdiction. A representative for the attorney general encouraged the Commission not to move forward with any new rules.

Arizona’s election statutes are not without their flaws. Unlike federal law, which correctly excludes issue advocacy from election-related speech, Arizona law treats issue advocacy as an extension of lobbying. This has the effect of targeting the basic legislative work of our state’s established trade groups and chambers. But this fundamental flaw in our state law does not give the Commission license to expand its jurisdiction.

To their credit, the commissioners and the Commission’s executive director, Tom Collins, now appear to realize how big a deal this proposed jurisdictional expansion could be. To that end, they have circulated for a 60-day public comment period a proposal designed to address some of the concerns expressed by the business community and others. While the business community strongly contests the Commission’s claimed enforcement ability, it is a positive sign that it is at least soliciting the public’s feedback.

As one commissioner noted at yesterday’s hearing, there is no rush to pass new regulations, as the next election is not until November 2016. That’s true. But it is never a good time to pass duplicative regulations that chill free speech. I earnestly hope that the Commission uses this 60-day comment period to examine how it can best harmonize election law and work with the secretary of state, not encroach into an area in which it does not belong at all. 

 

The Arizona Chamber of Commerce and Industry is committed to advancing Arizona’s competitive position in the global economy by advocating free-market policies that stimulate economic growth and prosperity for all Arizonans. http://www.azchamber.com/.