PHOENIX (CN) — Arizona legislative leaders appeared before the state court of appeals Tuesday to challenge a voter-backed campaign finance disclosure law they say violates the state constitution.
Senate President Warren Petersen of Gilbert and House Speaker Ben Toma of Peoria, both Republicans, say Proposition 211 — or the Voters Right to Know Act — takes rulemaking authority away from the Legislature and over-delegates that authority to Arizona Citizens Clean Elections Commission, an agency of the executive branch.
Proposition 211 was supported by more than 70% of voters in the 2022 general election and requires any person or organization making campaign media expenditures of more than $50,000 to statewide elections or $25,000 to local elections to disclose the original source of any contributions totaling more than $5,000.
The statute places sole rulemaking and enforcement authority in the hands of the commission.
Delegating rulemaking and enforcement to executive agencies is nothing new, but the Legislature usually has the power to alter or revoke that delegation. But the Legislature cannot amend statutes that were voted into place through ballot initiatives.
The legislators sued the state and the Clean Elections Commission in August, nearly nine months after the law took effect, claiming violations of the separation of powers doctrine and the nondelegation doctrine. Maricopa County Superior Court Judge Timothy Ryan dismissed the challenge on summary judgment in December, and the plaintiffs appealed soon after.
In an appeal hearing Tuesday morning, the appellants took issue with two provisions of the statute. ARS 974(A) gives the commission the power to adopt rules, initiate enforcement actions, impose penalties and “perform any other act that may assist in implementing this chapter,” among other things. ARS 974(D) makes clear that those rules and enforcement actions are “not subject to the approval of or any prohibition or limit imposed by any other executive or legislative governmental body or official.”
Brett Johnson, attorney for the legislators, said Tuesday the two provisions, especially the vagueness of the last line in 974(A), box the Legislature out and give the commission “unlimited, unchecked power to adopt legislative rules that are not tied directly to the statute.”
“Just because the people voted for something of that nature doesn’t make it constitutional,” Johnson said. “The Legislature has the power to stand up and say that’s not an appropriate delegation by the people. Would the Legislature have to stand by if the people wanted to reinstitute slavery?”
Clean Elections Commission attorney Eric Fraser said the statute doesn’t give the commission unlimited power because “textualism is not literalism.”
He used an analogy of hiring a babysitter for an evening. Telling the sitter to do “whatever the kids want to do” clearly doesn’t include getting on a plane and going to Disney World, because those enforcing and following the statutes know how to reasonably interpret them, Fraser said.
“Permissiveness is not a constitutional issue,” he added.
Fraser said the statute can’t be struck down in its entirety because it isn’t unconstitutional on its face, and can be implemented in legal ways. He said it doesn’t take the power to create new laws away from the Legislature — it only prevents smaller bodies like the legislative rules oversight committee from prohibiting or limiting rules and enforcement actions implemented by the Clean Elections Commission.
Arizona Court of Appeals Judge James Morse said in the hearing that because the term “legislative governmental body” in 974(D) encompasses the Legislature as a whole, it can be read to say that the Legislature has no power to do its job.
Fraser countered that context matters. If the people intended to strip the Legislature of its power, he said, that line would have been much higher up in the statute, rather than buried under a section about rules and procedures.
Nathan Arrowsmith, representing Arizona Attorney General Kris Mayes, said the challenge is moot because the appellants haven’t suffered any injury.
To establish ripeness of an actual injury, he said, the Legislature would have to try to pass a bill that would be barred by the statute at hand. Otherwise, he said, the statute isn’t preventing legislation, but rather preventing action on rules and procedures, which the Legislature typically doesn’t do anyway. It could pass a bill that alters rules, but it can’t take direct action on them.
Judges Michael Catlett and Jennifer Campbell rounded out the three-judge appellate panel. It’s unclear when the judges will rule.
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