Petition for Writ of Certiorari — May v. Brewer

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No.__Q21065 JAN - 9 2009

GFL OF Th Gare,

In The

Supreme Court of the Anited States

STEVE MAY,

Petitioner,

JANICE BREWER, as Secretary of State of the

tate of Arizona, acting in her official capacity;

DAVID PETERSON, as Treasurer of the State of Arizona,

acting in his official capacity; the CLEAN

ELECTIONS COMMISSION; and ARIZONANS

FOR CLEAN ELECTIONS,

Respondents.

On Petition For A Writ Of Certiorari

To The Supreme Court Of Arizona

PETITION FOR A WRIT OF CERTIORARI

INSTITUTE FOR JUSTICE INSTITUTE FOR JUSTICE

ARIZONA CHAPTER WILLIAM H. MELLOR

CLINT BOLICK* Scott G. BULLOCK

TIMOTHY D. KELLER a 1717 Pennsylvania Ave., NW

111 W. Monroe Street Suite 200

Suite 1107 Washington, D.C. 20006

Phoenix, AZ 85022 (202) 955-1300

(602) 324-5440

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

Exo eee wie:

QUESTIONS PRESENTED FOR REVIEW

1. May the State permissibly single out a discrete

group of individuals to involuntarily bear the financial

burden of a public campaign subsidy program?

2. In the area of compelled speech, do this Court’s

decisions in Abood, Keller, and United Foods create the

general rule to which Southworth is the exception, or does

Southworth extend to compelled speech beyond the uni-

versity setting?

PARTIES TO THE PROCEEDING

All parties to the proceeding are listed in the caption.

CORPORATE DISCLOSURE

As none of the parties is a corporation, Sup. Ct. R.

£9.6 is inapplicable.

iil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW. ............-. i

PARTIES TO THE PROCEEDING ..............::::::eess00 ii

CORPORATE DISCLOSURE .............:ccccsseeeeeseeeeeeees ii

TABLE OF AUTHORITIES ............:cceseeeeseeeeeeeeeeenees Vv

OPINIONS BELOW ............:::cceeeeeceeeseeeeeeeneeeeereneeeees 1

BASIS FOR JURISDICTION .............cccescseeeeeeeeneeeeees 1

CONSTITUTIONAL PROVISION AND STATUTE

TNIVOLVED .....ccccccceccsscccscccccvccccsccesersvescccscsssecosesees 1

STATEMENT OF THE CASB............::ccccssseeeeeeeeeeeeees 1

A. Statement of Facts............c:cccsecseeeseereeeeeeeeeees 1

B. Statement of the Case............ccccsseeseeeeeeeeeeeees 3

REASONS FOR GRANTING THE PETITION ......... 6

I. STATE COURTS OF LAST RESORT HAVE

REACHED DIRECTLY CONTRADICTORY

DECISIONS REGARDING THE CONSTI-

TUTIONALITY OF INVOLUNTARY PO-

LITICAL SUBSIDIES UNDER THE FIRST

AMENDMENT; REQUIRING RESOLUTION

BY THIS COURT .............::cesceeeeenceneeeeeeeeeeenens 7

Il. THE COURT BELOW MISAPPLIED THIS

COURTS COMPELLED SPEECH JURIS-

PRUDENCE BY REFUSING TO APPLY

ABOOD, KELLER, AND UNITED FOODS,

AND BY EXTENDING SOUTHWORTH BE-

YOND THE UNIVERSITY SETTING............. 12

TABLE OF CONTENTS -— Continued

Page

III. THE PROLIFERATION OF PUBLIC FUND-

ING SCHEMES AND THE INADEQUACY

OF VOLUNTARY FUNDING MAKE IT ES-

SENTIAL TO ESTABLISH CLEAR LEGAL

Pa IED wap ssc ccsnichasisnonenckbeepacebaevbicmnnbinies 19

TABLE OF AUTHORITIES

Page

CASES

Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977)......passim

Bates v. Director of Office of Campaign and Political

Finance, 763 N.E.2d 6 (Mass. 2002)...........s:cssscsssssssesesseeeees 8

Bd. of Regents v. Southworth, 529 U.S. 217 (2000)...... passim

Buckley v. Valeo, 424 U.S. 1(1976).........cccccccessseeseseeeees 7,13

Eu v. San Francisco County Democratic Central

Ceamenann., SD UB Ce ccsecittcrceneiccnssctnchitintiinicnenianns 15

Keller v. State Bar of Calif., 496 U.S. 1

(eck sinitsbscncscscinckonsaithadksaiceativaiionesneuah 9, 14, 15, 16, 20

Lavis v. Bayless, slip op., No. CV 2001-006078

(Maricopa County Super. Ct. Dec. 21, 2001).................. 4

Lavis v. Bayless, slip op., No. CIV 99-1627 PHX

PGR TSZ (D. Ariz. Mar. 13, 2001)...........ccscccrrsessessoseserees 4

Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991)........ 14

Libertarian Party of Ind. v. Packard, 741 F.2d 981

CRs Ce TB icisiditndtieni Gednineiiiewnn 12

May v. McNally, 55 P.3d 768 (Ariz. 2002) ...........eeeeeeeees 1,5

May v. McNally, 49 P.3d 285 (Ariz. App. 2002)............... 1,5

State of Fla. by Butterworth v. Republican Party of

Fla., 604 So.2d 477 (Fla. 1992) ...............:seseeeeeeeee 9, 10, 15

U.S. v. United Foods, Inc., 533 U.S. 405 (2001)...... 9, 15, 16

Vt. Society of Ass’n Execs. v. Milne, 779 A.2d 20 (Vt.

SEITE Micsscnecasbabticnsisieenomsiaibaniisiiabiaghlaselhatiseiialdazineadiaisiataeaaamiadaads 10

W.Va. State Bd. of Educ. v. Barnette, 319 U.S. 624

CII ie ccsis sihsivniniss cc enininscaniienccancaansiiiihiseinsbadianaiiomnanicariaeesibibinen 6

TABLE OF AUTHORITIES -— Continued

Page

CONSTITUTIONAL PROVISIONS

US. Gommnt: CURIE TE ccsiccnencecsiccescetersoevenceesanccnveoyeneniney passim

CODES AND STATUTES

28 U.S.C. § 1257(a) ........... Saascessconssndtibegdeosainnenshataiaaunieanantte 1

Bipartisan Campaign Finance Act of 2002, 107 P.L.

115; 116 Stat. 81, tit. 3, § 310 ................cccroesserseseeerees 20

A.R.S. § 16-40, ef 20G.’ ......cccccccrcccrcccsccrcccccccccccccscesseccscsees 1,2

Fla. Stats. § 99.092.......... snsenssoconesessnessenssonenpescessunsennsoesenee 19

BOE BD vascccscsiccsioncensssannssrsesshinnssaseentiioseapnbenenebainenoananseiion 19

BR TR sci nnvesccescusscevereenssseiéeennsenniocbdneeesssenebeniavensenmaeniien 19

pe eee 19

BS BO BI ED) ccnsvecereniencsevixiirncnsocesegusousnpesommniennnanssnbanentionns 19

Ind. Code $ 9-18-15-18 ........scccccccssssssscssesssccncesneceseccssvensenees 19

TABLE OF AUTHORITIES — Continued

Page

Bias. Laws 10 © 4B.....ccrcecccsscoccccesescevcccesscscccscccsescopeososesecees 19

Dhan, F 2 GB 6 GS .occveserevesecevccesersecconescccccnnncossopnececesreeress 19

Me. Rev. Stats. 21-A § 1020-A(4) ..........ccceceeeeeeeeeeeeeeneeeeeees 19

BG oon cocececvccsssavenseseonecenteseonesshpuonnnessosonssnocssosnsobecessoseens 19

BDI is cicicncoccnninesosrcnssenccerecsosqnanqeorsmenennincennedscenneseessnontoens 19

DIE aicnsecscvonrssncsncssrsssscensenccnscncvosonsentecensecssssesnenberecuuacens 19

De, Thar, Bie, BBS Biv. cerensccevccsacscoccscccescssssserereedccscesetensenes 19

0D... .nosnninnccbsssisesancbeseducabevsesasensesnsbossbemnotntcbenvenscovecieosessees 19

Vt. Stats. Ann. Title 11A § 1.22(a8)(16)............:ccceeeeeeeeeeeees 19

TIATED 1) vcsnsencracecccscascnsdosacccesoccooseennencsecovosontebeesensuenes 19

OTHER PUBLICATIONS

Clint Bolick, “Fundraising Arizona: We’ve Just Seen

the Future Of Campaign Finance Reform, and It’s

Not Pretty,” The Weekly Standard (Dec. 2, 2002).......... 18

Center for Responsible Politics, www.opensecrets.

org/2000elect/other/presfund/checkoff. htm ................+++ 8

Ed Hayward, “Voters Go for Change in State Bilin-

gual Ed,” Boston Herald (Nov. 6, 2002) ............:sceeseeeeees 8

OPINIONS BELOW

The decision of the Superior Court of Maricopa County,

Arizona in Lavis v. Bayless, slip op., No. CV 2001-006078

(Maricopa County Super. Ct. Dec. 21, 2001), is unpublished

and is set forth at App. 32a. The decision of the Arizona Court

of Appeals in May v. McNally is published at 49 P.3d 285

(Ariz. App. 2002) and reproduced at App. 16a. The decision of

the Arizona Supreme Court in May v. McNally is published

at 55 P.3d 768 (Ariz. 2002) and reproduced at App. la.

BASIS FOR JURISDICTION

The final judgment in this action was entered on

October 11, 2002. The basis for this Court’s jurisdiction is

28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISION

AND STATUTE INVOLVED

The governing constitutional provision in this matter is

the speech clause of the First Amendment to the United

States Constitution, which provides in relevant part that

“Congress shall make no law ... abridging the freedom of

speech. ...” The statute at issue is Arizona Revised Statutes

(A.R.S.) § 16-940, et seg., which is reprinted in the appendix

(App. 39a).

STATEMENT OF THE CASE

A. Statement of Facts. In the 1998 general election,

the Arizona voters acting by initiative enacted by a narrow

margin Proposition 200, the so-called Clean Elections Act

(CEA), A.R.S. § 16-940, et seq. (App. 39a), which established

a system of public financing for state elections. The act

created a system of subsidies for candidates choosing to

receive them, and tightened restrictions and reduced the

amount of permissible contr:butions for those who choose

to run for state offices without government subsidies.

The Act created the Citizens Clean Elections Commis-

sion, which was given extensive authority to regulate state

campaigns and contributions. The Commission adminis-

ters the Clean Elections Fund, which provides public

campaign subsidies to those candidates who choose and

qualify to receive them. Under the Act, the fund is fi-

nanced by four funding sources, two voluntary and two

involuntary. The voluntary sources are (1) a five-dollar

state income tax check-off, and (2) a dollar-for-dollar

income tax credit for contributions to the fund up to $ 500

or 20 percent of taxes owed, whichever is greater. See

A.R.S. § 16-954(A)-(B). (App. 59a-60a). In 2000, funding

from these sources amounted to $1.94 million, or approxi-

mately 29 percent of the fund’s total revenue.

The remainder of the fund is earmarked from involun-

tary contributions obtained from two discrete groups of

individuals. The first and larger is a “surcharge of ten

percent ... on all civil and criminal fines collected pursu-

ant to section 12.116.01,” which includes, inter alia, “any

civil penalty imposed and collected for a civil traffic

violation, ... a violation of the motor vehicle statutes, ...

or for a violation of the fish and game statutes.... ” See

ARS. § 16-954(C). (App. 60a). In other words, a person

incurring a parking or speeding ticket would be forced to

pay a ten percent surcharge in addition to the amount of

the fine to subsidize political campaigns, whether they

chose to or not and whether they support the subsidized

candidates or not. In 2000, the surcharges amounted to

$ 4.67 million, or 68 percent of the fund’s total revenue.

The other involuntary revenue source under the Act is

a $100 annual mandatory fee on “all registered lobbyists

representing (a) one or more persons in connection with a

commercial or for-profit entity except public bodies or (b) a

non-profit entity predominately composed of or acting on

behalf of a trade association or other grouping of commercial

or for-profit entities.” A.R.S. § 16-944. (App. 44a). In other

words, lobbyists for the Sierra Club or National Right to Life

would not have to pay the fee, but lobbyists for the Chamber

of Commerce or Farm Bureau would have to pay.

The original plaintiffs in this action were Rick Lavis

and Steve May. Lavis is a lobbyist for the Arizona Cotton

Growers Association and was forced to pay the $100

lobbyist fee, which was used to subsidize political cam-

paigns against his will. Petitioner May is an Arizona

resident who received a parking ticket in 1999 and was

fined $ 27, which included a ten percent surcharge for the

CEA. He refused to pay the surcharge and has received

two notices stating that the amount is still due. At the

time May received his fine, he was a member of the state

legislature who refused to accept involuntary funds for his

campaign. However, the surcharge would have been used

to finance the campaigns of candidates that May did not

support, including his own opponents.

The 2002 election was the first in which subsidies

were available to all candidates for all state elective

offices.

B. Statement of the Case. A substantially identical

lawsuit alleging that the coerced funding provisions of the

CEA violated the First Amendment was filed in federal

district court in September 1999. On March 13, 2001, the

court dismissed the action for lack of subject matter

jurisdiction on the grounds that it challenged a state tax

that must be challenged initially in state court. Lavis v.

Bayless, slip op., No. CIV 99-1627 PHX PGR TSZ (D. Ariz.

Mar. 13, 2001).

Lavis and petitioner May filed the instant lawsuit in

Maricopa County Superior Court on April 10, 2001, alleg-

ing a violation of the First Amendment and the free-speech

provisions of the Arizona Constitution. The original

defendants, Secretary of State Betsey Bayless, and State

Treasurer Carol Springer, filed an answer in which they

“take no position regarding the merits of the legal issues

raised in this lawsuit” and “request that this Court order

such relief as it deems just and proper.” Arizonans for

Clean Elections, which supports the CEA, intervened as a

defendant. The parties stipulated to the facts and filed

cross-motions for summary judgment.

On December 21, 2001, the Maricopa County Superior

Court issued an opinion striking down the lobbyist fee as

an unconstitutional prior restraint on speech under the

First Amendment, but upholding the surcharge. Lavis v.

Bayless, slip op., No. CV 2001-006078 (Maricopa County

Super. Ct. Dec. 21, 2001) (App. 32a). In sustaining the

surcharge, the court applied Bd. of Regents v. Southworth, —

529 U.S. 217 (2000), and concluded that the surcharge was

permissible because it was viewpoint-neutral. Id. at 3-4

(App. 34a-35a).

The plaintiffs appealed the adverse decision on the

constitutionality of the surcharge, but the defendants did

not appeal the adverse decision striking down the lobbyist

fee.’ On June 17, 2002, a unanimous panel of the Arizona

Court of Appeals reversed and found that the surcharge

violated the First Amendment. Applying this Court’s line

of cases commencing with Abood v. Detroit Bd. of Educ.,

431 U.S. 209 (1977), the court concluded that the trial

court had erred in applying Southworth, and that the

surcharge constituted impermissible compelled speech.

May v. McNally, 49 P.3d 285 (Ariz. App. 2002) (App. 16a).

The court found that “the surcharge is imposed upon a

specific group of individuals, placed in a special fund, and

geared toward a specific purpose: political campaigns.” Id.

at 291 (App. 27a-28a). The court concluded that the

surcharge was unconstitutional “because it is imposed upon

a discrete group of individuals who are involuntarily associ-

ated and because the supported speech is not germane to the

purpose of that association.” Jd. at 292 (App. 31a).

On October 11, 2002, the Arizona Supreme Court

reversed. May v. McNally, 55 P.3d 768 (App. 1a). The court

dispensed with the “germaneness” test dictated by the

Abood line of cases, id. at 772 (App. 10a), and instead

applied Southworth, concluding that the surcharge was

permissible because it was viewpoint-neutral. Jd. at 773

(App. 10a-11a).

* Hence, plaintiff Lavis is no longer a party to the proceedings.

REASONS FOR GRANTING THE PETITION

A hallmark of a free society is that participation in

election campaigns is voluntary. The State of Arizona has

transformed the decision of which political candidates to

support with financial contributions — or whether to

contribute to a political candidate at all — from an act of

individual volition into an act of compulsion. This Court

traditionally has served as our nation’s ultimate guardian

of free political speech, which encompasses “both the right

to speak freely and the right to refrain from speaking at

all.” W.Va. State Bd. of Educ. v. Barnette, 319 U.S. 624

(1943) (Murphy, J., concurring); Wooley v. Maynard, 430

U.S. 705, 714 (1977). This case calls upon the Court to

play that essential role again.

As appears below, this case implicates three of the

compelling reasons set forth in S. Ct. R. 10(b) and (c) as

suggesting appropriate circumstances for review by this

Court:

1. Astate court of last resort has decided an impor-

tant federal question in a way that conflicts with the

decision of another state court of last resort;

9. Astate court has decided an important question of

federal law that has not been, but should be, settled by

this Court; and

3. A state court has decided an important federal

question in a way that conflicts with relevant decisions of

this Court.

I. STATE COURTS OF LAST RESORT HAVE

REACHED DIRECTLY CONTRADICTORY DE-

CISIONS REGARDING THE CONSTITUTIONAL-

ITY OF INVOLUNTARY POLITICAL SUBSIDIES

UNDER THE FIRST AMENDMENT, REQUIRING

RESOLUTION BY THIS COURT.

In Buckley v. Valeo, 424 U.S. 1, 92-93 (1976), the Court

recognized that government has an interest in facilitating

“public discussion and participation in the electoral

process, goals vital to a self-governing people,” which may

be accomplished through the public funding of campaigns.

The Court upheld against First Amendment challenge an

income tax checkoff that allows federal taxpayers volun-

tarily to designate a portion of their tax liability for use in

a presidential campaign fund, finding that the fund “is like

any other appropriation from the general revenue” except

that its amount is determined by the number of voluntary

check-offs. Jd. at 91. The Court noted that every congres-

sional appropriation “uses public money in a manner to

which some taxpayers object.” Id. at 92. However, the

Court did not in that case, nor in subsequent decisions,

have occasion to address the important question presented

by this case: whether government permissibly may impose

the financial burden of political campaigns on discrete

groups of individuals, not by voluntary means but through

compulsion. The courts below divided sharply on that

question, as have the courts of the various other jurisdic-

tions to have considered it, presenting a clarsic case

requiring resolution by this Court.

In devising Arizona’s campaign subsidy program, the

drafters of Proposition 200 opted against funding the

program exclusively through the two means for which this

Court in Buckley apparently created a constitutional safe

harbor: general appropriations or voluntary income tax

check-offs. They did so with the obvious recognition that

while the idea of campaign subsidies seems politically

popular, the reality of paying for them through taxpayer

dollars is not. Given competing fiscal priorities, legisla-

tures and taxpayers appear to assign a very low priority to

funding politicians.” However, by singling out two discrete

and unpopular classes of individuals — lobbyists for for-

profit causes and individuals sustaining civil or criminal

fines — to involuntarily bear most of the expense of cam-

paign subsidies, the initiatives proponents triggered

scrutiny under this Court's compelled speech jurispru-

dence.

On at least four occasions so far, states have opted to

fund campaign subsidy programs not exclusively through

general appropriations or voluntary check-offs, but in part

through involuntary assessments imposed on discrete

groups of individuals. The appellate courts of last resort

7 In 2000, funds derived in Arizona from the dollar-for-dollar

income tax credit, which costs taxpayers who take it nothing, and the

five-dollar income tax check-off, which actually returns five dollars to

the taxpayer who opts for it, comprised less than 30 percent of the

Clean Elections Fund in Arizona. Likewise, at the federal level, only

about 12 percent of taxpayers designate three dollars of their taxes to

the presidential campaign fund. Center for Responsible Politics, www.

Massachusetts, state courts had to force recalcitrant state officials to

appropriate funds for its campaign subsidy program. Bates v. Director of

Office of Campaign and Political Finance, 763 N.E.2d 6 (Mass. 2002).

Subsequently in 2002, approximately 75 percent of the Massachusetts

electorate voted in a nonbinding state-wide referendum to oppose the

use of taxpayer funds for campaign subsidies. Ed Hayward, “Voters Go

for Change in State Bilingual Ed,” Boston Herald (Nov. 6, 2002), at 4.

have split over their constitutionality, with two upholding

the schemes and two striking them down.

The courts below illustrate the confusion and diffi-

culty inherent in applying this Court’s rules on compelled

political speech in the context of involuntary campaign

subsidies. The trial court struck down the annual fee

imposed upon certain lobbyists, but upheld the surcharge

on civil and criminal fines (App. 35a, 37a). The court of

appeals unanimously struck down the surcharge (App.

31a). The Arizona Supreme Court unanimously upheld it

(App. 15a). In so doing, the ‘court distinguished this

Court’s compelled speech jurisprudence developed in such

cases as Abood, supra; Keller v. State Bar of Calif., 496

U.S. 1 (1990); and U.S. v. United Foods, Inc., 533 U.S. 405

(2001) (see App. 6a-8a); and concluded that “[wle find the

Southworth approach better suited than the Abood line of

cases for analyzing the constitutionality of the Clean

Elections Act.” (App. 10a). Applying Southworth, the court

found the compelled subsidies constitutional because, in

its view, the program is viewpoint-neutral. (App. 11a-12a).

In stark and direct contrast, the Florida Supreme

Court struck down under the First Amendment a law that

imposed a 1.5 percent assessment on all contributions

received by political parties, which was earmarked for the

state’s political subsidy fund. State of Fla. by Butterworth

v. Republican Party of Fla., 604 So.2d 477 (Fla. 1992). The

court found that “[s]upport from the trust fund is available

on a content-neutral basis, but at least a portion of that

money will be given to the appellees’ adversaries, and in

those cases the effect of the assessment will be to subsidize

political candidates with political positions differing from

those of the appellees.” Jd. at 479. Applying the “germane-

ness” test of Abood and its progeny, the court concluded

that “singling out political parties and associations to

support the fund bears no relationship to the interest

advanced.” Jd. at 480. The holdings of the Arizona Su-

preme Court in this case and the Florida Supreme Court

in Butterworth cannot be reconciled.*

Two other cases also reflect conflict in this area. In Vt.

Society of Ass’n Execs. v. Milne, 779 A.2d 20 (Vt. 2001), the

Vermont Supreme Court invalidated a tax imposed upon

lobbyists to fund campaign subsidies. The court noted that

lobbyists “were specifically targeted in an effort to redirect

[funds] ... to a neutral public fund for candidates for the

offices of governor and lieutenant governor.” Jd. at 28. The

court rejected the defense of viewpoint neutrality, noting

that this Court “has never upheld a tax that singled out

First Amendment interests, irrespective of whether it

suppressed particular viewpoints.” Jd.

* The court below attempts to distinguish Butterworth by noting

that the statute “directly burdened political contributions.” (App. 12a

n.5). While that fact is true, the actual financial burden was borne by

the political parties, not the contributors; and the gravamen of the

court’s decision was that political parties were singled out to make

contributions to a political fund whose purpose was not germane to the

purpose of the association — precisely as Abood requires (see Part II,

infra).

CONFLICTING DECISIONS ON

COERCED POLITICAL SUBSIDIES

Court

Involuntary

Fee

Viewpoint

Neutral?

Applicable

Precedent

Constitutional

Standard

Application of

Standard

Result

State of Fla. by

Butterworth v.

Republican Party

of Fla.

Florida Supreme

Court

Assessment on

Contributions

Yes

Abood

Strict Scrutiny,

Germaneness

Viewpoint neutral-

ity insufficient;

assessment is

compelled political

speech and not

germane to associa-

tion’s interests

Unconstitutional

May v. McNally

Arizona

Supreme Court

Surcharge on Civil

& Criminal Fines

Yes

Southworth

Viewpoint

Neutrality

“[V]iewpoint

neutrality in in

the allocation of

funds adequately

safeguards First

Amendment

rights” (App. 10a)

Constitutional

In Libertarian Party of Ind. v. Packard, 741 F.2d 981

(7th Cir. 1984), the Seventh Circuit upheld the use of

funds derived from the sale of personalized license plates

to subsidize political parties. The court applied Abood,

noting that “the right not to contribute to the spreading of

a political message is protected by the first amendment.”

Id. at 988. However, the court found that the Abood

standard was not violated because the funds were not used

to support a particular partisan viewpoint. Id. at 989. But _

the court also emphasized that this statute involved no

compulsion; as with the voluntary tax check-offs in Buck-

ley, “each member of the public can control the amount of

money distributed to qualifying political parties through

his or her decision to buy or refrain from buying a person-

alized license plate.” Id. at 990. It is not clear from this

case whether the Seventh Circuit requires viewpoint

neutrality, voluntariness, or both.

Plainly, this is an area in need of doctrinal clarity: at

present, whether individuals may be forced to contribute

to political campaigns depends upon the jurisdiction in

which they find themselves. Such an act of governmental

compulsion, which touches upon the most intimate politi-

cal decisions one can make in a democratic society, should

not remain long an open question.

ll. THE COURT BELOW MISAPPLIED THIS

COURT’S COMPELLED SPEECH JURISPRU-

DENCE BY REFUSING TO APPLY ABOOD,

KELLER, AND UNITED FOODS, AND BY EX-

TENDING SOUTHWORTH BEYOND THE UNI-

VERSITY SETTING.

As the divergent decisions of the Arizona and Florida

Supreme Courts and the courts below illustrate, the choice of

which of this Court’s compelled speech decisions to apply —

Abood and its progeny or Southworth — tends to determine

the outcome in a case challenging involuntary campaign

subsidies. That is because Southworth, in the limited setting

of a university, dispenses with the “germaneness” test that

is central to the Abood line of cases. If an involuntary

campaign subsidy is imposed upon a class of individuals

who have no direct relationship to the electoral process, by

definition the classification cannot satisfy the germane-

ness standard. Hence, a court may only hold such a

subsidy permissible if it extends Southworth beyond the

university setting, in apparent direct contradiction to this

Court’s intentions.

That is exactly the jurisprudential innovation the

court below marked when it applied Southworth to the

involuntary campaign subsidies at issue here. In that

determination, the Arizona Supreme Court stands appar-

ently alone: our research reveals not a single other re-

ported appellate decision that has applied Southworth

outside of the university setting, for the obvious reason

that this Court made clear that its holding was unique to

that setting. Only this Court can correct that error.

This Court’s modern compelled speech jurisprudence

began in 1977 with Abood, when the Court unanimously

ruled that a public teachers union could not force teachers

to fund political and other ideological activities of which

they did not approve. The Covrt’s decision was not

grounded in the objection by those forced to pay union dues

to a particular message, as the court below asserted, but

rather in the fact that the union engaged in political

activities beyond those related to the collective bargaining

agreement. Because the “state law ‘sanctions the use of

nonunion members’ fees for purposes other than collective

bargaining’,” the Court ruled, “this case presents constitu-

tional issues.” Id., 431 U.S. at 232 (citation omitted). As

the Court declared, “The fact that the appellants are

compelled to make, rather than prohibited from making,

contributions for political purposes works no less an

infringement of their constitutional rights.” Jd. at 234. As

a consequence, the Court established a bright-line rule:

the union could only “constitutionally spend funds for the

expression of political views, on behalf of political candi-

dates, or toward the advancement of other ideological

causes not germane to its duties as a collective-bargaining

representative” only through “charges, dues, or assess-

ments paid by employees who do not object to advancing

those ideas and who are not coerced into doing so against

their will... .” Jd. at 235-36 (emphasis added).*

The Court subsequently applied the principles of

Abood to the context of the integrated bar in the 1991

Keller decision, again by a unanimous Court. The Court

distinguished between “appropriations made to [the bar]

by the legislature,” in which the government is acting as

“‘representative of the people,’” as opposed to funds

derived “from dues levied on its members,” specifically all

California lawyers, who are required to be members of the

bar. Id., 496 U.S. at 10-11 (citation omitted). As the Court

noted, the bar “was created, not to participate in the general

* Forbidden uses of compelled contributions included not only

political contributions, but also lobbying or other union political

activities outside the limited context of contract ratification or imple-

mentation, programs designed to secure funds for public education,

litigation unrelated to the bargaining unit, and even public relations

efforts designed to enhance the reputation of the teaching profession.

Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991).

government of the State, but to provide specialized profes-

sional advice to those with the ultimate responsibility of

governing the legal profession.” Jd. at 13. Applying the

germaneness test, the Court concluded that the state bar

“may therefore constitutionally fund activities germane to

those goals out of the mandatory dues of all members. It

may not, however, in such manner fund activities of an

ideological nature which fall outside of those areas of

activity.” Id. at 14.

The same test should apply here. As this Court has

held, “the First Amendment ‘has its fullest and most -—

urgent application’ to speech uttered during a campaign

for political office.” Eu v. San Francisco County Democratic

Central Comm., 489 U.S. 214, 223 (1989) (citation omit-

ted). As the Florida Supreme Court observed in Butter-

worth, 604 So.2d at 479, “It is well established that

supporting a political candidate financially is speech and

represents political expression at the core of the electoral

process.” Were a court properly to apply the principles of

Abood and Keller to the context of compelled political

subsidies, as did the court of appeals below, it necessarily

would find them unconstitutional. Those who are unfortu-

nate enough to have civil or criminal fines assessed

against them have no special connection to the political

process. Fees related to the administration of justice might

properly be assessed against them, but not political

subsidies. If the germaneness test applies, the subsidies at

issue here are impermissible.

Only two years ago, the Court amplified further its

compelled speech principles in United Foods, and extended

the Abood framework outside the context of political

speech, invalidating assessments imposed upon mushroom

handlers to promote mushroom sales. The Court described

the issue in terms strikingly similar to the instant case:

“The question is whether the government may underwrite

and sponsor speech with a certain viewpoint using special

subsidies exacted from a designated class of persons, some

of whom object to the idea being advanced.” United Foods,

533 U.S. at 410. The Court reiterated that the First Amend-

ment forbids government from compelling individuals to

express certain views and “from compelling certain indi-

viduals to pay subsidies for speech to which they object.”

Id. But the Court also emphasized that “Iblefore address-

ing whether a conflict with freedom of belief exists, a

threshold inquiry must be whether there is some state

imposed obligation which makes group membership less

than voluntary; for it is only the overriding associational

purpose which allows any compelled speech in the first

place.” Id. at 413 (emphasis added). Construing Keller in

terms markedly different than the court below, the Court

declared that “[t]he central holding of Keller” was not that

individual members could not be forced to subsidize beliefs

with which they disagreed, but “that the objecting mem-

bers were not required to give speech subsidies for matters

not germane to the larger regulatory purpose which

justified the required association.” Id. at 414. As if speak-

ing to the present case, the Court affirmed that “[w]e have

not upheld compelled subsidies for speech in the context of

a program where the principal object is speech itself.” Id.

at 415. The Clean Elections Act, whose “principal object is

speech itself,” imposes the costs of political subsidies upon a

class of individuals who are not voluntarily associated, for

purposes completely unrelated to the class. Plainly, the

Clean Elections Act cannot survive the test of United Foods.

The court below declined to apply this Court's broad

compelled speech framework, instead opting to apply

Southworth, ignoring that this Court made clear that its

decision upholding the mandatory use of student fees was

unique to the university context, where association is of

course voluntary and whose broad mission, among other

things, is “‘to discover and disseminate knowledge’.” Jd.,

529 U.S. at 221 (quoting university’ mission). The Court

observed that student organizations were prohibited from

using mandatory fees for “politically partisan” activities or

for organizations that have a “primarily political orienta-

tion.” Id. at 225-26. Moreover, the fee was not imposed

upon a distinct group of students, but upon the community

as a whole in an act of self-governance. “The University’s

whole justification for fostering the challenged expression

is that it springs from the initiative of the students, who

alone give it purpose and content in the course of their

extracurricular endeavors.” Id. at 229. Here too the com-

pelled subsidies spring from the initiative of the commu-

nity, but with a very different effect: the fees are imposed

not by the community upon itself, but by the community

upon a discrete subset. It would not strain the imagination

to envision a very different result in Southworth had the

fees not been imposed upon the entire community, but only

upon the College Democrats or the glee club.

The Court concluded in Southworth that the “stan-

dard of germane speech as applied to student speech at a

university is unworkable. ... It is not for the Court to say

what is or is not germane to the ideas to be pursued in an

institution of higher learning.” Jd. at 231-32 (emphasis

added). The court below did not explain why the germane-

ness test, to which this Court has adhered in every other

context, cannot apply here. Indeed, it would seem easier to

apply the rule here than in the union or bar contexts, for-

there is not even the remotest argument that the speech

here is germane to an association purpose (or even that

there is an association purpose). If the precious constitu-

tional protection against compelled political speech is to be

eroded through the extension of a narrow exception, that

rule should be announced not by a state supreme court but

by this Court. Certainly a decision by a state supreme

court doing just that necessitates review.

Even if Southworth provided the applicable rule, the

compelled speech here is not viewpoint-neutral, notwith-

standing that all candidates may qualify for subsidies.

First of all, the act of contributing to campaigns at all is

an expression of political speech. An individual may choose

not to vote, to contribute, or to participate in the political

process at all, which is a distinguishing characteristic of a

free society and surely protected by the First Amendment.

Yet that decision has been removed from members of the

subject class in Arizona by virtue of the Clean Elections

Act.

Moreover, the only candidates who are funded by the

CEA are those who do not object philosophically to politi-

cal subsidies generated from taxpayer or involuntary

contributions. Hence the subsidies are not viewpoint-

neutral, and those like petitioner May who are singled out

to bear the financial burden may be asked to support

candidates with whom they disagree. The recent election

for governor pitted one candidate who ran with subsidies

and another who was philosophically opposed to them. See

Clint Bolick, “Fundraising Arizona: We've Just Seen the

Future of Campaign Finance Reform, and It’s Not Pretty,”

The Weekly Standard (Dec. 2, 2002), at 23. May’s coerced

contribution would be funneled to one candidate but not

the other.

Forced political participation in Arizona, occasioned

by the challenged funding sources, is a chilling departure

from the principles of a free society and has enormous

free-speech implications that this Court should address.

Specifically, it should assure that the compelled speech

framework that it has steadfastly applied over the past

two decades — and that so far has admitted only one

narrow exception — should not be eviscerated.

Ill. THE PROLIFERATION OF PUBLIC FUNDING

SCHEMES AND THE INADEQUACY OF VOL-

UNTARY FUNDING MAKE IT ESSENTIAL TO

ESTABLISH CLEAR LEGAL PARAMETERS.

At least six states so far have adopted public subsidies

for election campaigns. The sources of funding vary.

Florida derives funds from candidate filing fees and

voluntary contributions. See Fla. Stats. §§ 106.32, 99.092,

99.093, 105.031, 106.04, 106.07, 106.29, 199.052(14),

320.02(13), 322.08(7)(a), 327.25(11), and 607.1622(1)(h).

Indiana obtains funds from personalized license plate

sales. Ind. Code § 9-18-15-13. Maine collects funds from

voluntary donations, tax checkoffs, and fines, along with

general tax revenues. Me. Rev. Stats. 21-A §§ 1020-A(4)

1124, 1125, 1127 and 36 §§3 and 8. Massachusetts pro-

vides general appropriations, a tax checkoff, and fines.

Mass. Laws 10 § 42 and 62 § 6C. Vermont no longer may

use lobbyist fees, so relies primarily on funds derived from

annual report fees by domestic corporations. Vt. Stats.

Ann. Title 11A §§ 1.2%(a)(16) and (17). Some of those

sources are general appropriations or voluntary contribu-

tions; others are involuntary assessments imposed upon

discrete groups of individuals. But the rules governing

them, especially in light of the Arizona Supreme Court’s

decision in this case, are far from settled.

Moreover, the recently enacted McCain-Feingold

federal campaign finance law provides for a study of the

public funding systems in Arizona and Maine. Bipartisan

Campaign Finance Act of 2002, 107 PL. 115; 116 Stat. 81,

tit. 3, § 310. The impetus for public campaign subsidies is

strong. No matter how well-intentioned, efforts to expand

political speech through campaign subsidies should not as

a byproduct infringe the free-speech rights of dissenters.

Given the proliferation of such schemes, the divergence in

legal standards applied by lower courts, and the clear

challenge to this Court's compelled speech jurisprudence,

this Court should review the decision below and set forth

clear constitutional parameters.

Thomas Jefferson declared that “to compel a man to

furnish contributions of money for the propagation of

opinions which he disbelieves, is sinful and tyrannical.”

Quoted in Keller, 496 US. at 10. In a free society, political

participation must be voluntary. We urge this honorable

Court to reaffirm that vital principle.

Respectfully submitted,

INSTITUTE FOR JUSTICE INSTITUTE FOR JUSTICE

ARIZONA CHAPTER WILLIAM H. MELLOR

CLINT BOLICK* Scott G. BULLOCK

TrmoTHY D. KELLER 1717 Pennsylvania Ave., NW

111 W. Monroe Street Suite 200

Suite 1107 Washington, DC 20006

Phoenix, AZ 85022 (202) 955-1300

(602) 324-5440

*Counsel of Record

eee

SUPREME COURT OF ARIZONA

En Banc

STEVE MAY, ) Arizona Supreme Court

Petitioner, No. CV-02-0215-PR

Court of Appeals

Vv. | Re degetey

Division One

HON. COLLEEN A. No. 1 CA-SA 02-0073

McNALLY, Judge ofthe ?

SUPERIOR COURT OF __) Maricopa County

Superior Court

THE STATE OF ARIZONA, )2"P

in and for the County of ) No. CV 2001-006078

Maricopa, OPINION

Respondent Judge, ) (Filed Oct. 11, 2002)

BETSEY BAYLESS, as )

Secretary of the State of

Arizona, acting in her

official capacity; CAROL

SPRINGER, as Treasurer of

the State of Arizona, acting

in her official capacity; and

the CITIZENS CLEAN

ELECTIONS COMMIS-

SION; and ARIZONANS

FOR CLEAN ELECTIONS,

Real Parties in Interest.

Ney ee ee eee eee

Special Action from the Superior Court of Maricopa

County The Honorable Colleen A. McNally, Judge

JUDGMENT AFFIRMED

Court of Appeals, Division One

203 Ariz. 13, 49 P.38d 285 (App. 2002)

OPINION VACATED

INSTITUTE FOR JUSTICE ARIZONA Phoenix

CHAPTER

by Clint Bolick

and Timothy D. Keller

Thomas P. Liddy

Attorneys for Petitioner

THOMAS P. PROSE, Acting Arizona Phoenix

Attorney General in this

case and Chief Assistant

Attorney General

by Kathleen P. Sweeney, Assistant Attorney

General

and Todd F. Lang, Assistant Attorney General

Attorneys for Real Party in Interest

Citizens Clean Elections Commission

ARIZONA CENTER FOR LAW IN THE Phoenix

PUBLIC INTEREST

by Timothy M. Hogan

and

THE BRENNAN CENTER FOR JUS- New York, NY

TICE AT NEW YORK UNIVERSITY

SCHOOL OF LAW

by Elizabeth Daniel

Attorneys for Real Party in Interest

Arizonans for Clean Elections

PACIFIC LEGAL FOUNDATION Sacramento, CA

by Deborah J. La Fetra

Attorneys for Amicus Curiae Pacific Legal Foundation

BERCH, Justice.

@1 Inthe 1998 general election, Arizona voters approved

the Citizens Clean Elections Act to “encourage citizen

participation in the political process, and ... promote

freedom of speech under the U.S. and Arizona Constitu-

tions,” and to “create a clean elections system that will

improve the integrity of Arizona state government by

diminishing the influence of special-interest money.”

_ Ariz.Rev.Stat. (“A.R.S.”) § 16-940(A) (Supp.2001). The Act

provides public financing for the campaigns of qualifying

candidates for certain elected offices. See id. §§ 16-940 to -

961 (Supp.2001). This case presents a challenge to the

Act’s key funding provision.

22 The Act created the Citizens Clean Election

Commission (“CCEC”), which oversees the disbursement of

funds to qualifying candidates. To fund the campaigns of

“clean elections” candidates, the CCEC collects funds from

four sources: voluntary contributions to the fund, funds

earmarked through a “check-off” provision on state income

tax returns, a fee on certain registered lobbyists, and a ten

percent surcharge on civil and criminal fines. Id. §§ 16-

944, 16-954(A)-(C). We are asked to determine whether the

ten percent surcharge on criminal and civil fines required

by A.R.S. § 16-954(C) violates the First Amendment by

impermissibly compelling those who pay the fines to

support the speech of political candidates whom they

might not otherwise support. We hold that it does not.

BACKGROUND

23 Petitioner Steve May, then an Arizona state

legislator, received a parking ticket and was fined $27, on

which a ten percent surcharge authorized by the Act was

assessed. May refused to pay the $2.70 surcharge, claim-

ing that doing so would violate his First Amendment right

to free speech because the money might be used to fund

the campaigns of candidates whose views he opposed. He

also challenged the fee on registered lobbyists.

m4 May filed a federal court action, which was

dismissed on the ground that the Tax Injunction Act, 28

U.S.C. § 1341, deprived the court of subject matter

jurisdiction. See Lavis v. Bayless, No. CIV 99-1627 (D.Ariz.

Mar. 13, 2001). He then filed his action in Maricopa

County Superior Court, urging the state courts to find the

Act unconstitutional. The Citizens Clean Elections

Commission and Arizonans for Clean Elections, the group

that sponsored the initiative, intervened in support of the

Act’s constitutionality. The trial court upheld the

constitutionality of the surcharge on civil and criminal

fines, but invalidated the fee assessed against certain

registered lobbyists. May v. Bayless, No. CV 2001-006078

(Mar. Cnty. Super. Ct. Apr. 2, 2002). The latter ruling was

not appealed.

45 The court of appeals reversed, finding the sur-

charge an unconstitutional restraint on free speech and

enjoining the State from imposing it. May v. McNally, 203

Ariz. 13, 49 P.3d 285 (App.2002).

G6 We stayed the court of appeals opinion and

granted review to determine whether the surcharge

provision of the Clean Elections Act impermissibly compels

political speech of the surcharge payers, in violation of the

First Amendment’s guarantee of freedom of speech.

DISCUSSION

G7 Our analysis is framed by the United States

Supreme Court's opinion in Buckley v. Valeo, 424 U.S. 1,

92-93 (1976), which recognized that government may

properly use public funds to establish a system of

campaign financing.’ In Buckley, the Court considered,

among other issues, the constitutionality of the Presiden-

tial Election Campaign Fund, a provision of the Federal

Election Campaign Act of 1971 that allowed taxpayers a

one dollar check-off on income tax returns that resulted in

a dollar-for-dollar allocation out of the general fund to

qualifying presidential candidates. Id. at 86-87.

18 Those opposing the Presidential Campaign Fund

argued that they should be allowed to designate the

candidate to whom their dollar contribution would go. But

the Court disagreed, noting that the campaign fund “is

like any other appropriation from the general revenue

except that its amount is determined [by the number of

check-offs].” Id. at 91. The fact that the contributions

stemmed from a voluntary check-off “does not constitute

the appropriation any less an appropriation by Congress.”

Id. Rather, the “check-off is simply the means by which

Congress determines the amount of its appropriation.” Id.

at 91 n.124. The Court was not moved by the taxpayers’

objection to the potential use of the funds for candidates

the taxpayers opposed. It noted that every congressional

appropriation “uses public money in a manner to which

some taxpayers object.” Jd. at 92.

9 The Court determined that the check-off provi-

sion of the Presidential Campaign Fund did not implicate

the First Amendment because the provision was designed

’ Accord Little v. Florida Dep't of State, 19 F.3d 4, 5 (11th Cir. 1994)

(holding that financing campaigns with public funds does not violate

First Amendment); Libertarian Party v. Packard, 741 F.2d 981, 989-90

(7th Cir. 1984) (same).

to use public money “not to abridge, restrict, or censor

speech, but rather ... to facilitate and enlarge public

discussion and participation in the electoral process, goals

vital to a self-governing people.” Id. at 92-93. Accordingly,

the Court concluded, public funding of presidential cam-

paigns “furthers, not abridges, pertinent First Amendment

values.” Id. at 93.

G10 Buckley thus affirms the proposition that the

public financing of political candidates, in and of itself,

does not violate the First Amendment, even though the

funding may be used to further speech to which the

contributor objects.”

11 May nonetheless maintains that, despite Buck-

ley’s general approval of public financing of political

campaigns, three cases decided by the Court after Buckley

compel a different result in the case before us. Those cases

_ Abood, Keller, and United Foods — hold that discrete

groups of individuals cannot be compelled to fund speech

that they find objectionable unless that speech is germane

to the group’s purpose. May urges that the Abood line of

cases should guide our inquiry.

G12 In Abood v. Detroit Board of Education, 431

U.S. 209 (1977), non-union schoolteachers were required

to pay a service charge to the teachers’ union. The union

used the money for several purposes, including funding

? Indeed, Buckley suggests that Congress could have funded the

see 424 U.S. at 91-92, and May concedes that if the money had gone into

the general fund and could not be traced to any individual, there would

be no constitutional problem.

political and ideological activities that some non-union

teachers found objectionable. Jd. at 212-13. The Court held

that unions could spend union dues to support political

candidates and causes, but could use only “such expenditures

... from charges, dues, or assessments paid by employees who

do not object to advancing those ideas and who are not coerced

into doing so against their will by the threat of loss of govern-

mental employment.” Jd. at 235-36.

9113 Similarly, in Keller v. State Bar of California,

496 U.S. 1 (1990), California lawyers were required to join

the state bar association and pay dues as a condition of

practicing law in the state. As it had in Abood, the Court

held that an organization such as a bar association, in

which membership is a condition of employment, may use

funds generated from mandatory membership fees for

activities “germane” to the organization, but it could not

use those funds to advocate or support ideological view-

points “not ‘germane’ to the purpose for which compelled

association was justified.” Jd. at 13.

914 Finally, in United States v. United Foods, Inc.,

533 U.S. 405 (2001), the Court invalidated fees charged to

mushroom handlers to fund advertisements promoting

mushroom sales because the speech was not germane to a

larger regulatory purpose of the association.

915 The Abood line of cases instructs that govern-

ment may not condition involuntarily associated individu-

als’ opportunity to receive a benefit or ply their trade or

profession upon their compelled support of speech with

which they disagree. We note, however, that no benefit is

being conditioned upon the payment of the surcharge at

issue here, nor is payment of the surcharge a precondition

to employment. The opportunity to commit a crime or park

illegally is not deserving of the same protection as is the

opportunity to participate in lawful activity contemplated

by the Supreme Court in the Abood line of cases.

916 Importantly, the “germaneness test” derived

from the Abood line of cases is predicated upon the exis-

tence of an association. An association is a “gathering of

people for a common purpose; the persons so joined.”

BLACK’s LAw DICTIONARY 119 (7th ed.1999). In this case,

the surcharge payers have not joined together for a com-

mon purpose. At best, the group consists of tens of thou-

sands of otherwise unrelated individuals who, at one time

or another, paid a civil or criminal fine. Indeed, May

conceded at oral argument and in his brief that “there is

no association.” This stands in sharp contrast to the

associations in Abood, Keller, and United Foods, whose

members were linked by a common purpose. The Act, then,

does not create an association of fine payers, and without

an association by which to measure the germaneness of

the speech, the Abood analysis is inapplicable.

G17 Finally, and critically, the speech in Abood,

Keller, and United Foods was viewpoint driven. In all three

cases, the organization chose the funded speech based on

its content. Thus, the objectors were compelled to be

associated with a group message with which they dis- |

agreed. Here, the Clean Elections Act allocates money to

all qualifying candidates, regardless of party, position, or

message, see ARS. § 16-951, and thus the surcharge

payers are not linked to any specific message, position, or

viewpoint. The viewpoint neutrality of the disposition of

funds distinguishes this case from Abood, Keller, and

United Foods. We therefore conclude that the Abood line of

cases does not control the disposition of this case.

9118 The Real Parties in Interest urge us instead to

apply the analysis in Board of Regents v. Southworth, 529

U.S. 217 (2000), in assessing the constitutionality of the

Clean Elections Act. In Southworth, a state university

allocated part of a mandatory student fee, on a viewpoint-

neutral basis, to various student organizations engaged in

ideologically expressive activities. Jd. at 222-24. To qualify

for funding, student organizations had to agree to certain

accounting requirements and spending limitations.

919 The Court acknowledged that once the univer-

sity conditioned the opportunity to obtain an education on

an agreement to support objectionable speech, the First

Amendment was implicated. Jd. at 231. But it rejected the

germaneness test applied in Abood and Keller as “unwork-

able” in the context of extracurricular student speech at a

university. Id. Recognizing that the university's sole

purpose in charging the fee was to facilitate “the free and

open exchange of ideas by, and among, students,” the

Court reasoned that “asking what speech is germane

would be contrary to the very goal the University seeks to

pursue.” Jd. at 229-32. Instead, the Court determined that

“the principal standard of protection for objecting students

. is the requirement of viewpoint neutrality in the

allocation of funding support.” Jd. at 233. Although the

Court acknowledged that some students were required to

pay fees to subsidize speech they found “objectionable,

even offensive,” the viewpoint neutrality requirement of

the student fee program sufficiently protected the stu-

dents’ First Amendment rights. Id. at 230.°

* Concurring, Justice Souter observed that the relationship

between the fee payer and the objectionable speech was attenuated

(Continued on following page)

10a

420 In the case before us, the court of appeals did

not find Southworth informative, concluding that its

analysis applied only in the university setting. See May,

203 Ariz. at 18, 7 17, 49 P3d at 290. We think otherwise.

While a university is certainly one venue in which the free

and open exchange of ideas is encouraged, it is not the

only one. Encouraging public debate in the political arena

is at least as compelling a public purpose as encouraging

speech on a university campus. Moreover, limiting South-

worth to a university setting overlooks the thrust of the

Court’s analysis: If the government seeks to facilitate or

expand the universe of speech and accomplishes its goal in

a viewpoint neutral way, the question whether speech is

germane is simply inapposite.

G21 We find the Southworth approach better suited

than the Abood line of cases for analyzing the constitu-

tionality of the Clean Elections Act. The university's goals

in Southworth and the government's goals in funding

clean elections are similar: Both seek to facilitate free

speech. Moreover, both funding systems protect free

speech rights by requiring viewpoint neutrality in the

allocation of funds and attenuating the connection be-

tween the payers of funds and the message communicated.

The principles of Buckley — that government may use

public funds to finance political speech — and Southworth —

that viewpoint neutrality in the allocation of funds ade-

quately safeguards First Amendment rights — support the

conclusion that collecting a surcharge on civil and criminal

because the money was distributed in a neutral manner by an agency

that had “no social, political, or ideological character.” Southworth, 529

U:S. at 240 (Souter, J., concurring). The same is true in this case.

lla

fines to fund political campaigns does not violate the First

Amendment.

122 But May counters that the Act is not viewpoint

neutral in two respects. First, he contends that fine payers

are forced to support the viewpoint that public financing of

campaigns represents good public policy. Yet, as Buckley

noted, “every appropriation made by [government] uses

public money in a manner to which some taxpayers

object.” 424 U.S. at 92. For example, taxes from the state’s

general fund are used to pay the salaries of state legisla-

tors, some of whom an individual taxpayer might support

and others whom the taxpayer might not support. Yet no

one would suggest that such payments violate the First

Amendment. But government could not function if taxpay-

ers could refuse to pay taxes if they disagreed with the

government policy or function that the tax supported.‘ See

United States v. Lee, 455 U.S. 252, 260 (1982); see also

Southworth, 529 U.S. at 229. Second, May argues that not

all candidates request and receive campaign funds. But

Southworth’s insistence on viewpoint neutrality focused on

the government’s method of allocating funds, not the

resulting viewpoints being supported. Southworth, 529

U.S. at 233. The method of allocating funds under the

Clean Elections Act is clearly neutral with regard to the

* The State makes considerable use of surcharges to fund various

public programs. See, eg., A.R.S. § 12-116.01(A) (criminal justice

enhancement fund); A.R.S. § 12-116.02 (medical services enhancement

fund); A.R.S. § 12-116.01(B) (fill the gap fund); A.R.S. § 12-116.01(C)

(DNA fund).

12a

ideology or message of any candidate and thus passes

muster under Southworth.’

923 In a final salvo, amicus participant Pacific

Legal Foundation urges that, while “tax dollars .. . may be

spent on expressive activity without violating taxpayers’

First Amendment rights,” the surcharge at issue here is a

fee, not a tax, and therefore must be analyzed differently.

We conclude, however, that whether the surcharge is a tax

or a fee is not dispositive of the issues in this case. Gov-

ernment may no more violate the First Amendment by

imposing a tax than it may by imposing a fee. Moreover,

* May urges that two cases that have invalidated campaign

funding schemes should guide the disposition of this case. We do not

find either case applicable. In Butterworth v. Florida, 604 So.2d 477

(Fla. 1992), the Florida Supreme Court struck down a 1.5% assessment

on some contributions to political parties, which assessment was used

to fund political campaigns. The court held that the assessment

“infringes on First Amendment rights by forcing contributors to decide

between contributing to a party and financing causes or persons with

whom they disagree or not contributing to a party at all.” Id. at 481.

The Florida statute directly burdened political contributions, -which

implicated First Amendment speech and association rights that are not

burdened under the Arizona law.

In Vermont Society of Association. Executives v. Milne, 779 A.2d 20

(Vt. 2001), the Supreme Court of Vermont ruled that a tax on lobbyists

used to fund political campaigns violated the lobbyists’ First Amend-

ment rights. As indicated in 7 4 of this opinion, the tax on lobbyists

formerly contained in the Clean Elections Act was held to be unconsti-

tutional. That ruling has not been appealed and that issue is not before

this court. Moreover, Milne does not assist in the analysis here because,

unlike the lobbyists in that case, the fine payers whose surcharges

funded the Clean Elections Act are a diverse, ephemeral group not

“associated” in any meaningful way and not engaged in any First

Amendment activity.

Because of their dissimilarity to the case before us, neither

Butterworth nor Milne is helpful in resolving this case.

;

13a

we have not discovered any compelled funding case in

which the outcome turned on whether the assessment was

a fee or a tax. Nonetheless, we address the issue briefly.

924 Whether an assessment should be categorized

as a tax or a fee generally is determined by examining

three factors: “(1) the entity that imposes the assessment;

(2) the parties upon whom the assessment is imposed; and

(3) whether the assessment is expended for general public

purposes, or used for the regulation or benefit of the

parties upon whom the assessment is imposed.” Bidart

Bros. v. Cal. Apple Comm’n, 73 F.3d 925, 931 (9th Cir.

1996) (citing San Juan Cellular Tel. Co. v. Pub. Serv.

Comm’n of Puerto Rico, 967 F.2d 683 (1st Cir. 1992)). All

three elements reveal the assessment here as a tax: It was

imposed by citizen initiative on a broad range of payers for

a public purpose. This conclusion does not end the inquiry,

however, for even a tax may be imposed in an unconstitu-

tional way or for an unconstitutional purpose.

125 May argues that if the surcharge is a tax, it is

an unconstitutional “special tax” requiring strict scrutiny

because “it is imposed on less than the whole” population

of Arizona citizens and burdens the First Amendment

rights of a narrowly defined group of taxpayers. May relies

on Minneapolis Star and Tribune Co. v. Minnesota Com-

missioner of Revenue, 460 U.S. 575 (1983), and Murdock v.

Pennsylvania, 319 U.S. 105 (1943), to support his conten-

tion that taxes on discrete groups are invalid because of

the threat that “government will destroy a selected group

of taxpayers by burdensome taxation.” Minneapolis Star,

460 U.S. at 585.

126 We disagree with Mays premise that the

surcharge does not apply to all Arizonans. It does; any

| re ee

14a

person who pays 4 civil or criminal fine is subject to pay

the surcharge. Just as any person choosing to purchase a

new car or other non-exempt good must pay a tax, any

person found to have parked illegally or committed a crime

will face the surcharge. No narrow, discrete group of

taxpayers is at issue in the case before us, nor are the fine

payers exercising a First Amendment right. Minneapolis

Star and Murdock are therefore inapposite.

927 The Clean Elections Act’s surcharge stands in

stark contrast to the tax on paper and ink in Minneapolis

Star and the attempted license tax on door-to-door reli-

gious proselytizing at issue in Murdock. The clean elec-

tions surcharge is not limited to a particular group or

industry, but is assessed against all citizens who pay civil

and criminal fines. Nor does the surcharge burden the

exercise of a First Amendment right; there is no expressive

content inherent in paying a traffic fine. To the extent that

civil and criminal fine payers are compelled to fund the

Clean Elections Act, the safeguard of viewpoint neutrality

in the allocation of funds suffices to mitigate any First

Amendment concerns.

15a

CONCLUSION

9128 In summary, we hold that the surcharge fund-

ing provision of the Citizens Clean Elections Act, A.R.S.

§ 16-940(C), is constitutional. We therefore vacate the

opinion of the court of appeals and reinstate the judgment

in favor of the Real Parties in Interest.

Rebecca White Berch, Justice

CONCURRING:

Charles E. Jones, Chief Justice

Ruth V. McGregor, Vice Chief Justice

Michael D. Ryan, Justice

John Pelander, Judge’

* Pursuant to Arizone Constitution article VI, section 3, the

Honorable John Pelander, Judge of the Arizona Court of Appeals,

Division Two, was designated to sit on this case.

16a

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

STEVE MAY, ) 1 CA-SA 02-0073

sta )

Petitioner, ) DEPARTMENT D

Vv. )

THE HONORABLE COLLEEN ) OPINION

A. McNALLY, Judge of the ;

SUPERIOR COURT OF THE ‘ase 6-17-02

STATE OF ARIZONA in and

‘ ) Amended by Order

for the County of MARICOPA, ) filed 6-19-02

Respondent Judge,

BETSEY BAYLESS, as Secre-

tary of State of the State of

Arizona, acting in her official

capacity; CAROL SPRINGER,

as Treasurer of the State of

Arizona, acting in her official

capacity; and the CITIZENS

CLEAN ELECTIONS COMMIS-

SION; and ARIZONANS FOR

CLEAN ELECTIONS,

Real Parties in Interest.

sak east baa Sat Sat al et a et SP

Petition for Special Action

from the Maricopa County Superior Court

Cause No. CV 2001-006078

The Honorable Colleen A. McNally, Judge

REVERSED

17a

Institute for Justice Arizona Chapter Phoenix

By Clint Bolick

Timothy D. Keller

Thomas P. Liddy

and

Institute for Justice Washington, DC

By William H. Mellor

Scott G. Bullock

Attorneys for Petitioner

Janet Napolitano, Attorney General Phoenix

By Todd F. Lang, Assistant Attorney General

Attorneys for Real Party in Interest — Citizens Clean

Elections Commission

Arizona Center for Law in the Public Interest Phoenix

By Timothy M. Hogan

and

Brennan Center for Justice New York, NY

at New York University School of Law

By Elizabeth Daniel

Attorneys for Real Party in Interest — Arizonans for Clean

Elections

WEISBERG, Judge

M1 Steve May (“Petitioner”) seeks special action review

of the trial court’s decision upholding a provision of the

Citizens Clean Elections Act (the “Act”), which permits

certain fine surcharges to be distributed to political

candidates. See Ariz.Rev.Stat. (“A.R.S.”) § 16-954(C)

(Supp.2001). For the reasons set forth below, we reverse

the trial court’s decision.

18a

BACKGROUND AND PROCEDURAL HISTORY

M2 In the 1998 general election, Arizona voters adopted

the Act by approving initiative Proposition 200. The Act

established a system of campaign finance whereby certain

candidates could receive campaign funds in exchange for

agreeing to limit campaign contributions and expendi-

tures. The Act also lowered the contribution limits for non-

participating candidates and imposed additional reporting

requirements on all candidates.

43 The campaign funds were to be generated from four

different sources: (1) a $5 state income tax check-off; (2) a

dollar-for-dollar income tax credit for contributions to the

fund up to $500 or twenty percent of taxes owed, which-

ever was greater; (3) a $100 annual mandatory fee im-

posed on certain classes of registered lobbyists; and (4) a

ten percent surcharge imposed on persons paying civil and

criminal fines, including those related to the stopping or

standing of motor vehicles. See A.R.S. §§ 16-944, -954(A) to

4 Petitioner is a state legislator who received a parking

ticket and was fined $27, which included a ten percent

surcharge pursuant to the Act. Petitioner refused to pay

the surcharge, claiming that it violated his free speech

guarantees under the First Amendment to the United

States Constitution and Article 2, Sections 6 and 15 of the

Arizona Constitution.’

! The First Amendment to the United States Constitution states,

“Congress shall make no law ... abridging the freedom of speech, or of

the press.... ” The Arizona Constitution, Article 2, Section 6, states,

“Every person may freely speak, write, and publish on all subjects,

(Continued on following page)

19a

95 Petitioner originally brought an action in federal

district court against the Secretary of State and Treasurer

seeking a declaration of the Act’s invalidity. Citizens Clean

Elections Commission and Arizonans for Clean Elections

(“ACE”) intervened as defendants. In March 2001, the

district court dismissed the action for lack of subject

matter jurisdiction on the ground that it challenged a

state tax and therefore should be initiated in state court.

See Lavis v. Bayless, No. CIV 99-1627 (D. Ariz. Mar. 13,

2001).

96 Petitioner re-filed the action in state court in April

2001. The parties stipulated_to the facts and filed cross-

motions for summary judgment. In December 2001, the

trial court granted Petitioner’s motion in part, enjoining

the collection of the lobbyist fee and severing that provi-

sion from the remainder of the Act.’ Petitioner then filed a

petition for special action in the Arizona Supreme Court,

but the court declined to exercise jurisdiction. Petitioner

therefore re-filed his special action petition in this court

against ACE, the Citizens Clean Elections Commission,

and the Secretary of State and Treasurer, as real parties

in interest. Only ACE has filed a response.

being responsible for the abuse of that right.” Section 15 states,

“Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishment inflicted.” Because we conclude that the

Act violates the First Amendment, we do not consider whether the Act

similarly violates the Arizona Constitution.

* The trial court’s order enjoining the collection of the lobbyist fee

and severing that provision from the remainder of the Act has not been

challenged on appeal.

20a

47 This matter involves a purely legal issue that is

appropriate for resolution by special action in this court.

See Univ. of Ariz. Health Scis. Ctr. v. Superior Court, 136

Ariz. 579, 581, 667 P.2d 1294, 1296 (1983) (accepting

special action jurisdiction over matter of important public

interest that turns entirely on legal issues). This case also

presents an important constitutional issue involving the

Act and is a matter of statewide importance. See State ex

rel. Woods v. Block, 189 Ariz. 269, 272, 942 P.2d 428, 431

(1997). Further, there is no adequate remedy by appeal.

See Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of

First Amendment freedoms, for even minimal periods of

time, unquestionably constitutes irreparable injury.”). We

therefore exercise our discretion and accept jurisdiction.

DISCUSSION

G8 We must decide the constitutionality of the provision

of the Act that imposes a ten percent surcharge on all

individuals who incur civil and criminal fines. See A.R.S.

§ 16-954(C). Although “the legislature need not look to an

express grant of authority in order to justify an enact-

ment,” “any exercise of legislative power is subject to the

limitations imposed by the constitution.” Citizens Clean

Elections Comm’n v. Myers, 196 Ariz. 516, 520, { 14, 1 P.3d

706, 710 (2000). A constitutional limitation on the exercise

of legislative power “may be implied by the text of the

constitution or its structure taken as a whole.” Jd. at 521,

q 14, 1 P-3d at 711. “That [the Act] was enacted directly by

the voters rather than by the state legislature does not

change our constitutional analysis. ‘[VJoters may no more

violate the Constitution by enacting a ballot measure than

a legislative body may do so by enacting legislation.’” Serv.

Employees Int'l Union v. Fair Political Practices Comm’n,

2la

955 F.2d 1312, 1314 n.1 (9th Cir. 1992) (second alteration

in original) (quoting Citizens Against Rent Control uv.

Berkeley, 454 U.S. 290, 295 (1981)).

History of Cases

29 Beginning in 1976, the United States Supreme Court

has addressed whether compelled fees similar to those

imposed by the Act violate the First Amendment’s right to

freedom of speech. We begin by examining those cases.

110 Buckley v. Valeo, 424 U.S. 1 (1976), involved the

constitutionality of a portion of a federal act that allowed

taxpayers to designate that one or two of their tax dollars

be paid into a presidential election fund. Jd. at 86. The

money from the fund would then be distributed to quali-

fied political parties. Jd. at 87-90. Taxpayers challenged

the dollar check-off provision because they were not able to

designate particular candidates or parties as recipients of

their money. Jd. at 91. The Court rejected the challenge,

finding that the funding was “like any other appropriation

from the general revenue” and that Congress always used

public money in a manner to which some taxpayers

objected. Id. at 91-92. The Court further commented that

the provision represented an effort to “use public money to

facilitate and enlarge public discussion and participation

in the electoral process.” Jd. at 92-93.

111 In Abood v. Detroit Board of Education, 431 U.S.

209, 234-36 (1977), and Keller v. State Bar of California,

496 U.S. 1, 13-14 (1990), the Court considered the consti-

tutionality of subsidies levied by work-related associations

and whether the subsidies were germane to the purposes

of the associations. In Abood, nonunion public school

teachers challenged an agreement requiring them to pay a

22a

service fee equivalent to union dues. 431 U.S. at 211. The

objecting teachers claimed that the union’s use of the fees

to engage in political speech violated their freedom of

association as guaranteed by the First and Fourteenth

Amendments to the United States Constitution. Id. at 213.

The Supreme Court agreed. It held that requiring teachers

to pay a service fee used “to contribute to political candi-

dates and to express political views unrelated to its duties

as exclusive bargaining representative” was unconstitu-

tional. Id. at 234.

G12 In Keller, the Supreme Court struck down the use of

mandatory state bar dues for political advocacy. 496 U.S.

at 13-14. It held that, although the state bar could fund

activities “germane” to the association’s mission of “regu-

lating the legal profession and improving the quality of

legal services,” it could not fund activities of an ideological

nature that fell outside the scope of regulating the legal

profession. Id.

9713 A few years later, the Supreme Court upheld a

mandatory fee imposed in a university setting. Bd. of

Regents uv. Southworth, 529 U.S. 217, 229-30 (2000).

Students had brought suit against their university, alleg-

ing that an activity fee, which was used to support student

organizations that engaged in political speech, violated

their First Amendment rights. Id. at 221. The Supreme

Court upheld the fee and specifically declined to engage in

the germane analysis applied in Abood and Keller. Id. at

231-32. The Court explained that,

In Abood and Keller, the constitutional rule

took the form of limiting the required subsidy to

speech germane to the purposes of the union or

bar association. The standard of germane speech

as applied to student speech at a university is

POL WS Fite Ne ET Oe

23a

unworkable, however, and gives insufficient pro-

tection both to the objecting students and to the

University program itself... .

The speech the University seeks to encour-

age in the program before us is distinguished not

by discernable limits but by its vast, unexplored

bounds. To insist upon asking what speech is

germane would be contrary to the very goal the

University seeks to pursue. It is not for the Court

to say what is or is not germane to the ideas to be

pursued in an institution of higher learning.

Id.

9114 Determining that students in a university setting

had protectable First Amendment interests, the Court

found that the requirement of viewpoint neutrality in the

program was sufficient to protect those interests. Jd. at

233. Thus, “[wJhen a university requires its students to

pay fees to support the extracurricular speech of other

students, all in the interest of open discussion, it may not

prefer some viewpoints to others:” Jd. Because the univer-

sity program respected the principle of viewpoint neutral-

ity, the Court found the program to be consistent with the

First Amendment. Jd. at 234.

115 Next, in United States v. United Foods, Inc., 533

U.S. 405, 408-12 (2001), the Supreme Court considered

whether a mandatory fee imposed on mushroom handlers

to fund advertisements that promoted mushroom sales in

general violated the First Amendment. United Foods

refused to pay the mandatory fee, claiming that it violated

the First Amendment, id. at 409, and asserting that it

wanted to convey a message that “its brand of mushrooms

was superior to those brands grown by other producers.”

Id. at 411. It complained that it was being forced to pay for

24a

a message that any mushrooms were worth consuming,

regardless of brand. Id.

9116 Before addressing whether the mandatory fee was

constitutional, the Court stated that “a threshold inquiry

must be whether there is some state imposed obligation

which makes group membership less than voluntary; for it

is only the overriding associational purpose which allows

any compelled subsidy for speech in the first place.” Id. at

413. The Court distinguished between cases such as Abood

and Keller, in which objecting members associated for

purposes other than paying the subsidies, and United

Foods, in which mushroom producers did not associate for

any purpose other than to pay the fee. Id. at 411-12. The

Court implied that the latter group was involuntary and

therefore subject to a higher standard of scrutiny than the

former group. Id. at 414. Ultimately, the Court declared

that the mandatory fee imposed on the involuntary group

of mushroom handlers was unconstitutional because the

subsidizing fee was not germane to any associational

purpose beyond the promoted speech itself. Id. at 415-16

(“[T]he expression [the mushroom producers are] required

to support is not germane to a purpose related to an

association independent from the speech itself. . . .”).

Trial Court Decision

17 The trial court relied on Southworth in upholding

the surcharge. The court reasoned that the surcharge,

similar to the activity fee in Southworth, facilitated

viewpoint neutral speech because there was no required

political position that a candidate must adopt in order to

qualify for funding. We, however, find that Southworth is

not applicable here because it merely stated an exception

25a

to the rule rather than the rule itself. That exception was

that, in a university setting, “[t]he standard of germane

speech as applied to student speech ... is unworkable.”

529 U.S. at 231. Accordingly, a university is treated

differently because its mission is to “develop human

resources, to discover and disseminate knowledge, to

extend knowledge and its application beyond the bounda-

ries of its campuses and to serve and stimulate society by

developing in students heightened intellectual, cultural

and humane sensitivities ... and a sense of purpose.” Jd.

at 221 (internal quotation marks omitted). Thus, in that

setting, a court must dispense with the germane analysis

otherwise mandated by Abood and Keller.

118 Here, unlike Southworth, there is no equally com-

pelling interest to promote speech when the individuals

paying the surcharge and the political speech they fund

have no connection. Unlike the students in Southworth

who directly benefitted from the free speech, the surcharge

payers are not directly benefitted. Thus the exception

applicable in a university setting does not apply in this

setting.’ We, therefore, hold that the trial court erred in

applying the principles of Southworth to this case.‘

* Moreover, the activity fees in Southworth funded extracurricular

speech, while here the surcharge funds political campaigns. In fact, the

university policies in Southworth specifically provided that the

activity fee could not be disbursed to groups having a primarily political

orientation or to groups that would use such funds for politically

partisan purposes, see id. at 225-26, whereas the funds here are used

specifically for such purposes.

* We note that, although the mandatory advertising fee in United

Foods arguably benefitted some of the mushroom handlers, the Court

did not apply or even discuss the holding of Southworth, which was

(Continued on following page)

26a

Nature of the Surcharges

419 As discussed in Buckley, our threshold question is

whether the surcharge is more akin to a general tax or to a

regulatory fee. The Court in Buckley implied that, if it

were the former, the surcharge would be constitutional,”

but not if it were the latter. 424 U.S. at 91-92 (noting that

a voluntary tax check-off provision “is like any other

appropriation from the general revenue’).

m20 There is a significant distinction between funding a

political campaign through a general tax and funding it

through a surcharge. An individual who pays a general tax

is paying a fee to generally benefit the community; that

individual does not have an expectation as to how the

funds will be used. Likewise, when the government col-

lects a general tax, it is not collecting the tax for a specific

purpose. If and when the government uses existing reve-

nue to fund political campaigns, there is no violation of

any individual's expectation — the funds already exist.

921 In contrast, an individual who incurs 4 civil or

criminal fine has no expectation that he or she will incur

an additional fee to support political campaigns. That

individual has no choice in whether to fund or how much

to fund such campaigns. In addition, unlike a general tax,

the surcharge is not taken from existing government

decided a year earlier. We determine that the Court omitted South-

worth from its discussion because Southworth applied distinctly to a

university setting that was not present in United Foods. For this

reason, we similarly do not further consider Southworth here.

5 Because we do not find that the surcharges are akin to a general

tax, we need not consider whether the Court in Buckley conclusively

held that a general tax is constitutional under the First Amendment.

27a

funds; instead, it is an additional charge imposed on a

limited group of individuals. We therefore find that the

surcharge is more akin to a regulatory fee than to a

general tax.

122 In reaching this conclusion, we find helpful the

discussion in Bidart Brothers v. California Apple Commis-

sion, 73 F.3d 925, 930 (9th Cir. 1996), concerning the

distinction between a general tax and a regulatory fee:

[The cases] have sketched a spectrum with a

paradigmatic tax at one end and a paradigmatic

fee at the other. The classic “tax” is imposed by a

legislature upon many, or all, citizens. It raises

money, contributed to a general fund, and spent

for the benefit of the entire community. The clas-

sic “regulatory fee” is imposed by an agency upon

those subject to its regulation. It may serve regu-

latory purposes directly by, for example, deliber-

ately discouraging particular conduct by making

it more expensive. Or, it may serve such purposes

indirectly by, for example, raising money placed

in a special fund to help defray the agency’s regu-

lation-related expenses.

Courts facing cases that lie near the middle

of this spectrum have tended (sometimes with

minor differences reflecting the different statutes

at issue) to emphasize the revenue’s ultimate

use, asking whether it provides a general benefit

to the public, of a sort often financed by a general

tax, or whether it provides more narrow benefits

to regulated companies or defrays the agency's

costs of regulation.

Id. (quoting San Juan Cellular Tel. Co. v. Pub. Serv.

Comm’n, 967 F.2d 683, 685 (1st Cir. 1992)). Here, the

surcharge is imposed upon a specific group of individuals,

28a

placed in a special fund, and geared toward a specific

purpose: political campaigns. The participating politicians

directly benefit from the funds. Accordingly, the surcharge

is more like a regulatory fee than a general tax.”

Creation of an Association

423 We next consider whether the individuals who incur

civil and criminal fines thereby become an association and,

if so, whether that association is voluntary. See United

Foods, 533 U.S. at 413 (“[A] threshold inquiry must be

whether there is some state imposed obligation which

makes group membership less than voluntary; for it is

only the overriding associational purpose which allows any

compelled subsidy for speech in the first place.”). United

Foods required that involuntary associations be subject to

a higher standard of scrutiny than voluntary associations.

Id. at 414.

G24 In United Foods, the mushroom handlers were not

part of an organization related to growing or distributing

mushrooms. However, they involuntarily became part of

an association by virtue of their duty to pay the mandatory

advertising fee. Id. at 412-14. We liken the situation in

this case to that in United Foods and find that the indi-

viduals who must pay the civil and criminal fines compose

an involuntary association. Here, the surcharge is imposed

upon a discrete group of individuals — those who incur civil

and criminal fines — who are not otherwise associated.

of the surcharges as a tax and not a regulatory fee. See Lavis, No. CIV

99-1627, slip op. at 4-9.

29a

Thus, these persons are forced to associate by virtue of the

mandatory surcharge.

Germane Speech

125 Having determined that the surcharge is more akin

to a regulatory fee than a general tax and that it creates

an involuntary association, we engage in the next step of

constitutional analysis: determining whether the speech

that is being supported is germane to the purpose of the

association. See Abood, 431 U.S. at 234-36; see also Keller,

496 U.S. at 13-14.’ Petitioner asserts that the trial court

skipped this step and that, had it completed it, the court

would have found that the individuals who are compelled

to pay the surcharge have no connection to the political

speech the surcharge helps fund. Also, Petitioner asserts

that, because the very purpose of the Act is to promote

speech, the surcharge is unconstitutional under United

Foods. See 533 U.S. at 415 (“We have not upheld compelled

subsidies for speech in the context of a program where the

principal object is speech itself.”).

126 ACE counters that the lack of connection between

Petitioner and the message his payment helps fund is an

important distinguishing factor from Abood and Keller, in

which the plaintiffs were compelled to pay dues to organi-

zations with which they were closely associated (a

teacher’s union and a state bar). However, this distinction

does not address the issue of germaneness as the thrust of

the germaneness test set forth in Abood, Keller, and

" Our review necessarily does not consider whether the mandatory

fee supports a laudable goal.

30a

United Foods is that the message must be closely con-

nected or “germane” to the association’s purpose. Because

this standard is not met here, the surcharge is unconstitu-

tional.

427 The individuals who incur a civil or criminal fine do

not have anything in common except their duty to pay the

fine. The political messages the surcharge enables are not

related to any overriding purpose shared by these involun-

tarily associated individuals.

q28 Furthermore, the fee is collected for the sole purpose

of supporting political speech. See Buckley, 424 U.S. at 21

(holding that cont ‘butions to political campaigns are a

form of speech protected by the First Amendment because

such contributions reflect an “expression of support for the

candidate and his views”). Under Abood, Keller, and

United Foods, such a purpose cannot be supported by a

surcharge levied upon an involuntary association.

4129 We find support for our conclusion in the reasoning

of the Florida Supreme Court in State ex rel. Butterworth

v. Republican Party, 604 So.2d 477, 480 (Fla. 1992), which

invalidated on First Amendment grounds an assessment

imposed upon political organizations that was earmarked

for a campaign finance fund:

[Slingling out political parties and associations to

support the fund bears no relationship to the in-

terest advanced. There are equally effective

means of supporting the trust fund without in-

fringing on the appellees’ constitutional rights,

such as devoting a larger percentage of the filing

fees to the fund or supporting the fund through

general revenues.

3la

(Footnote omitted). Similarly, singling out civil and crimi-

nal violators to pay the surcharge bears no relationship to

the interest of funding a particular elections system. The

purpose of the Act may be advanced only through other

means which do not violate these individuals’ rights.

230 We therefore conclude that the surcharge violates the

exercise of free speech under the United States Constitution

because it is imposed upon a discrete group of individuals

who are involuntarily associated and because the supported

speech is not germane to the purpose of that association.

CONCLUSION

231 Based on the holdings of Buckley, Abood, Keller, and

United Foods, we conclude that A.R.S. § 16-954(C), author-

izing a surcharge on civil and criminal fines to finance

state elections, imposes an unconstitutional restraint on

the exercise of free speech. Because it is severable from

the remainder of the Act, the Secretary of State and

Treasurer are enjoined from further implementing and

performing their duties in administering and enforcing

A.R.S. § 16-954(C).

SHELDON H. WEISBERG,

Presiding Judge

CONCURRING:

JON W. THOMPSON, Judge

JOHN C. GEMMILL, Judge

32a

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

12/19/2001

HONORABLE COLLEEN MCNALLY

CV 2001-006078

FILED: 12/21/2001

RICK LAVIS, et al. TIMOTHY DAVID KELLER

as THOMAS I MCCLORY

BETSY BAYLESS, et al.

TIMOTHY M HOGAN

TODD F LAND

RULING

The Court heard oral argument on the parties’ cross-

motions for summary judgment on November 20, 2001.

The Court took the matter under advisement. The Court

now rules as follows:

This matter comes before the Court on cross-motions

for summary judgment. Motions were filed by Plaintiffs,

Defendant-Intervenor Arizonans for Clean Elections, and

Defendant Citizens Clean Elections Commission. The

parties agree that there are no genuine disputed issues of

material fact and have filed a joint statement of facts.

Plaintiffs filed suit requesting declaratory and injunc-

tive relief alleging that the Citizens Clean Election Act

violates the United States and Arizona Constitutions. The

purpose of the act as set forth in A.R.S. § 16-940 is to:

create a clean elections system that will improve

the integrity of Arizona state government by di-

minishing the influence of special-interest money,

33a

will encourage citizen participation in the politi-

cal process, and will promote freedom of speech

under the U.S. and Arizona Constitutions.

The act establishes a system to provide public funding

for candidates for state political offices. The system is

overseen by the Citizens Clean Elections Commission.

After a candidate is certified as qualifying for public

funding, the Commission distributes money to the candi-

date from the Clean Elections Fund. The money for the

fund is generated from four different sources: 1) taxpayers

may voluntarily contribute to the fund by marking a box

at the time of filing state income taxes; 2) qualifying

candidates must collect a certain number of $5 contribu-

tions from registered voters; 3) lobbyists who work for

commercial or for-profit entities must pay an annual $ 100

lobbyist fee; and 4) persons paying civil and criminal fines

must pay a 10% surcharge on the fines.

Plaintiffs challenge the Act based upon the third and

fourth funding sources. Plaintiff Lavin is a lobbyist who

challenges the lobbyist fee. Plaintiff May is a citizen who

challenges the 10% surcharge on a parking ticket that he

received.

Plaintiffs claim that the lobbyist fees and the fine

surcharges are coercive and unconstitutional. Plaintiffs

- allege violations of the Arizona Constitution and the

United States Constitution under the categories of com-

pelled speech, viewpoint discrimination/equal protection,

and prior restraint. The lobbyists’ fees are challenged on

all three grounds, while the fine surcharges are only

challenged on the issue of compelled speech.

34a

Compelled Speech

The First Amendment guarantees freedom of speech

and freedom to refrain from speech. The United States

Supreme Court recognized this concept in upholding the

New Hampshire residents’ objections to being compelled to

display the “Live Free or Die” motto on their license

plates. Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51

L.Ed.2d 752 (1977). Plaintiffs contend that a compelled

contribution to political campaigns equals compelled

political speech.

Several cases support Plaintiffs’ position that com-

pelled associations and payments to support a particular

political message OF viewpoint are prohibited. In each of

these cases, however, the compulsory payments supported

one particular viewpoint that was not germane to the

purpose of the association. In Abood v. Detroit Board of

Education, 431 U.S. 209 (1977) Michigan law required

public school teachers to pay union dues. The teachers

objected to the use of their fees to contribute to political

candidates and to express political views unrelated to

collective bargaining activities. In Keller v. State Bar of

California, 496 U.S. 1 (1990) lawyers objected to their

mandatory bar dues being used to fund ideological activi-

ties outside the scope of regulating the legal profession. In

United States and Dept of Agriculture v. United Foods,

Inc., 121 S.Ct. 2334, 2001 W.S. LEXIS 4904 (2001), the

mushroom handlers objected to mandatory payments to

support the mushroom industry.

The Clean Elections Act does not compel funding for a

particular viewpoint or ideology. Although participating

candidates certainly represent specific viewpoints and

specific political agendas, there is no inquiry as to the

———————— i

S PEF LENE SO BIEN

35a

candidate’s position in order to qualify for funding. Nor

does a contributor associate themselves with a particular

viewpoint by virtue of the compulsory contribution.

Board of Education v. Southworth, 529 U.S. 217.

(2000) involved university students who objected to the

use of their fees to support political activity. The Court

held “the First Amendment permits a public university to

charge its students an activity fee used to fund a program

to facilitate extracurricular student speech if the program

is viewpoint neutral.” Like the activity fee in Southworth,

the Clean Elections Fund facilitates viewpoint neutral

speech. Although Plaintiffs contend that the holding is

limited to the university setting where the free expression

of ideas is encouraged, the Court notes that there is a

similar, legitimate government interests expressed in

A.R.S. § 16-940.

The Court finds that the Clean Elections Act does not

compel speech to support a specific viewpoint or ideology.

Viewpoint Discrimination/Equal Protection

The Clean Elections Act requires commercial and for-

profit lobbyists to pay the lobbyist fee, while non-profit

lobbyists are exempt. Plaintiffs allege that this constitutes

viewpoint discrimination and violates their rights to equal

protection.

There is no evidence to suggest that the lobbyist fee

regulates speech based on content. The differentiation is

based upon the tax status of the lobbyists rather than the

character of interests promoted. There is no evidence to

suggest that similarly situated persons are being treated

36a

differently and that the different treatment is based on the

content of their speech.

Prior Restraint

Plaintiffs allege that the lobbyist fee is a special tax

that singles out and burdens lobbyists for engaging in

protected First Amendment activities. Defendant Citizens

Clean Election Commission contends that there is no prior

restraint because the lobbyists are not prohibited from

lobbying unless they pay the fee. Defendants also note

that there has been no effort to enforce the fee or penalize

lobbyists who have not paid it.

Although many prior restraint cases involve the press,

rather than lobbyists, petitioning the government for a

redress of grievances is clearly expression that is protected

by the First Amendment. Where First Amendment inter-

ests are at stake, heightened scrutiny is required, regard-

less of whether or not the taxation is content neutral.

Like the tax at issue before the Vermont Supreme

Court, the Clean Elections Act presents a “distinct, inde-

pendent tax si ling out a discrete group of First Amend-

ment speakers.” Vermont Society of Association Executive,

et al v. Milne, 2001 Vt LEXIS 179 (Vt. June 8, 2001), at 22.

Although Defendant presents compelling reasons that the

tax is related to legitimate public interests, the State does

not present any justification for the burden of those

interests to be borne by a § ‘al tax on lobbyists. There is

no claim that the tax is related to defraying the costs of

administering lobbying activities.

Defendant Citizens for Clean Elections contends that

there is no prior constraint because lobbyists are not

OCR PSUR ser begs

37a

prohibited from lobbying if they do not pay the fee, and

that the only enforcement mechanism is an administrative

action to collect the debt. The Court finds that the exis-

tence of the law creates a prohibition for any lobbyist who

respects the law.

The Court finds that A.R.S. §16-944 imposes an

unconstitutional prior restraint on the exercise of free

speech under Article 2 § 6 and § 15 of the Arizona Consti-

tution and the First Amendment of the United States

Constitution.

The Court finds that the remaining sections of the

Clean Elections Act are Constitutional.

The Court finds that the unconstitutional portion of

the Act is severable from the remainder of the Act. A.R.S.

§ 16-960 supports the finding of severability, and the

Court further finds that the purpose and function of the

act is met without the lobbyist fee as a funding source.

IT IS ORDERED granting Plaintiffs’ motion for

summary judgment as to Counts III and VII. Accordingly,

IT IS ORDERED enjoining Defendants from further

implementing and performing their duties in administer-

ing and enforcing A.R.S. § 16-944.

IT IS ORDERED denying the remainder of Plaintiffs’

motion for summary judgment. -

IT IS ORDERED granting Defendant-Intervenor

Arizonans for Clean Elections and Defendant Citizens

Clean Elections Commissions’ motions for summary

judgment as to Counts I, II, IV, V, VI, and VIII.

—___ "ae

38a

IT IS ORDERED denying Defendants’ motions for

summary judgment as to Counts III and VII.

39a

A.R.S. § 16-940 (2002)

§ 16-940. Findings and declarations

A. The people of Arizona declare our intent to create

a clean elections system that will improve the integrity of

Arizona state government by diminishing the influence of

special-interest money, will encourage citizen participation

in the political process, and will promote freedom of speech

under the U.S. and Arizona Constitutions. Campaigns will

become more issue-oriented and less negative because

there will be no need to challenge the sources of campaign

money.

B. The people of Arizona find that our current

election-financing system:

1. Allows Arizona elected officials to accept large

campaign contributions from private interests over which

they have governmental jurisdiction;

2. Gives incumbents an unhealthy advantage

over challengers;

3. Hinders communication to voters by many

qualified candidates;

4. Effectively suppresses the voices and influ-

ence of the vast majority of Arizona citizens in favor of a

small number of wealthy special interests;

5. Undermines public confidence in the integrity

of public officials;

6. Costs average taxpayers millions of dollars in

the form of subsidies and special privileges for campaign

contributors;

40a

7. Drives up the cost of running for state office,

discouraging otherwise qualified candidates who lack

personal wealth or access to special-interest funding; and

8. Requires that elected officials spend too much

of their time raising funds rather than representing the

public.

——$—___—

§ 16-941. Limits on spending and contributions for

political campaigns

A. Notwithstanding any law to the contrary, a

participating candidate:

1. Shall not accept any contributions, other than

a limited number of five-dollar qualifying contributions as

specified in section 16-946 and early contributions as

specified in section 16-945, except in the emergency

situation specified in section 16-954, subsection F.

9. Shall not make expenditures of more than a

total of five hundred dollars of the candidate’s personal

monies for a candidate for legislature or more than one

thousand dollars for a candidate for statewide office.

3 Shall not make expenditures in the primary

election period in excess of the adjusted primary election

spending limit.

4. Shall not make expenditures in the general

election period in excess of the adjusted general election

spending limit.

5. Shall comply with section 16-948 regarding

campaign accounts and section 16-953 regarding returning

4la

unused monies to the citizens clean election fund de-

scribed in this article.

B. Notwithstanding any law to the contrary, a

nonparticipating candidate:

1. Shall not accept contributions in excess of an

amount that is twenty percent less than the limits speci-

fied in section 16-905, subsections A through G, as ad-

justed by the secretary of state pursuant to section 16-905,

subsection J. Any violation of this paragraph shall be

subject to the civil penalties and procedures set forth in

section 16-905, subsections L through P and section 16-

924. —

2. Shall comply with section 16-958 regarding

reporting, including filing reports with the secretary of

state indicating whenever (A) expenditures other than

independent expenditures on behalf of the candidate, from

the beginning of the election cycle to any date up to pri-

mary election day, exceed seventy percent of the original

primary election spending limit applicable to a participat-

ing candidate seeking the same office, or (B) contributions

to a candidate, from the beginning of the election cycle to

any date during the general election period, less expendi-

tures made from the beginning of the election cycle

through primary election day, exceed seventy percent of

the original general election spending limit applicable to a

participating candidate seeking the same office.

C. Notwithstanding any law to the contrary, a

candidate, whether participating or nonparticipating:

1. If and only if specified in a written agreement

signed by the candidate and one or more opposing

candidates and filed with the citizens clean elections

42a

commission, shall not make any expenditure in the pri-

mary or general election period exceeding an agreed-upon

amount lower than spending limits otherwise applicable

by statute.

29. Shall continue to be bound by all other

applicable election and campaign finance statutes and

rules, with the exception of those provisions in express OF

clear conflict with the provisions of this article.

D. Notwithstanding any law to the contrary, any

person who makes independent expenditures related to a

particular office cumulatively exceeding five hundred

dollars in an election cycle, with the exception of any

expenditure listed in section 16-920 and any independent

expenditure by an organization arising from a communica-

tion directly to the organization’s members, shareholders,

employees, affiliated persons, and subscribers, shall file

reports with the secretary of state in accordance with

section 16-958 so indicating, identifying the office and the

candidate or group of candidates whose election or defeat

is being advocated, and stating whether the person is

advocating election or advocating defeat.

§ 16-942. Civil penalties and forfeiture of office

A. The civil penalty for a violation of any contribu-

tion or expenditure limit in section 16-941 by or on behalf

of a participating candidate shall be ten times the amount

by which the expenditures or contributions exceed the

applicable limit. ie

B. In addition to any other penalties imposed by law,

the civil penalty for a violation by or on behalf of any

43a

candidate of any reporting requirement imposed by this

chapter shall be one hundred dollars per day for candi-

dates for the legislature and three hundred dollars per day

for candidates for statewide office. The penaity imposed by

this subsection shall be doubled if the amount not reported

for a particular election cycle exceeds ten percent of the

adjusted primary or general election spending limit. No

penalty imposed pursuant to this subsection shall exceed

twice the amount of expenditures or contributions not

reported. The candidate and the candidate’s campaign

account shall be jointly and severally responsible for any

penalty imposed pursuant to this subsection.

C. Any campaign finance report filed indicating a

violation of section 16-941, subsections A or B or section

16-941, subsection C, paragraph 1 involving an amount in

excess of ten percent of the sum of the adjusted primary

election spending limit and the adjusted general election

spending limit for a particular candidate shall result in

disqualification of a candidate or forfeiture of office.

D. Any participating candidate adjudged to have

committed a knowing violation of section 16-941, subsec-

tion A or subsection C, paragraph 1 shall repay from the

candidate’s personal monies to the fund all monies ex-

pended from the candidate’s campaign account and shall

turn over the candidate’s campaign account to the fund.

E. All civil penalties collected pursuant to this

article shall be deposited to the fund.

44a

§ 16-943. Criminal violations and penalties

A. A candidate, or any other person acting on behalf

of a candidate, who knowingly violates section 16-941 is

guilty of a Class 1 misdemeanor.

B. Any person who knowingly pays any thing of

value or any compensation for a qualifying contribution as

defined in section 16-946 is guilty of a Class 1 misde-

meanor.

C. Any person who knowingly provides false or

incomplete information on a report filed under section 16-

958 is guilty of a Class 1 misdemeanor.

§ 16-944. Fees imposed on lobbyists

Beginning on January 1, 1999, an annual fee is

imposed on all registered lobbyists representing (A) one or

more persons in connection with a commercial or for-profit

activity except public bodies or (B) a non-profit entity

predominately composed of or acting on behalf of a trade

association or other grouping of commercial or for-profit

entities. The fee shall be in the amount of one hundred

dollars annually per lobbyist and shall be collected by the

secretary of state and transmitted to the state treasurer

for deposit into the fund.

§ 16-945. Limits on early contributions

A. A participating candidate may accept early

contributions only from individuals and only during the

exploratory period and the qualifying period, subject to the

following limitations:

45a

1. Notwithstanding any law to the contrary, no

contributor shall give, and no participating candidate shall

accept, contributions from a contributor exceeding one

hundred dollars during an election cycle.

2. Notwithstanding any law to the contrary,

early contributions to a participating candidate from all

sources for an election cycle shall not exceed, for a candi-

date for governor, forty thousand dollars or, for other

candidates, ten percent of the sum of the original primary

election spending limit and the original general election

spending limit.

3. Qualifying contributions specified in section

16-946 shall not be included in determining whether the

limits in this subsection have been exceeded.

B. Early contributions specified in subsection A of

this section and the candidate’s personal monies specified

in section 16-941, subsection A, paragraph 2 may be spent

only during the exploratory period and the qualifying

period. Any early contributions not spent by the end of the

qualifying period shall be paid to the fund.

C. If a participating candidate has a debt from an

election campaign in this state during a previous election

cycle in which the candidate was not a participating

candidate, then, during the exploratory period only, the

candidate may accept, in addition to early contributions

specified in subsection A of this section, contributions

subject to the limitations in section 16-941, subsection B,

paragraph 1, or may exceed the limit on personal monies

in section 16-941, subsection A, paragraph 2, provided that

such contributions and monies are used solely to retire

such debt.

46a

§ 16-946. Qualifying contributions

A. During the qualifying period, a participating

candidate may collect qualifying contributions, which shall

be paid to the fund.

B. To qualify as a “qualifying contribution,” a contri-

bution must be:

1. Made by a qualified elector es defined in

section 16-121, who at the time of the contribution is

registered in the electoral district of the office the candi-

date is seeking and who has not given another qualifying

contribution to that candidate during that election cycle;

2. Made by a person who is not given anything

of value in exchange for the qualifying contribution;

3. Inthe sum of five dollars, exactly;

4. Received unsolicited during the qualifying

period or solicited during the qualifying period by a person

who is not employed or retained by the candidate and who

is not compensated to collect contributions by the candi-

date or on behalf of the candidate;

5. If made by check or money order, made

payable to the candidate’s campaign committee, or if in

cash, deposited in the candidate's campaign committee’s

account; and

6. Accompanied by a three-part reporting slip

that includes the printed name, registration address, and

signature of the contributor, the name of the candidate for

whom the contribution is made, the date, and the printed

name and signature of the solicitor.

47a

C. A copy of the reporting slip shall be given as a

receipt to the contributor, and another copy shall be

retained by the candidate’s campaign committee. Delivery

of an original reporting slip to the secretary of state shall

excuse the candidate from disclosure of these contributions

on campaign finance reports filed under article 1 of this

chapter.

§ 16-947. Certification as a participating candidate

A. A candidate who wishes to be certified as a

participating candidate shall, before the end of the qualify-

ing period, file an application with the secretary of state,

in a form specified by the citizens clean elections commis-

sion.

B. The application shall identify the candidate, the

office that the candidate plans to seek, and the candidate’s

party, if any, and shall contain the candidate’s signature,

under oath, certifying that:

1. The candidate has complied with the restric-

tions of section 16-941, subsection A during the election

cycle to date.

2. The candidate’s campaign committee and

exploratory committee have filed all campaign finance

reports required under article 1 of this chapter during the

election cycle to date and that they are complete and

accurate.

3. The candidate will comply with the require-

ments of section 16-941, subsection A during the remain-

der of the election cycle and, specifically, will not accept

private contributions.

48a

C. The commission shall act on the application

within one week. Unless, within that time, the commission

denies an application and provides written reasons that all

or part of a certification in subsection B of this section is

incomplete or untrue, the candidate shall be certified as a

participating candidate. If the commission denies an

application for failure to file all complete and accurate

campaign finance reports or failure to make the certifica-

tion in subsection B, paragraph 3 of this section, the

candidate may reapply within two weeks of the commis-

sion’s decision by filing complete and accurate campaign

finance reports and another sworn certification.

§ 16-948. Controls on participating candidates, cam-

paign accounts

A. A participating candidate shall conduct all finan-

cial activity through a single campaign account of the

candidate’s campaign committee. A participating candidate

shall not make any deposits into the campaign account

other than those permitted under sections 16-945 or 16-

946.

B. A candidate may designate other persons with

authority to withdraw funds from the candidate’s cam-

paign account. The candidate and any person 50 desig-

nated shall sign a joint statement under oath promising to

comply with the requirements of this title.

C. The candidate or a person authorized under

subsection B of this section shall pay monies from a

participating candidate’s campaign account directly to the

person providing goods or services to the campaign and

shall identify, on a report filed pursuant to article 1 of this

49a

chapter, the full name and street address of the person

and the nature of the goods and services and compensation

for which payment has been made. Notwithstanding the

previous sentence, a campaign committee may establish

one or more petty cash accounts, which in aggregate shall

not exceed one thousand dollars at any time. No single

expenditure shall be made from a petty cash account

exceeding one hundred dollars.

D. Monies in a participating candidate’s campaign

account shall not be used to pay fines or civil penalties, for

costs or legal fees related to representation before the

commission, or for defense of any enforcement action

under this chapter. Nothing in this subsection shall

prevent a participating candidate from having a legal

defense fund.

§ 16-949. Caps on spending from citizens clean elec-

tions fund

A. The commission shall not spend, on al! costs

incurred under this article during a particular calendar

year, more than five dollars times the number of Arizona

resident personal income tax returns filed during the

previous calendar year. Tax reductions and tax credits

awarded to taxpayers pursuant to section 16-954, subsec-

tions A and B shall not be considered costs incurred under

this article for purposes of this section. The commission

may exceed this limit during a calendar year, provided

that it is offset by an equal reduction of the limit during

another calendar year during the same four-year period

beginning January 1 immediately after a gubernatorial

election.

50a

B. The commission may use up to ten percent of the

amount specified in subsection A of this section for reason-

able and necessary expenses of administration and en-

forcement, including the activities specified in section 16-

956, subsection A, paragraphs 3 through 7 and subsections

B and C. Any portion of the ten percent not used for this

purpose shall remain in the fund.

C. The commission shall apply ten percent of the

amount specified in subsection A of this section for reason-

able and necessary expenses associated with voter educa-

tion, including the activities specified in section 16-956,

subsection A.

D. The state treasurer shall administer a citizens

clean election fund from which costs incurred under this

article shall be paid. The auditor general shall review the

monies in, payments into, and expenditures from the fund

no less often than every four years.

§ 16-950. Qualification for clean campaign funding

A. A candidate who has made an application for

certification may also apply, in accordance with subsection

B of this section, to receive funds from the citizens clean

elections fund, instead of receiving private contributions.

B. To receive any clean campaign funding, the

candidate must present to the secretary of state no later

than one week after the end of the qualifying period a list

of names of persons who have made qualifying contribu-

tions pursuant to section 16-946 on behalf of the candi-

date. The list shall be divided by county. At the same time,

the candidate must tender to the secretary of state the

5la

original reporting slips identified in section 16-946, sub-

section C for persons on the list and an amount equal to

the sum of the qualifying contributions collected. The

secretary of state shall deposit the amount into the fund.

C. The secretary of state shall select at random a

sample of five percent of the number of non-duplicative

names on the list and forward facsimiles of the selected

reporting slips to the county recorder for the counties of

the addresses specified in the selected slips. Within ten

days, the county recorders shall provide a report to the

secretary of state identifying as disqualified any slips that

are unsigned or undated or that the recorder is unable to

verify as matching a person who is registered to vote, on

the date specified on the slip, inside the electoral district

of the office the candidate is seeking. The secretary of

state shall multiply the number of slips not disqualified by

twenty, and if the result is greater than one hundred and

ten percent of the quantity required, shall approve the

candidate for funds, and if the result is less than ninety

percent of the quantity required, shall deny the applica-

tion for funds. Otherwise, the secretary of state shall

forward facsimiles of all of the slips to the county record-

ers for verification, and the county recorders shall check

all slips in accordance with the process above.

D. To qualify for clean campaign funding, a candi-

date must have been approved as a participating candi-

date pursuant to section 16-947 and have obtained the

following number of qualifying contributions:

1. For a candidate for legislature, two hundred.

2. For candidate for mine inspector, five hun-

dred.

52a

3. For a candidate for treasurer, superintendent

of public instruction, or corporation commission, one

thousand five hundred.

4. For a candidate for secretary of state or

attorney general, two thousand five hundred.

5. For a candidate for governor, four thousand.

E. To qualify for clean campaign funding, a candi-

date must have met the requirements of this section and

either be an independent candidate or meet the following

standards:

1. To qualify for funding for a party primary

election, a candidate must have properly filed nominating

papers and nominating petitions with signatures pursuant

to chapter 3, articles 2 and 3 of this title in the primary of

a political organization entitled to continued representa-

tion on the official ballot in accordance with section 16-

804.

2. To qualify for clean campaign funding for a

general election, a candidate must be a party nominee of

such a political organization.

§ 16-951. Clean campaign funding

A. At the beginning of the primary election period,

the commission shall pay from the fund to the campaign

account of each candidate who qualifies for clean cam-

paign funding:

1. For a candidate who qualifies for clean

campaign funding for a party primary election, an amount

equal to the original primary election spending limit;

53a

2. For an independent candidate who qualifies

for clean campaign funding, an amount equal to seventy

percent of the sum of the original primary election spend-

ing limit and the original general election spending limit;

3. For a qualified participating candidate who is

unopposed for an office in that candidate’s primary, in the

primary of any other party, and by any opposing inde-

pendent candidate, an amount equal to five dollars times

the number of qualifying contributions for that candidate

certified by the commission.

B. At any time after the first day of January of an

election year, any candidate who has met the require-

ments of section 16-950 may sign and cause to be filed a

nomination paper in the form specified by section 16-311,

subsection A, with a nominating petition and signatures,

instead of filing such papers after the earliest time set for

filing specified by that subsection. Upon such filing and

verification of the signatures, the commission shall pay

the amount specified in subsection A of this section

immediately, rather than waiting for the beginning of the

primary election period.

C. At the beginning of the general election period,

the commission shall pay from the fund to the campaign

account of each candidate who qualifies for clean cam-

paign funding for the general election, except those candi-

dates identified in subsection A, paragraphs 2 or 3 or

subsection D of this section, an amount equal to the

original general election spending limit.

D. At the beginning of the general election period,

the commission shall pay from the fund to the campaign

account of a qualified participating candidate who has not

54a

received funds pursuant to subsection A, paragraph 3 of

this section and who is unopposed by any other party

nominee or any opposing independent candidate an

amount equal to five dollars times the number of qualify-

ing contributions for that candidate certified by the com-

mission.

E. The special original general election spending

limit, for a candidate who has received funds pursuant to

subsection A, paragraphs 2 or 3 or subsection D of this

section, shall be equal to the amount that the commission

is obligated to pay to that candidate.

§ 16-952. Equal funding of candidates

A. Whenever during a primary election period a

report is filed, or other information comes to the attention

of the commission, indicating that a nonparticipating

candidate who is not unopposed in that primary has made

expenditures during the election cycle to date exceeding

the original primary election spending limit, including any

previous adjustments, the commission shall immediately

pay from the fund to the campaign account of any partici-

pating candidate in the same party primary as the non-

participating candidate an amount equal to any excess of

the reported amount over the primary election spending

limit, as previously adjusted, and the primary election

spending limit for all such participating candidates shall

be adjusted by increasing it by the amount that the com-

mission is obligated to pay to a participating candidate.

B. Whenever during a general election period a

report has been filed, or other information comes to the

attention of the commission, indicating that the amount a

55a

nonparticipating candidate who is not unopposed has

received in contributions during the election cycle to date

less the amount of expenditures the nonparticipating

candidate made through the end of the primary election

period exceeds the original general election spending limit,

including any previous adjustments, the commission shall

immediately pay from the fund to the campaign account of

any participating candidate qualified for the ballot and

seeking the same office as the nonparticipating candidate

an amount equal to any excess of the reported difference

over the general election spending limit, as previously

adjusted, and the general election spending limit for all

such participating candidates shall be adjusted by increas-

ing it by the amount that the commission is obligated to

pay to a participating candidate.

C. For purposes of subsections A and B of this

section the following expenditures reported pursuant to

this article shall be treated as follows:

1. Independent expenditures against a partici-

pating candidate shall be treated as expenditures of each

opposing candidate, for purpose of subsection A of this

section, or contributions to each opposing candidate, or

purpose of subsection B of this section.

2. Independent expenditures in favor of one or

more nonparticipating opponents of a participating candi-

date shall be treated as expenditures of those nonpartici-

pating candidates, for purpose of subsection A of this

section, or contributions to those nonparticipating candi-

dates, for purpose of subsection B of this section.

3. Independent expenditures in favor of a

participating candidate shall be treated, for every oppos-

ing participating candidate, as though the independent

56a

expenditures were an expenditure of a nonparticipating

opponent, for purpose of subsection A of this section, or a

contribution to a nonparticipating opponent, for purpose of

subsection B of this section.

4. Expenditures made during the primary

election period by or on behalf of an independent candi-

date or a nonparticipating candidate who is unopposed in

a party primary, shall be treated as though made during

the general election period, and equalizing funds pursuant

to subsection B of this section shall be paid at the start of

the general election period.

5. Expenditures made before the general elec-

tion period that consist of a contract, promise, or agree-

ment to make an expenditure during the general election

period resulting in an extension of credit shall be treated

as though made during the general election period, and

equalizing funds pursuant to subsection B of this section

shall be paid at the start of the general election period.

6. Expenditures for or against a participating

candidate promoting or opposing more than one candidate

who are not running for the same office shall be allocated

by the commission among candidates for different offices

based on the relative size or length and relative promi-

nence of the reference to candidates for different offices.

D. Upon applying for citizen funding pursuant to

section 16-950, a participating candidate for legislature in

a one-party-dominant legislative district who is qualified

for clean campaign funding for the party primary election

of the dominant party may choose to reallocate a portion of

funds from the general election period to the primary

election period. At the beginning of the primary election

period, the commission shall pay from the fund to the

57a

campaign account of a participating candidate who makes

this choice an extra amount equal to fifty percent of the

original primary election spending limit, and the original

primary election spending limit for the candidate who

makes this choice shall be increased by the extra amount.

For a primary election in which one or more participating

candidates have made this choice, funds shall be paid

under subsections A and B of this section only to the

extent of any excess over the original primary election

spending limit as so increased. If a participating candidate

who makes this choice becomes qualified for clean cam-

paign funding for the general election, the amount the

candidate receives at the beginning of the general election

period shall be reduced by the extra amount received at

the beginning of the primary election period, and the

original general election spending limit for that candidate

shall be reduced by the extra amount. For a general

election in which a participating candidate has made this

choice, funds shall be paid under subsections A and B of

this section only to the extent of any excess over the

original general election spending limit, without such

reduction, unless the candidate who has made this choice

is the only participating candidate in the general election,

in which case such funds shall be paid to the extent of

excess over the original general election spending limit

with such reduction. For purpose of this subsection, a one-

party-dominant legislative district is a district in which

the number of registered voters registered in the party

with the highest number of registered voters exceeds the

number of registered voters registered to each of the other

parties by an amount at least as high as ten percent of the

total number of voters registered in the district. The

status of a district as a one-party-dominant legislative

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district shall be determined as of the beginning of the

qualifying period.

E. If an adjusted spending limit reaches three times

the original spending limit for a particular election, then

the commission shall not pay any further amounts from

the fund to the campaign account of any participating

candidate, and the spending limit shall not be adjusted

further.

§ 16-953. Return of monies to the citizens clean elec-

tions fund

A. At the end of the primary election period, a

participating candidate who has received monies pursuant

to section 16-951, subsection A, paragraph 1 shall return

to the fund all monies in the candidate’s campaign account

above an amount sufficient to pay any unpaid bills for

expenditures made during the primary election period and

for goods or services directed to the primary election.

B. At the end of the general election period, a

participating candidate shall return to the fund all monies

in the candidate’s campaign account above an amount

sufficient to pay any unpaid bills for expenditures made

before the general election and for goods or services

directed to the general election.

Cc. A participating candidate shall pay all uncon-

tested and unpaid bills referenced in this section no later

than thirty days after the primary or general election. A

participating candidate shall make monthly reports to the

commission concerning the status of the dispute over any

contested bills. Any monies in a candidate’s campaign

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account after payment of bills shall be returned promptly

to the fund.

D. Ifa participating candidate is replaced pursuant

to section 16-343, and the replacement candidate files an

oath with the secretary of state certifying to section 16-

947, subsection B, paragraph 3, the campaign account of

the participating candidate shall be transferred to the

replacement candidate and the commission shall certify

the replacement candidate as a participating candidate

without requiring compliance with section 16-950 or the

remainder of section 16-947. If the replacement candidate

does not file such an oath, the campaign account shall be

liquidated and all remaining monies returned to the fund.

§ 16-954. Clean elections tax reduction; return of

excess monies

A. For tax years beginning on or after January 1,

1998, a taxpayer who files on a state income tax return

form may designate a five-dollar voluntary contribution

per taxpayer to the fund by marking an optional check-off

box on the first page of the form. A taxpayer who checks

this box shall receive a five-dollar reduction in the amount

of tax, and five dollars from the amount of taxes paid shall

be transferred by the department of revenue to the fund.

The department of revenue shall provide check-off boxes,

identified as the clean elections fund tax reduction, on the

first page of income tax return forms, for designations

pursuant to this subsection.

B. Any taxpayer may make a voluntary donation to

the fund by designating the fund on an income tax return

form filed by the individual or business entity or by

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making a payment directly to the fund. Any taxpayer

making a donation pursuant to this subsection shall

receive a dollar-for-dollar tax credit not to exceed twenty

percent of the tax amount on the return or five hundred

dollars per taxpayer, whichever is higher. Donations made

pursuant to this section are otherwise not tax deductible

and cannot be designated as for the benefit of a particular

candidate, political party, or election contest. The depart-

ment of revenue shall transfer to the fund all donations

made pursuant to this subsection. The department of

revenue shall provide a space, identified as the clean

elections fund tax credit, on the first page of income tax

return forms, for donations pursuant to this subsection.

C. Beginning January 1, 1999, an additional sur-

charge of ten percent shall be imposed on all civil and

criminal fines and penalties collected pursuant to section

12-116.01 and shall be deposited into the fund.

D. At least once per year, the commission shall

project the amount of monies that the fund will collect

over the next four years and the time such monies shall

become available. Whenever the commission determines

that the fund contains more monies than the commission

determines that it requires to meet current debts plus

expected expenses, under the assumption that expected

expenses will be at the expenditure limit in section 16-949,

subsection A, and taking into account the projections of

collections, the commission shall designate such monies as

excess monies and so notify the state treasurer, who shall

thereupon return the excess monies to the general fund.

E. At least once per year, the commission shall

project the amount of citizen funding for which all candi-

dates will have qualified pursuant to this article for the

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following calendar year. By the end of each year, the

commission shall announce whether the amount that the

commission plans to spend the following year pursuant to

section 16-949, subsection A exceeds the projected amount

of citizen funding. If the commission determines that the

fund contains insufficient monies or the spending cap

would be exceeded were all candidate’s accounts to be fully

funded, then the commission may include in the an-

nouncement specifications for decreases in the following

parameters, based on the commission’s projections of

collections and expenses for the fund, made in the follow-

ing order:

1. First, the commission may announce a de-

crease in the matching cap under section 16-952, subsec-

tion E from three times to an amount between three and

one times.

2. Next, the commission may announce that the

fund will provide equalization monies under section 16-

952, subsections A and B as a fraction of the amounts

there specified.

3. Finally, the commission may announce that

the fund will provide monies under section 16-951 as a

fraction of the amounts there specified.

F. If the commission cannot provide participating

candidates with all monies specified under sections 16-951

and 16-952, as decreased by any announcement pursuant

to subsection E of this section, then the commission shall

allocate any reductions in payments proportionately

among candidates entitled to monies and shall declare an

emergency. Upon declaration of an emergency, a partici-

pating candidate may accept private contributions to bring

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the total monies received by the candidate from the fund

and from such private contributions up to the adjusted

spending limits, as decreased by any announcement made

pursuant to subsection E of this section.

§ 16-955. Citizens clean election commission; structure

A. The citizens clean elections commission is estab-

lished consisting of five members. No more than two

members of the commission shall be members of the same

political party. No more than two members of the commis-

sion shall be resident of the same county. No one shall be

appointed as a member who does not have a registration

pursuant to chapter 1 of this title that has been continu-

ously recorded for at least five years immediately preced-

ing appointment with the same political party or as an

independent.

B. The commission on appellate court appointments

shall nominate candidates for vacant commissioner posi-

tions who are committed to enforcing this article in an

honest, independent, and impartial fashion and to seeking

to uphold public confidence in the integrity of the electoral

system. Each candidate shall be a qualified elector who

has not, in the previous five years in this state, been

appointed to, been elected to, or run for any public office,

including precinct committeeman, or served as an officer

of a political party.

C. Initially, the commission on appellate court

appointments shall nominate the five slates, each having

three candidates, before January 1, 1999. No later than

February 1, 1999, the governor shall select one candidate

from one of the slates to serve on the commission for a

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term ending January 31, 2004. Next, the highest-ranking

official holding a statewide office who is not a member of

the same political party as the governor shall select one

candidate from another one of the slates to serve on the

commission for a term ending January 31, 2003. Next, the

second-highest-ranking official holding a statewide office

who is a member of the same political party as the gover-

nor shall select one candidate from one of the three re-

maining slates to serve on the commission for a term

ending January 31, 2002. Next, the second-highest-

ranking official holding a statewide office who is not a

member of the same political party as the governor shall

select one candidate from one of the two remaining slates

to serve on the commission for a term ending January 31,

2001. Finally, the third-highest-ranking official holding a

statewide office who is a member of the same political

party as the governor shall elect oné candidate from the

last slate to serve on the commission for a term ending

January 31, 2000. For purpose of this section, the ranking

of officials holding statewide office shall be governor,

secretary of state, attorney general, treasurer, superinten-

dent of public instruction, corporation commissioners in

order of seniority, mine inspector, the members of the

supreme court in order of seniority, senate majority and

minority leaders, and house majority and minority lead-

ers.

D. One commissioner shall be appointed for a five-

year term beginning February 1 of every year beginning

with the year 2000. The commission on appellate court

appointments shall nominate one slate of three candidates

before January 1 of each year beginning in the year 2000,

and the governor and the highest-ranking official holding

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a statewide office who is not a member of the same politi-

cal party as the governor shall alternate filling such

vacancies. The vacancy in the year 2000 shall be filled by

the governor.

E. Members of the commission may be removed by

the governor, with concurrence of the senate, for substan-

tial neglect of duty, gross misconduct in office, inability to

discharge the powers and duties of office, or violation of

this section, after written notice and opportunity for a

response.

F If a commissioner does not complete his or her

term of office for any reason, the commission on appellate

court appointments shall nominate one slate of three

candidates as soon as possible in the first thirty days after

the commissioner vacates his or her office and a replace-

ment shall be selected from the slate within thirty days of

nomination of the slate. The highest-ranking official

holding a statewide office who is a member of the political

party of the official who nominated the commissioner who

vacated office shall nominate the replacement, who shall

serve as commissioner for the unexpired portion of the

term. A vacancy or vacancies shall not impair the right of

the remaining members to exercise all of the powers of the

board.

G. Commissioners are eligible to receive compensa-

tion in an amount of two hundred dollars for each day on

which the commission meets and reimbursement of

expenses pursuant to title 38, chapter 4, article 2.

H. The commissioners shall elect a chair to serve for

each calendar-year period from among their members

whose terms expire after the conclusion of that year. Three

commissioners shall constitute a quorum.

65a

I. A member of the commission shall serve no more

than one term and is not eligible for reappointment. No

commissioner, during his or her tenure or for three years

thereafter, shall seek or hold any other public office, serve

as an officer of any political committee, or employ or be

employed as a lobbyist.

J. The commission shall appoint an executive direc-

tor who shall not be a member of the commission and who

shall serve at the pleasure of the commission. The execu-

tive director is eligible to receive compensation set by the

board within the range determined under section 38-611.

The executive director, subject to title 41, chapter 4,

articles 5 and 6, shall employ, determine the conditions of

employment, and specify the duties of administrative,

secretarial, and clerical employees as the director deems

necessary.

§ 16-956. Voter education and enforcement duties

A. The commission shall:

1. Develop a procedure for publishing a docu-

ment or section of a document having a space of predefined

size for a message chosen by each candidate. For the

document that is mailed before the primary election, the

document shall contain the names of every candidate for

every statewide and legislative district office in that

primary election without regard to whether the candidate

is a participating candidate or a nonparticipating candi-

date. For the document that is mailed before the general

election, the document shall contain the names of every

candidate for every statewide and legislative district office

in that general election without regard to whether the

a eSn

tein tneee eereeneencemnacaeeee een

66a

candidate is a participating candidate or a nonparticipat-

ing candidate. The commission shall mail one copy of each

document to every household that contains a registered

voter. For the document that is mailed before the primary

election, the mailing may be made over a period of days

but shall be mailed in order to be delivered to households

before the earliest date for receipt by registered voters of

any requested early ballots for the primary election. The

commission may mail the second document over a period

of days but shall mail the second document in order to be

delivered to households before the earliest date for receipt

by registered voters of any requested early ballots for the

general election. The primary election and general election

documents published by the commission shall comply with

all of the following:

(a) For any candidate who does not submit a

message pursuant to this paragraph, the document shall

include with the candidate’s listing the words “no state-

ment submitted”.

(b) The document shall have printed on its

cover the words “citizens clean elections commission voter

education guide” and the words “primary election” or

“general election” and the applicable year. The document

shall also contain at or near the bottom of the document

cover in type that is no larger than one-half the size of the

type used for “citizens clean elections commission voter

education guide” the words “paid for by the citizens clean

elections fund”.

document shall be easily distinguishable from the public-

ity pamphlet that is required to be produced by the secre-

tary of state pursuant to section 19-123.

67a

2. Sponsor debates among candidates, in such

manner as determined by the commission. The commis-

sion shall require participating candidates to attend and

participate in debates and may specify by rule penalties

for nonparticipation. The commission shal] invite and

permit nonparticipating candidates to participate in

debates.

3. Prescribe forms for reports, statements,

notices and other documents required by this article.

4. Prepare and publish instructions setting forth

methods of bookkeeping and preservation of records to

facilitate compliance with this article and explaining the

duties of persons and committees under this article.

5. Produce a yearly report describing the com-

mission’s activities and any recommendations for changes

of law, administration or funding amounts and accounting

for monies in the fund.

6. Adopt rules to implement the reporting

requirements of section 16-958, subsections D and E.

7. Enforce the provisions of this article, ensure

that money from the fund is placed in candidate campaign

accounts or otherwise spent as specified in this article and

not otherwise, monitor reports filed pursuant to this

chapter and financial records of candidates as needed to

ensure that equalization monies are paid promptly to

opposing qualified candidates under section 16-952 and

ensure that money required by this article to be paid to

the fund is deposited in the fund.

B. The commission may subpoena witnesses, compel

their attendance and testimony, administer oaths and

affirmations, take evidence and require by subpoena the

“et

68a

production of any books, papers, records or other items

material to the performance of the commission’s duties or

the exercise of its powers.

C. The commission may adopt rules to carry out the

purposes of this article and to govern procedures of the

commission. Commission rule making is exempt from Title

41, Chapter 6, Article 3, except that the commission shall

submit the rules for publication and the secretary of state

shall publish the rules in the Arizona administrative

public meetings, with at least sixty days allowed for

interested parties to comment after the rules are proposed.

D. Based on the results of the elections in the year

2002 or any quadrennial election thereafter, and within six

months after such election, the commission may adopt

rules changing the number of qualifying contributions

required for any office from those listed in section 16-950,

subsection D, by no more than twenty per cent of the

number applicable for the preceding election.

§ 16-957. Enforcement procedure

A. If the commission finds that there is reason to

believe that a person has violated any provision of this

article, the commission shall serve on that person an order

stating with reasonable particularity the nature of the

violation and requiring compliance within fourteen days.

During that period, the alleged violator may provide any

explanation to the commission, comply with the order, or

enter into a public administrative settlement with the

commission.

69a

B. Upon expiration of the fourteen days, if the

commission finds that the alleged violator remains out of

compliance, the commission shall make a public finding to

that effect and issue an order assessing a civil penalty in

accordance with section 16-942, unless the commission

publishes findings of fact and conclusions of law express-

ing good cause for reducing or excusing the penalty. The

violator has fourteen days from the date of issuance of the

order assessing the penalty to appeal to the superior court

as provided in title 12, chapter 7, article 6.

C. Any candidate in a particular election contest who

believes that any Opposing candidate has violated this

article for that election may file a complaint with the

commission requesting that action be taken pursuant to

this section. If the commission fails to make a finding

under subsection A of this section within thirty days after

the filing of such a complaint, the candidate may bring a

civil action in the superior court to impose the civil penal-

ties prescribed in this section.

§ 16-958. Manner of filing reports

A. Any person who has previously reached the dollar

~ amount specified in section 16-941, subsection D for filing

an original report shall file a supplemental report each

time previously unreported independent expenditures

specified by that subsection exceeds one thousand dollars.

Any person who has previously reached the dollar

amou.ts specified in section 16-941, subsection B,

paragraph 2 for filing an original report shall file a sup-

plemental report to declare that previously unreported

expenditures or contributions specified by that paragraph

70a

exceed (1) ten percent of the original primary election

spending limit or twenty-five thousand dollars, whichever

is lower, before the seneral election period, or (2) ten

percent of the original general election spending limit or

twenty-five thousand dollars, whichever is lower, during

the general election period. Such reports shall be filed at

the times specified in subsection B of this section and shall

identify the dollar amount being reported, the candidate,

and the date.

B. Any person who must file an original report

pursuant to section 16-941, subsection B, paragraph 2 or

subsection D, or who must file a supplemental report for

previously unreported amounts pursuant to subsection A

of this section, shall file as follows:

1. Before the beginning of the primary election

period, the person shall file a report on the first of each

month, unless the person has not reached the dollar

amount for filing an original or supplemental report on

that date.

2. Thereafter, except as stated in paragraph 3 of

this subsection, the person shall file a report on any

Tuesday by which the person has reached the dollar

amount for filing an original or supplemental report.

3. During the last two weeks before the primary

election and the last two weeks before the general election,

the person shall file a report within one business day of

reaching the dollar amount for filing an original or sup-

plemental report.

C. Any filing under this article on behalf of a candi-

date may be made by the candidate’s campaign committee.

All candidates shall deposit any check received by and

7la

intended for the campaign and made payable to the

candidate or the candidate’s campaign committee, and all

cash received by and intended for the campaign, in the

candidate’s campaign account before the due date of the

next report specified in subsection B of this section. No

candidate or person acting on behalf of a candidate shall

conspire with a donor to postpone delivery of a donation to

the campaign for the purpose of postponing the reporting

of the donation in any subsequent report.

D. The secretary of state shall immediately notify

the commission of the filing of each report under this

section and deliver a copy of the report to the commission,

and the commission shall promptly mail or otherwise

deliver a copy of each report filed pursuant to this section

to all participating candidates opposing the candidate

identified in section 16-941, subsection B, Paragraph 2 or

subsection D.

E.- Any report filed pursuant to this section or

section 16-916, subsection A, paragraph 1 or subsection B

shall be filed in electronic format. The secretary of state

shall distribute computer software to political committees

to accommodate such electronic filing.

F. During the primary election period and the

general election period, all candidates shall make avail-

able for public inspection all bank accounts, campaign

finance reports, and financial records relating to the

candidate’s campaign, either by immediate disclosure

through electronic means or at the candidate’s campaign

headquarters, in accordance with rules adopted by the

commission.

72a

§ 16-959. Inflationary and other adjustments of dollar

values

A. Every two years, the secretary of state shall

modify the dollar values specified in the following parts of

this article, in the manner specified by section 16-905,

subsection J, to account for inflation: section 16-941,

subsection A, paragraph 2 or subsection D; section 16-942,

subsection B; section 16-944; section 16-945, subsection A,

paragraphs 1 and 2; section 16-948, paragraph C; section

16-954, subsection B; section 16-955, subsection G; and

section 16-961, subsections G and H. In addition, the

secretary of state shall make a similar inflation adjust-

ment by modifying the dollar values in section 16-949,

¥ subsection A and section 16-954, subsection A to the

nearest dollar. In addition, every two years, the secretary

of state shall change the dollar values in section 16-961,

subsections G and H in proportion to the change in the

number of Arizona resident personal income tax returns

filed during the previous calendar year.

B. Based on the results of the elections in the year

2002 or any quadrennial election thereafter, and within six

months after such election, the commission may adopt

rules in a public meeting reallocating funds available to all

candidates between the primary and general elections by

selecting a fraction for primary election spending limits

that is between one third and one half of the spending

limite for the election as a whole. For each office, the

primary election spending limit shall be modified to be the

sum of the primary and general spending limits times the

selected fraction, and the general election spending limit

shall be modified to be the same sum timies one less the

selected fraction.

73a

§ 16-960. Severability

If a provision of this act or its application to any

person or circumstance is held invalid, the invalidity does

not affect other provisions or applications of the act that

can be given effect without the invalid provision or appli-

cation, and to this end the provisions of this act are sever-

able. In any court challenge to the validity of this article,

the commission and Arizonans for clean elections shall

have standing to intervene.

§ 16-961. Definitions

A. The terms “candidate’s campaign committee,”

“contribution,” “expenditures,” “exploratory committee,”

“independent expenditure,” “personal monies,” “political

committee,” and “statewide office” are defined in section

16-901.

B. 1. “Election cycle” means the period between

successive general elections for a particular office.

2. “Exploratory period” means the period begin-

ning on the day after a general election and ending the

day before the start of the qualifying period.

3. “Qualifying period” means the period begin-

ning on the first day of August in a year preceding an

election, for an election for a statewide office, or on the

first day of January of an election year, for an election for

legislator, and ending seventy-five days before the day of

the general election.

4. “Primary election period” means the nine-

week period ending on the day of the primary election.

74a

5. “General election period” means the period

beginning on the day after the primary election and

ending on the day of the general election.

6. For any recall election, the qualifying period

shall begin when the election is called and last for thirty

days, there shall be no primary election period, and the

general election period shall extend from the day after the

end of the qualifying period to the day of the recall elec-

tion. For recall elections, any reference to “general elec-

tion” in this article shall be treated as if referring to the .

recall election.

C. 1. “Participating candidate” means a candidate

who becomes certified as a participating candidate pursu-

ant to section 16-947.

2. “Nonparticipating candidate” means a candi-

date who does not become certified as a participating

candidate pursuant to section 16-947.

3. Any limitation of this article that is applicable

to a participating candidate or a nonparticipating- candi-

date shall also apply to that candidate’s campaign commit-

tee or exploratory committee.

D. “Commission” means the citizens clean elections

commission established pursuant to section 16-955.

E. “Fund” means the citizens clean election fund

defined by this article.

F. 1. “Party nominee” means a person who has been

nominated by a political party pursuant to sections 16-301

or 16-343.

75a

2. “Independent candidate” means a candidate

who has properly filed nominating papers and nominating

petitions with signatures pursuant to section 16-341.

3. “Unopposed,” with reference to an election for

a member of the house of representatives, means opposed

by no more than one other candidate.

G. “Primary election spending limits” means:

1. For a candidate for legislature, ten thousand

dollars.

2. For [sic] candidate for mine inspector, twenty

thousand dollars.

3. For a candidate for treasurer, superintendent

of public instruction, or corporation commission, forty

thousand dollars.

4. For a candidate for secretary of state or

attorney general, eighty thousand dollars.

5. For a candidate for governor, three hundred

eighty thousand dollars.

H. “General election spending limits” means

amounts fifty percent greater than the amounts specified

in subsection G of this section.

I. 1. “Original” spending limit means a_ limit

specified in subsections G and H of this section, as ad-

justed pursuant to section 16-959, or a special amount

expressly set for a particular candidate by a provision of

this title.

76a

2. “Adjusted” spending limit means an original

spending limit as further adjusted to account for reported

overages pursuant to section 16-952.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.