Governor Jan Brewer and the Hypocrites of Clean Elections

Alex Ostroy

Last week, the U.S. Supreme Court blocked Arizona's Clean Elections Commission from distributing "matching funds" to candidates in the 2010 election — meaning that instead of getting up to $2.1 million dollars in public money for the primary campaign, Governor Jan Brewer and challenger Dean Martin will merely get $707,000.

And so last week, of course, Clean Elections supporters went nuts.

Public Campaign, a nonprofit agency that supports government funding for elections, claimed the decision would throw Arizona's election cycle "into chaos." State Clean Elections executive director Todd Lang called it "unfair." Governor Brewer was so freaked out that she sent lawyers to the Clean Elections Commission to beg for a reprieve.

"We are in the midst of an election cycle here, and the Supreme Court drastically changed the rules," Brewer's spokesman told ABC-15 News.

Don't believe it.

Don't believe any of it.

Now, it's true that matching funds have been a key component of Arizona's Clean Elections system for its decade of existence. The idea is simple: In addition to getting a lump sum of public funding for their campaigns, participating candidates get additional money to match the spending by their wealthy opponents.

This year, Governor Brewer faces a challenge from Prescott businessman Buz Mills. When Mills announced he'd be spending $2 million of his own money on the race, Brewer asserts, a windfall of matching funds for her campaign was all but certain.

The only problem? It wasn't. In fact, the writing has been on the wall for almost two years: Matching funds are likely unconstitutional.

In August 2008, U.S. District Court Judge Roslyn Silver first indicated in a ruling that matching funds likely violate the First Amendment.

And even though it took the next year and a half to get to last week's Supreme Court smackdown, there've been plenty of indications that this was coming. Even the lowliest candidates for state representative knew that matching funds were far from certain.

Last September, in fact, according to an affidavit from one candidate, during a training session hosted by Clean Elections voter education manager Michael Becker, Becker was asked about the probability of matching funds being supplied in the 2010 cycle.

"Don't count on it," Becker said.

Yet we're supposed to believe that Governor Brewer had no idea this was coming — and no contingency plan?

Don't forget, the Clean Elections system is optional. Candidates like Brewer have to live by its limits only if they accept its money. Only about half of Republican candidates have over the years. And although that number had been on the increase prior to Judge Silver's initial ruling, I've talked to plenty of candidates who decided not to participate this year after following the court proceedings (and hearing admonitions like Becker's): They knew there was a good chance matching funds wouldn't be around.

So pardon me for doubting that Brewer's team, which includes the sharpest political consultants in town, was utterly clueless.

Far more likely? They knew there was a good chance this would happen, but they simply decided to gamble on the fact that it wouldn't.

And, what the heck: If it did happen, well, they could use their clout to change the rules. Hence last Wednesday's meeting, where Brewer's lawyer, Lisa Hauser, explained how unfair the whole thing was.

But it's interesting to note that, for all her team's bitching and moaning, Brewer wasn't trying to get out of the Clean Elections system.

As Hauser confirms, Brewer has no interest in opting out. (There's no way she can raise $2 million on her own, and I suspect she knows it.)

Instead, she wants to change the rules for staying in. Brewer's plan was to convince Clean Elections that she should be able to have her cake and eat it, too: to keep her Clean Elections money and to raise money from private donors.

"Now that matching funds are not available, something should take its place," Hauser says firmly.

But for all Brewer's conviction, it was a pretty dicey proposition: Basically, the guv was criticizing the U.S. Supreme Court for supposedly changing the rules in the middle of the election cycle — even while pushing for a major rule change of her own.

The hypocrisy is staggering.

But if Arizona's decade-long experiment with public financing for elections has taught us anything, it's that principle has a way of vanishing when money is at stake.

Witness the bizarre behavior of Dean Martin, the state treasurer and yet another Republican running for governor. In 2004, when he was still a state representative, Martin was the lead plaintiff in an Institute for Justice lawsuit, alleging that the Clean Elections system was unconstitutional.

That suit was combined with a more targeted Goldwater Institute challenge in 2008 — the very litigation that led to the Supreme Court's June 8 decision to block matching funds.


Yet guess who decided to accept Clean Elections money for his campaign for governor? None other than Dean Martin.

He had a ready explanation when the Capitol Times asked him about the apparent double standard. The system is stacked against candidates who don't participate, he whined.

Well, sure. But if you don't believe in a guest-worker program, don't hire an illegal immigrant to mow your lawn. If you think a program is unconstitutional, screw your ambitions: You shouldn't take part in it!

Then there's Doug "Q" Quelland. The Republican state representative used Clean Elections money to finance his campaigns in 2002, 2004, 2006, and 2008. But though he was more than happy to take hundreds of thousands of dollars in public funds from the system, he wasn't quite so happy to follow its rules.

Candidates who choose to participate in the "Clean" system agree to certain spending limits. But, locked in a tight race in 2008, Quelland found a clever way around that: He hired a political consultant and paid him secretly through a business account. That allowed him to infuse an extra $15,000 into his campaign.

And that may well have made a difference. Quelland eked out a win with a tiny 553-vote plurality.

Confronted with this evidence, the Clean Elections Commission found that Quelland had committed campaign finance violations. They fined him $30,000 and ordered his removal from office.

That was May 2009. But without providing any good rebuttal to the allegations, Quelland has continued to fight. He filed an appeal of the decision, and then a lawsuit against the Clean Elections Commission and its chairman. He's managed to serve out all of his term so far; he's now trying to block the meeting where a replacement would be chosen to serve out the rest of his term.

In his suit, he accused the Clean Elections Commission of behaving "arbitrarily and capriciously."

But Quelland's dissatisfaction with Clean Elections doesn't extend far enough to opt out of the system.

He's running again in 2010. And once again, he's sticking with the system whose rules he refuses to honor and whose fine he refuses to pay.

Unbelievably, barring action from the commission, he'll once again be getting public funds for his campaign.

In the grand scheme of things, though, Brewer's hypocrisy may be the most galling. She agreed to run as a "Clean" candidate, knowing full well that matching funds might not survive their legal challenge — and knowing that she would not be permitted to raise money elsewhere.

Now, she wants a subsidy from the government and the right to raise private money, too.

Now, complaining bitterly that the rules have changed, she wants to change the rules.

The good news is, the Citizens Clean Commission didn't fall for it.

At its meeting last Wednesday, commissioners said they needed legal advice before they could proceed. And apparently they got it: At a hastily convened meeting Monday, commissioners met with their lawyer for nearly an hour behind closed doors before reconvening the public meeting and, one by one, saying that they didn't see a way to take action on the governor's request.

It was a rather brave decision, really. After all, Brewer had appointed two of the commission's five members. And all the members had expressed shock at the Supreme Court's decision to block funds.

Yet they were in agreement: It was their duty to accept the Supreme Court's directive. Their fight would wait for the appeal.

That, of course, will be too late for Brewer to get her funds. And Hauser was livid.

"You've walked away and turned your backs on participating candidates," she said. "It's disgraceful."

The commissioners tried to defend themselves. They said their ultimate goal was to get the block on matching funds overturned by the Supreme Court — if they act now to aid Brewer, who knows what kind of impact that would have on the Supreme Court?

"Nothing we do can be distracting from goal," said Commissioner Louis Hoffman. "Our position needs to be as consistent as possible. If that means the chips fall where they may, they fall where they may. We have to consider the effect on the litigation and the effect on our credibility . . . Our duty is not helping out 'our' candidates. Our duty is to have an effective system that works for everybody."

He's right. And whether or not you believe in Clean Elections, it's clear that the commission made the right choice by refusing to act.

Brewer's team knew the Supreme Court decision was coming — or, at the very least, they should have known it was coming. They took their chances. And it would have been the ultimate hypocrisy if the system that was designed to give power to the people instead ended up handing the governor's race to the incumbent.


The funniest thing about the events of the past week is that Brewer probably doesn't even need the money. Her challenger Mills has spent millions already and has nothing to show for it: no rise in the polls and little chance of winning. The more that comes out about Mills, from his lack of real plans to allegations he fleeced a business partner, the more Republicans are going to go running to Brewer. So what if she doesn't have money for TV or radio. She's the incumbent; if she plays this thing right, she could be on TV every single day.

And as much as Brewer's people complain that $707,000 is not enough to run a campaign, that's $707,000 just for the primary. Make it to the general election, as every indication says she will, and Brewer automatically gets another $1 million. Since when is $1.7 million an insult?

The sad answer is that $1.7 million is only a pittance when you think you can get $3 million. You can hardly blame Brewer's people for trying. But it was really, really good that the commission said no.

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