So far, we the people have given Sandra Kennedy $248,000 to run for the Arizona Corporation Commission. But when it came time to answer questions about that money last week, Sandra Kennedy was nowhere to be seen.
A process server was attempting to serve Kennedy with papers demanding she appear at a deposition to discuss her use of Clean Elections money. But, according to his affidavit, Kennedy seemed to be doing her best to dodge service. The server visited Kennedy's house four times over a three-day period, and though he heard the TV, no one came to the door. The windows were covered with paper, so he couldn't see inside. On his final attempt, a man who appeared to be Sandra Kennedy's husband drove up in a Mercedes. But rather than accept service on Kennedy's behalf, Mr. Mercedes pulled out of the driveway and took off.
Kennedy denies hiding from the server. But there's no doubt that one of her allies was doing everything in his power to get out of talking. Before they began haunting Chez Kennedy, process servers managed to deliver a subpoena to Kennedy's fellow Democrat, Sam George. George promptly hired a prominent attorney, Paul Eckstein of Perkins Coie Brown & Bain, to get him off the hook.
First, Eckstein claimed George was too busy. Then Eckstein was too busy. The lawyers seeking to depose George even vowed to keep the questions to two hours or less — and to keep the topics limited strictly to Clean Elections.
Still, last Friday, attorney Eckstein filed a motion for a protective order, arguing that the questions would cause George "significant harm from annoyance, embarrassment, oppression, and undue burden." You'd think they were asking him to submit to a colonoscopy, not a deposition!
With Paul Newman, a Cochise County supervisor, George and Kennedy are running as a slate for the Arizona Corporation Commission: the "Solar Team." (Newman was apparently served without incident.) And here's why the three are suddenly in the hot seat: Their shenanigans could become Exhibit A in a Goldwater Institute lawsuit challenging Arizona's Clean Elections system.
As I first revealed in July, the Solar Team isn't just a catchy slogan. It's also a clever way to take advantage of Arizona's public financing for elections. (See "The Return of Sam Vagenas," July 31.)
The plan was the brainchild of George, a political consultant turned candidate with a history of shady dealings. (Once known as Sam Vagenas, he was linked to forged documents that were leaked to New Times, and other papers, in an attempt to smear then-Attorney General Janet Napolitano.)
George's plan, according to some brave Democratic whistleblowers, was to run as a team with fellow Democrats Paul Newman and Sandra Kennedy. Kennedy and Newman would file as Clean Elections candidates and receive public money; George would finance his own campaign.
But here's where it gets dicey. Clean Elections candidates running statewide get a set amount of money for primary races — $82,000. Unless, that is, they face a big-spending, privately funded opponent. Then, to even the playing field, Clean Elections matches spending up to $248,000.
Fair enough. But in this year's primary, George wasn't running "against" Newman or Kennedy — the three were running as a team. Still, when George poured more than $200,000 into the race, Clean Elections automatically matched that amount for Kennedy and Newman. Coupled with George's spending, that was enough to finance TV commercials promoting the Solar Team — and give the slate a $496,000 jump on future Republican rivals.
I was stunned to learn that such a stunt is, in fact, legal. But I shouldn't have worried too much, because it's also likely unconstitutional.
Nick Dranias, an attorney at the Goldwater Institute, tells me that in June, the Supreme Court's struck down the federal "Millionaire's Amendment," which eased contribution limits for candidates facing wealthy, self-funded opponents.
It used to be that if candidates were facing a John Edwards type who put millions into his own campaign, they'd be allowed to raise more money from individual donors than is normally permitted. But the court said that was unconstitutional. It's long held that spending on political campaigns is a form of free speech — while the state can put limits on candidates' fundraising, it's much dicier to stop them from spending their own money to get elected. In its June decision, the Supes basically said that the Millionaire's Amendment was unfair to millionaires. Just because a candidate is rich shouldn't mean that the fundraising rules change for his opponent. The court called it an unconstitutional "drag" on the millionaire's free speech rights.
The court made just one exception: programs that prevented corruption or the appearance of corruption.
Dranias and his colleagues quickly realized that Arizona had a problem. If raising contribution limits to match the funding advantages of wealthy candidates is unconstitutional, surely so is a state system that guarantees public funding for that purpose.
So the Goldwater Institute sued Clean Elections over its matching funds — and quickly found success. Last month, U.S. District Court Judge Roslyn Silver ruled that Arizona's matching fund provisions are unconstitutional. In hopes of not interfering with the primary election at the last minute, Silver declined to halt payments — but she pledged to continue sorting out the repercussions of her decision in the coming months.
In the meantime, the Goldwater guys read my story about George. Here was proof that the system was broken: Clean Elections wasn't stopping corruption. It was promoting it.
"The ideal is that you win on the merits, or the popularity of your ideas," Dranias says. "You don't win because you've gamed the system. We now know that Clean Elections has encouraged more gamesmanship than what would otherwise be happening."
But a funny thing happened when the litigators attempted to question the Solar Team. Namely, the cockroaches scuttled away from the light. Kennedy, they believe, began hiding behind her paper-covered windows. George had Paul Eckstein fighting tooth and nail.
But they can't run far.
On Monday, Kennedy called me to say that she'd just been served. She said her windows were taped over because the house was being remodeled. "I'm not sure how one could avoid or dodge service — I've been out campaigning," she says. (For the record, Dranias sees it differently. Referring to the process server's sworn statement, Dranias says, "He and I both think a possible explanation is that she was evading service. Although, now that she's been served, I guess it doesn't matter.")
Also on Monday, Judge Roslyn Silver flatly rejected George's motion for a protective order. Never mind his supposed "significant harm from annoyance, embarrassment, oppression, and undue burden." Judge Silver says that he needs to answer some questions.
As of press time, it was unclear whether George would show up. He's a busy guy, after all, and by Monday afternoon, attorney Eckstein had filed yet another appeal with Judge Silver, trying to stop the deposition.
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It seems like a lot of work just to get out of a one-hour session on a single topic, doesn't it? Then again, who knows what will come out when they get this guy under oath.
If they ever do.
SPECIAL WEB UPDATE: After we went to press Tuesday, September 16, Sandra Kennedy and Sam George did, in fact, show up for their depositions as ordered by Judge Silver. Stay tuned for details from the depos and more.