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Hobbs, Yee in dispute over who appoints the majority of the Clean Elections Commission

Gov. Katie Hobbs and Treasurer Kimberly Yee are in a dispute over who gets to appoint a new majority to the Citizens Clean Elections Commission later this year. And the decision could have major ramifications because it’s Clean Elections commissioners who will be tasked with enforcing Arizona's new "dark money" disclosure law that voters overwhelmingly approved last year. 

Hobbs is, of course, a Democrat, and Yee is a Republican. Republicans largely opposed the ballot measure that requires campaigns to disclose otherwise anonymous contributions. They’re asking Attorney General Kris Mayes and Solicitor General Joshua Bendor to make the call. 

Jim Small with the Arizona Mirror broke the story and he joined The Show with more.

Full interview

So what is the main concern here? Like that, that Yee could appoint Republicans to the commission who would not enforce this new dark money law?

JIM SMALL: Yeah, I mean, I mean, I think that that is certainly something that could be, could be the case, right. I mean, I think Republicans have, were generally, at least Republicans who are active in politics, were generally, I. I think a little hostile to the idea of requiring dark money disclosure.

They've seen it for a long time, positioned it as, as a free speech issue, and that anonymous campaign spending is part and parcel with free speech. Obviously, voters disagreed, including a large majority of Republican voters, almost 75% of the electorate, approved this ballot measure in November, had overwhelming support.

And, and I think that there is some concern that, you know, whoever is able to appoint three of the five members of this Clean Elections Commission. It's possible that you could have a situation where if, if the Republican is able to appoint the majority of it, the two Republican commissioners and then an independent as Kimberly Yee is proposing that she'd be able to do, that you could end up in a situation where you have three people who are, if not outright hostile, maybe very skeptical of the idea of requiring dark money disclosure and that they could stymie the implementation of, of that new law and of the enforcement mechanisms.

So the commission, we should say, is supposed to be representative. There are two Republicans, two Democrats and an independent on the commission, but who appoints them is, is supposed to go back and forth, right? Like how much control will this commission have over how this new dark money law is carried out? Like how would they stymie it?

SMALL: Well, it, it would be a matter of basically enacting, kind of, basically starting enforcement proceedings, right. The Clean Elections Commission has already approved, kind of what enforcement will look like. They've set up the rules already for, coming into 2024. Exactly what it's gonna look like when a complaint is filed and kind of how they're going to go through their process and handle it. But it's still going to require that the commission, commissioners themselves vote to initiate a proceeding. They're gonna have to vote on then any subsequent penalties that they might decide are warranted.

And, and so, that is, you know, I, I, I think that, that, that is really one of the big concerns going forward. The Clean Elections Commission does a lot of different things for, for voter outreach, for voter education, things like that. This is really the first new and, and, you know, reasonably, I, I think, you know, fairly important job that they've been given to do in a long time. In, you know, over the past 25 years since voters created the Clean Elections Commission, its mission and job has changed as litigation has really limited sort of what their job is and what the, what the Clean Elections Program is allowed to do.

Right. Right. So, OK, so Kimberly Yee has said that she thinks she ought to be able to appoint three of these five commissioners, the two Republicans and the independent. Has Yee said what she would do in regard to this dark money law? Is there any comment there?

SMALL: She's been, you know, I, I think she opposed the idea of the dark money disclosure. She was among the, the litany of Republicans who had, who had come out opposed to the ballot measure last year. So I, you know, certainly her personal views are known. You know, the issue is, you know, really who, who she would place on the commission and, and who Governor Hobbs would place on the commission, if given the opportunity.

You know, and this whole situation, I think it's really bears mentioning that this whole situation is happening because Governor Doug Ducey for the last five years of, of him serving as governor did not appoint anyone to this commission. There are five commissioners, all five of them have had their terms expire. They're all serving long past their terms. One of the members serving six years past his term. This is a problem that very easily really should have been avoided and obviously could have been avoided had the governor done his job and make his appointment. So that way the next appointment after that could happen.

That's so interesting. So that's how we got here. What's the precedent? Like, how is this supposed to work? The Clean Elections Commission has been around for a long time. Shouldn't the answer to who gets to appoint the next person be clear?

SMALL: You would think so, right. Ideally, ideally, the way this works is you have, the governor kicked off the appointment process back in, I think it was in 2000, and appointed the first person. And then in 2001, essentially the way, the way it's supposed to work, is it goes from the governor and then the next highest elected official of the opposing party.

So for a lot of times that was, you know, maybe it was the secretary of state when it was ... or the attorney general, or it was all the way down to at, at one point it was Katie, Katie Hobbs, actually, it was the last person who made an appointment was Katie Hobbs when she was Senate minority leader in 2017, I think.

So, you know, so we're really stretching back there and, and it's supposed to alternate between the governor and the next, the person in the next party, the, the highest ranking official in the other party.

The issue now, of course, is that Katie Hobbs made the last appointment. She's now governor. The argument is, well, the governor should make the next appointment. That's what Katie Hobbs is saying. So she should get to go again. and Kimberly Yee is saying no, no, no. The way it's been handled in the past has been that it's always alternated by party, regardless of who becomes governor. And so they want Attorney General Kris Mayes, and, and her Solicitor General, Joshua Bendor, to issue a formal opinion and say, here is the way we interpret the law and the way we read it.

If, if Kimberly Yee does not get her way, I would fully expect that she will go to court to try to get, get the, get the court system to weigh in and determine exactly how this should work.

Interesting. So, a lawsuit could be at play here. Kris Mayes is also a Democrat. Will that change the way this might play out, you think?

SMALL: I, I think it's, it's always possible, you know, I think that she certainly reads the, reads the law from a more liberal perspective and, you know, it, it, it, it's a curious situation. I mean, the, the law really is the, the law doesn't contemplate this kind of situation, and I think that the law really was written expecting that people would do their job when they had to make appointments and that we wouldn't, we wouldn't be sitting sitting six years after the fact, waiting for an entirely new commission to be appointed.

You know, and, and, and the idea of the appointment process, the way it was staggered is so that essentially for one year you're gonna have three people who are loyal to the governor and then the next year you're gonna have three people who are not, you know, essentially weren't appointed by the governor that are on the commission. With the idea being that you would have, you would have kind of a balance that would rotate naturally through, and that's really not what we're seeing right now.

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Lauren Gilger, host of KJZZ's The Show, is an award-winning journalist whose work has impacted communities large and small, exposing injustices and giving a voice to the voiceless and marginalized.