PHOENIX - A bid by Attorney General Tom Horne to escape campaign finance charges could ultimately upend all state laws limiting how much candidates can take in contributions.
Horne contends Maricopa County Attorney Bill Montgomery has no jurisdiction to charge that he illegally coordinated his 2010 election effort with what was supposed to be an independent campaign finance committee.
Horne's attorney, Michael Kimerer, told Maricopa County Superior Court Judge John Rea on Wednesday that the election law violation complaint against Horne by Secretary of State Ken Bennett must be referred to the Attorney General's Office, by statute.
At that point, Kimerer said, it would be up to Horne to decide if he has a conflict of interest. While that is likely the case, Kimerer said, it is then Horne who gets to decide what prosecutor farm the issue out to.
But Kimerer has a backup plan: He also wants Rea to declare that the statute limiting how much candidates can accept violated Horne's First Amendment rights because those limits are too low. If Rea agrees, that means the $840 limit on contributions from any one source didn't apply during the 2010 campaign.
That, in turn, means it would not legally matter if Horne coordinated with the committee run by Kathleen Winn on how she spent $513,340 for a last-minute television commercial on his behalf because he would be legally able to accept the money himself as a campaign donation.
A declaration that the state contribution limits are unconstitutional would mean there are effectively no limits on how much all candidates can accept.
Horne has an unusual ally on this issue: Montgomery himself testified at the Legislature earlier this year that he believes the current limits are "unconstitutionally low."
State lawmakers responded by boosting those limits for future elections, in some cases by eightfold.
But the Citizens Clean Elections Commission is considering challenging the new state limits because the change did not get the three-fourths vote margin the commission claims is necessary.
The Horne case stems from the 2010 race between Horne and Democrat Felecia Rotellini.
Winn, who had been part of Horne's campaign team for the GOP primary, formed Business Leaders for Arizona ahead of the general election.
With Horne facing last-minute attack ads funded by the Democratic Attorneys General Association, Winn bought a television commercial backing Horne.
While the law allows independent campaign committees, and they have no spending limits, Montgomery said an FBI inquiry found there had been illegal coordination between Horne and Winn's committee.
Montgomery sent his findings to Bennett as the state's chief elections officer.
Kimerer and Tim LaSota, who represents Winn, said state law requires Bennett to refer campaign finance allegations to the Attorney General's Office.
Deputy Maricopa County Attorney Michael McVey told Rea that makes no sense, arguing various legal theories of how Bennett was entitled to give the case to Montgomery.
Rea did not issue a ruling Wednesday.
The judge said he needed to look at whether the low campaign contribution limit invalidates the charge against Horne.
Kimerer pointed to a 2006 U.S. Supreme Court decision which struck down Vermont's $200 campaign finance limit on individual donors.
And Justice Stephen Breyer specifically mentioned Arizona's limit - then $760 - as one of the seven lowest in the entire country, a mention Kimerer said makes it also ripe for Supreme Court review.
The Arizona law adopted earlier this year, the one pushed by Montgomery, removes all restrictions on how much any individual or political action committee can spend to influence elections.
It also sharply increases how much donors can give to any one candidate and eliminates limits on how much candidates can accept from all sources.
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