State of Arizona on
Dec. 5, 2014, by U.S.
District Court Judge James Teilborg
in Galassini v. Town of Fountain Hills.
In a move that might appear innocuous or insignificant on the surface,
Judge Teilborg held that the definition of “political committee” set forth
in A.R.S. § 16-901( 19) was unconstitutionally vague and overbroad as
applied to persons or groups other
than candidates themselves.
This seemingly insignificant term
is actually of critical importance to
Arizona campaign finance law,
because if you get rid of the term
“political committee,” you also get rid
of much of Arizona campaign finance
laws. The term is the linchpin on
which nearly all subsequent provisions
and limitations hang.
To illustrate, A.R.S. § 16-902.01
requires all political committees that
expect to raise more than $500 to file
a statement of organization with
the Secretary of State before collecting
or spending any money. A.R.S. § 16-912
requires a political committee to make the
familiar “paid for by” disclosures on their
advertisements. A.R.S. § 16-913 requires
a political committee to file periodic campaign finance reports listing money raised
and spent with the Secretary of State. If the
term “political committee” is found to
be unconstitutionally vague and effectively
eliminated from campaign finance law, it
thus becomes nearly impossible to apply
these and many other campaign-finance
provisions to persons or groups other than
While Judge Teilborg’s ruling essentially
sets aside Arizona campaign-finance laws
as applied to persons or groups other than
candidates themselves, we can rest easy on
one point. By its own terms, it did not affect
candidates. It left untouched candidate
registrations, candidate contribution disclosures, and the limits applicable to contributions to candidates.
With a tinge of inscrutability, Judge
Teilborg limited his judgment to declarato-
ry relief. He refused to grant an injunction
against the State on the grounds that it was
making no threat to enforce the laws he had
7 The State thus
having stood down, the Plaintiff no longer
could show irreparable harm, an essential
element to the issuance of injunctive relief.
Judge Teilborg’s opinion can always be
cited for whatever persuasive effect its analysis commands. The real question is whether,
lacking an injunctive component, it has any
effect beyond the parties bound by it. The
answer requires us to take a detour from
campaign finance law into the law of civil
procedure and judgments—specifically the
use of offensive collateral estoppel.
Offensive collateral estoppel occurs
“when the plaintiff seeks to foreclose the
defendant from litigating an issue the
defendant has previously litigated unsuccessfully in an action with another party.”
(The mirror image is defensive collateral
estoppel, which occurs when “a defendant
seeks to prevent a plaintiff from asserting a
claim the plaintiff has previously litigated
and lost against another defendant.”
Without offensive collateral estoppel,
Judge Teilborg’s declaratory judgment has
no direct effect beyond the parties bound
by it. Although the federal courts often
apply offensive collateral estoppel in private
lawsuits, the Supreme Court has refused to
apply the doctrine to constitutional ques-
tions involving the federal government.
The Ninth Circuit has extended this rule
to litigation against states.
12 Thus, Judge
Teilborg’s judgment likely will have no
effect in federal courts beyond its own
docket—except to the extent his reasoning
can persuade the next judge facing a similar
Arizona courts are a little less set-
tled than federal courts on the use of
offensive collateral estoppel.
13 Yet it is
a stretch to expect Arizona courts to
give more effect to a federal court
judgment striking down a major
piece of Arizona campaign finance
laws than federal courts themselves
would give the same judgment.
Where does all of this leave us?
Arizona campaign finance laws
are in serious trouble and need sub-
stantial modernization and over-
haul. Matching funds have receded
into history. Clean Elections public
financing remains, but its efficacy
is hobbled without matching funds.
The federal courts have not touched
the laws relating to candidate
registration, candidate contribution
disclosure, or candidate contribution
and expenditure limits. Judge
Teilborg’s declaratory judgment, even if
not directly binding beyond the parties to
it, calls into real doubt whether any of
Arizona’s campaign finance laws can be
applied against persons or groups who are
not themselves candidates. For now, Dark
Money has gotten several shades darker in
Arizona. AZ AT
1. Arizona Free Enterprise Club’s Freedom
Club PAC v. Bennett, 131 S. Ct. 2806,
5. 2014 WL 6883063 (D. Ariz., Dec. 5,
7. 2014 WL 6883063, 6.
9. Parklane Hosiery, Inc. v. Shore, 439 U.S.
322, 326 n. 4 (1979).
11. United States v. Mendoza, 464 U.S. 154,
12. State of Idaho Potato Comm’n v. G & T
Terminal Packaging, Inc., 425 F.3d 708,
714 (9th Cir. 2005).
13. Campbell v. SZL Properties, Ltd., 62 P.2d
966, 968 (Ariz. Ct. App. 2003).
finance laws are in
serious trouble and
overhaul. For now,
Dark Money has
gotten several shades
darker in Arizona.