Reform revival, Clean Election, judicial fumble
Arizona Republic
Jul. 1, 2007


From the political notebook:

After the Senate failed to get the votes for cloture, the conventional wisdom is that immigration reform is off the table until after the 2008 presidential election.

In reviewing the political landscape, I'm not so sure.

It is very much in the Democrats best interest to get this issue resolved while President Bush is still in office to sign it. If immigration reform is enacted by a Democratic Congress and president, it will be the Democrats'
amnesty bill. Bush gives the effort a bipartisan tint even if there are few Republicans in Congress who go along.

If Democrats do virtually all the heavy lifting in Congress, however, the product will look much different than the bill the Senate just jettisoned.
In fact, it will probably look a lot like the McCain-Kennedy immigration reform that passed the Senate last year with 62 votes, including 23 Republicans.

McCain-Kennedy included a much more relaxed path to citizenship for current illegal immigrants, and gave a similar path to future guest workers. It didn't restrict chain-migration and had a much less strenuous work verification requirement. Nevertheless, Bush would undoubtedly sign it.

Grassroots conservatives are congratulating themselves for having killed the Senate immigration compromise. I suspect, however, they have just paved the way for a much more liberal immigration reform - probably after 2008, but perhaps before.

The U.S. Supreme Court's decision last week about issue advocacy should boost the legal challenge to Arizona's Clean Elections law by the Institute for Justice. The case is pending review by the 9th Circuit Court of Appeals.
The challenge was declared moot because the election in question had come and gone. In the Wisconsin Right to Life case, however, the high court rejected a similar claim, on the grounds that free speech was a core right and similar circumstances were very likely to arise repeatedly.

The high court finding that there is a free speech right to publish issue ads paid from unregulated funds before elections should also bolster one of the lawsuit's claims. Clean Elections provides matching funds to publicly-financed candidates for independent campaigns run against them. Any mass communication that names a candidate within 16 weeks of the general election is automatically deemed to be electioneering, subject to the matching fund provision. That unquestionably has a chilling effect on the kind of issue advocacy the Supreme Court just said is free speech that cannot be regulated.

A federal judge, Raner Collins, had ordered the Arizona Legislature to address English-learner funding before adjourning. The Legislature had asked the judge to stay his order while it was being appealed.

Last week, Collins refused. The public interest lawyer pushing the case, Tim Hogan, says he will ask the judge to hold the Legislature in contempt and impose sanctions. In reality, it is the judge who is acting contemptibly.

There's a good faith legal dispute going on. The Legislature and Superintendent of Public Instruction Tom Horne do not believe that the state is in violation of a federal law requiring equal access to education regardless of language barriers.

Granting the stay would have been the judicious decision, particularly given what happened to Collins' last order. He fined the state, but the Ninth Circuit Court of Appeals vacated the order and the fines, expressing great skepticism about the underlying case in oral arguments. Now, we have the legal spectacle of Hogan seeking sanctions at the trial level while the Legislature and Horne seek a stay at the appellate level.

Hopefully the appeals court will grant the stay Collins should have.

Congressman Jeff Flake, intrepid earmark hunter, finally bagged one.

In addition to pushing for procedural reforms making earmarks (congressional funding for pet local projects) more transparent, Flake has been challenging some of them on the floor. He's been spectacularly, and unsurprisingly, unsuccessful. Last year, he was 0 for 39.

Last week, however, the House went along with his motion to strike funding for the Perfect Christmas Tree project in Mitchell County, N.C., from the Financial Services appropriations bill. The program subsidizes artisans who craft Christmas ornaments and other holiday decorations.

Exactly why Flake finally found success was a bit of a mystery. speculated that Democrats went along because the sponsor of the earmark was another conservative whom they find obnoxious. But if the obnoxiousness of the sponsor were the criterion, surely Flake would have a much higher kill ratio.

Perhaps it's part of the liberal plot to abolish Christmas.

Reach Robb at or (602) 444-8472. His column appears Sundays, Wednesdays and Fridays. Read his blog at