In the culmination of what's been a vigorous challenge to the credibility of Arizona's Clean Elections Act, Judge Aceto has ordered David Burnell Smith to leave office because of campaign finance violations. The judge found "that Representative Smith has usurped, intruded into and unlawfully holds or exercises the office of District 7 state representative."
Certainly no one should be above the law. If Smith violated the rules, applicable penalties must apply. Lost in this discussion, however, is a fundamental question about whether or not the Clean Elections Act's provision requiring a legislator's removal from office is constitutional. Smith has been granted two weeks to appeal his case to the Court of Appeals which might answer that question.
Under the Arizona Constitution, the Legislature is primarily responsible for removing its members. The Clean Elections Act, however, empowers the Clean Elections Commission to determine whether a violation has occurred and what penalties should apply.
Even if the power is found to be constitutional, there remains a great danger in entrusting an unaccountable agency with such enormous powers. For example, in the 2002 elections, 16 of the 19 investigations initiated by the Commission focused on Republicans. Agencies staffed by political appointees inherently become open to politicization, putting fairness under the law at risk.
- East Valley Tribune: "Judge upholds ouster of Smith"
-Goldwater Institute: Is Cleanliness Political Godliness? Arizona's Clean Elections Law After Its First Year
-Arizona Citizens Clean Elections Commission: "Court Rules in Favor of Commission in the David Burnell Smith Case"