FAIR GAME? How GOP politicians are trying to secretly influence the IRC
At just about every meeting of the Arizona Independent Redistricting Commission, at least one of several attorneys representing a group called FAIR Trust sits among the audience.
They take notes, make public recommendations to the commission and occasionally talk privately with commissioners.
FAIR Trust’s attorneys say they want to help the commission adhere to the legal requirements that govern the high-stakes, once-in-a-decade political remapping process, and the group’s name suggests it is interested in fairness.
But what FAIR Trust’s attorneys refuse to say is that they’re actually representing a group of incumbent Republicans from Arizona’s congressional delegation and the state Legislature.
The legal arguments FAIR Trust makes aren’t presented to the redistricting commission as serving the interests of those politicians, but the recommendations they’ve made would create safe districts for the four Republican members of Congress who will seek re-election in 2012: U.S. Reps. Trent Franks, Paul Gosar, Ben Quayle and David Schweikert.
And if the incumbent politicians behind FAIR Trust decide the final maps don’t meet their desires, the group’s role will likely shift from lobbying to litigating. Led by a team of high-powered attorneys, a lawsuit by the group would take months or years, costing tens of thousands of dollars in legal fees.
And if they have it their way, the group’s financial backers will remain a secret.
Little is publicly known about FAIR Trust, and that’s exactly what its members want. They’ve gone out of their way to hide who is involved and who is paying for the cadre of costly attorneys. And so far the group has done a good job keeping that information away from the public.
The group is a legal trust, which is essentially a banking vessel that allows people to anonymously deposit money into an account and others to take money out. The only formal document required for such a trust is an agreement that belongs to the bank and the principals of the account.
Campaign finance laws don’t apply to legal trusts, state lobbying disclosure rules don’t apply to the redistricting commission and FAIR Trust’s attorneys have repeatedly told the commission, members of the public and the media that their clients have forbidden them from saying who they represent.
It’s not surprising to see a group like FAIR Trust emerge in Arizona, said Justin Levitt, a Loyola University Law School professor who studies redistricting.
Similar groups have surfaced in other states where voters have authorized an independent redistricting commission, instead of the Legislature, to draw political lines.
He said in those states, generally speaking, incumbents seek “creative” ways to influence the process. And sometimes they do it in secret since it has the appearance of contradicting the will of voters.
“That’s exactly why they’ve used a legal trust,” Levitt said.
• • •
An email obtained by the Arizona Capitol Times sheds light on at least a partial list of who might be involved in the group.
Steve Twist, a longtime Republican operative in Arizona, sent the email on June 9 to top staff from every Republican member of Arizona’s congressional delegation, top staff for Republicans in the state Legislature and two FAIR Trust attorneys.
U.S. Rep. Trent Franks confirmed to theCapitol Times that Twist is at the head of FAIR Trust, but Twist has refused to discuss anything about the group.
Twist’s email asked the recipients to participate in a June 13 conference call, the first in a series of such conference calls. The email is short on details, but in it Twist tells the legislative and congressional staffers that the first agenda item they need to discuss is attorney-client privilege — the way in which communications between attorneys and their clients can be legally kept secret.
The email addresses used for every recipient on the list except for the two FAIR Trust attorneys are non-official email addresses, which avoids creating a public record of the email and avoids opening any state employee from accusations that they’re using public resources for partisan political activity. Although there are numerous exemptions, broadly speaking, such activity is illegal.
All of the legislative staffers listed on the email either denied having participated in the call, said they don’t remember participating in the call or said they wouldn’t answer any questions about it.
None of the congressional staffers included on the email returned a request for comment.
A public records request submitted to both chambers of the Legislature requesting telephone records for the staff members included on the email was denied, because the telephone records are not archived more than 120 days. Initially, House staff told the Capitol Times that they might get to the request by mid-November.
One of the email recipients, John Mills, a “legislative special projects” staffer for the House Republicans, has attended most of the redistricting commission’s meetings and often sits and talks privately with FAIR Trust’s attorneys. Mills also sometimes reviews technical mapping software with FAIR Trust’s attorneys on his laptop.
Mills has said his attendance at the commission’s meetings is not related to FAIR Trust, that he doesn’t work for the group and that he hasn’t been on any FAIR Trust conference calls.
“A lot of people ask me to be on conference calls,” Mills said. “I do not work for FAIR Trust. I’ve never been paid by FAIR Trust. I work strictly for the House.”
Instead, Mills has said he has been monitoring the IRC in preparation for the formal review that the Legislature is constitutionally entitled to submit on the commission’s maps. He delivered a detailed account of the commission’s recently adopted draft maps and the progression that led to them at a recent meeting of the ad hoc Joint Legislative Committee on Redistricting. That committee is currently reviewing the commission’s plan.
• • •
Redistricting can make or break a political future, and the predictable desire for incumbents to seek safe districts played a role in the effort to take the process out of the hands of elected politicians with a citizen initiative in 2000.
Part of the initiative says that Arizona’s redistricting commissioners are prohibited from considering where politicians live.
But a group like FAIR Trust is not barred from doing so.
So while FAIR Trust attorneys regularly use solid legal arguments to try to persuade the commission to draw the maps in a way they like, there’s nothing to stop them from first finding the legal argument that benefits their clients.
Linda McNulty, one of the two Democrats on the commission and an attorney herself, interrupted David Cantelme, a FAIR Trust attorney, during his Sept. 16 public testimony to say that she knows attorneys pick the arguments that suit the interests of their clients, and that she was skeptical of FAIR Trust because they won’t say who their clients are.
“If you’re going to come in here and you’re going to make very detailed comments about things but you won’t tell us on whose behalf you’re making those comments, I can only assume that those comments are based on and motivated by self-interested individuals who won’t disclose themselves,” McNulty said.
José Herrera, the other Democrat on the commission, joined McNulty during the meeting in criticizing the group for not disclosing who they work for.
“They’ve not been open about who they are,” Herrera later said of FAIR Trust. “I approach their advice with skepticism.”
Despite the Democrats’ criticisms, Cantelme reaffirmed the fact that FAIR Trust is not required to disclose who they represent and that he would not do so.
Rather, Cantelme said FAIR Trust’s arguments should be evaluated only by their legal merit.
“I seek to persuade you only by the power of the logic of my positions, by the points that I make, by the analysis that I offer,” Cantelme retorted at the Sept. 16 meeting. “The points that I have given I think I can defend intellectually. There’s no hidden agenda.”
Although Cantelme has refused to tell the commission that FAIR Trust represents Republican incumbent politicians, a partisan split on the commission over how the group is perceived hints that the commissioners know more than just what’s been said publicly.
The commission’s two Republicans, Richard Stertz and Scott Freeman, both said they see FAIR Trust more favorably than the commission’s two Democrats.
“I’ve tried to listen to everybody, no matter who they represent,” Stertz said. “When I hear the folks from FAIR Trust, I listen the same as I do for the minority coalition or anybody else.”
Freeman, who also is an attorney, echoed Cantelme’s characterization of FAIR Trust’s testimony, saying he hears only solid constitutional arguments coming from the group.
“Their lawyers – Mr. Cantelme and Mr. (Michael) Liburdi – they’ve never come up and said draw a line here or there, it’s really been broad strokes,” Freeman said. “I think they’re trying to get the commission to follow the Constitution… and if that’s their motive, I think that’s a good motive.”
• • •
As the congressional map began to take shape, FAIR Trust’s most specific criticisms and recommendations have aligned with the creation of four safe districts for the four Republican congressmen who will seek re-election next year.
The FAIR Trust attorneys have railed against a new central Phoenix district drawn largely by one of the commission’s Democrats. The new 9th Congressional District was born of a desire to create a competitive district, but doing so leaves Reps. Quayle and Schweikert eyeing only one safe district for Republicans in the northeastern part of the metro Phoenix area, where there had previously been two.
While competitiveness is one of the commission’s constitutional goals, it comes with the caveat that it should be strived for only where it does no detriment the other constitutional criteria.
FAIR Trust’s attorneys have argued for a stricter adherence to the requirement to respect “communities of interest,” the idea that regions with common interests should be grouped together. They’ve also lobbied to strengthen Hispanic districts near the proposed central Phoenix competitive district – a district that many up-and-coming Democrats are eyeing as a lifeline to higher office.
These FAIR Trust suggestions would ensure that Quayle and Schweikert would end up with districts that more closely resemble the safe districts the current map affords them.
FAIR Trust’s attorneys have also spoken critically about the configuration of the two expansive rural districts on the draft congressional map.
Cantelme said the western rural “river district” is not as rural as it can be, as it has a section that stretches into Maricopa, Gila and northern Pinal counties.
Putting Flagstaff and the surrounding parts of Coconino County into the river district, along with some other small adjustments, would create two “truly rural” districts, and would exclude metro-Phoenix or Tucson areas, Cantelme said.
What Cantelme leaves out is that FAIR Trust’s recommendations would put Gosar into the heavily Republican “river district.”
And while most of the river district is part of Franks’ current district, he’s got plans to run in a much more compact, but equally Republican-favoring, west Phoenix district.
Franks said he’s happy with what the commission has given him, and FAIR Trust hasn’t raised any issue with it either.
A couple weeks before Cantelme made the rural-district recommendations, Gosar told the Arizona Capitol Times that he anticipated Flagstaff being eventually drawn into the river district.
The time for making appeals to the commission will end once the commission adopts final maps, which the commissioners say they hope to do by Thanksgiving.
After that, litigation remains an option.
Cantelme said he doesn’t want to sue over the maps, but he won’t rule it out. Franks, however, said he sees a lawsuit over the redistricting plan as practically guaranteed.
“I’m almost sure there will be (a lawsuit),” Franks said.
Recipients of Twist’s email
Wendy Baldo, Arizona Senate Republican caucus chief of staff, said she was in San Diego that day and didn’t take part in the call.
Greg Jernigan, Arizona Senate Republican caucus general counsel, said he can’t remember if he was on the call and that even if he could, he wouldn’t answer the question.
Victor Riches, Arizona House of Representatives Republican caucus chief of ctaff, said he wasn’t on the call.
Peter Gentala, Arizona House of Representatives Republican caucus general counsel, said he wouldn’t comment on it.
John Mills, Arizona House of Representatives “legislative special projects” staffer, said he wasn’t on the call.
Matt Specht, chief of staff for U.S. Rep. Jeff Flake, did not respond to request for comment.
Randy Kutz, chief of staff for U.S. Rep. Trent Franks, did not respond to request for comment.
David Sheasby, legal counsel for Franks, did not respond to request for comment.
Rob Robinson, chief of staff for U.S. Rep. Paul Gosar, did not respond to request for comment.
Anthony Smith, district legislative assistant for Gosar, did not respond to request for comment.
Renee Hudson, chief of staff for U.S. Rep. Ben Quayle, did not respond to request for comment.
James Ashley, deputy chief of staff for Quayle, did not respond to request for comment.
Oliver Schwab, chief of staff for U.S. Rep. David Schweikert, did not respond to request for comment.
Kevin Knight, director of coalitions and outreach for U.S. Rep. David Schweikert, did not respond to request for comment.
Mike Liburdi, FAIR Trust attorney, refused to talk about the call.
David Cantelme, FAIR Trust attorney, refused to talk about the call.
• Vice president and general counsel at Services Group of America
• Co-founder of The Goldwater Institute
• Adjunct law professor at ASU College of Law
• Executive committeeman at the Arizona Chamber of Commerce and Industry
• Former chief assistant attorney general for the state of Arizona (1978-1991)
— source: LinkedIn, Arizona Chamber of Commerce and Industry website
David Cantelme, Cantelme & Brown P.L.C.
• 30+ years in election law
• Sued over the 1981 redistricting plan for splitting the Apache Indian Tribe
• Sued the 2001 redistricting commission on behalf of the city of Flagstaff
• Former attorney at Jennings, Strouss & Salmon, P.L.C. (2001-2006)
• Former attorney at Lewis & Roca LLP (1981-1997)
• Former judicial law clerk to Hon. Walter E. Craig (1979-1981)
• J.D., Stanford University, 1979
— source: Cantelme & Brown website, David Cantelme
Michael Liburdi, Snell & Wilmer
• Former Arizona Supreme Court law clerk for Vice Chief Justice Ruth McGregor
• Former lobbyist at Kevin DeMenna & Associates
• Former litigation staff attorney at the Federal Election Commission
• Former attorney at Perkins Coie LLP
• J.D., Arizona State University, 2002
— source: LinkedIn, Snell & Wilmer website
Tim LaSota, Rose Law Group
• Four-plus years in election law
• Chief of staff to Scottsdale Mayor Jim Lane
• Former special assistant to deputy
Maricopa County attorney
• Six years on board of directors of Goodwill of Central and Northern Arizona
• Former president of the St. Thomas More Society
• Former president of The Federalist Society
— source: Rose Law Group website
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