[Above: Background on the overwhelming — and bipartisan — passage of Ballot Prop. 211 banning large anonymous donations in Arizona. – eds.]
by Jerod MacDonald-Evoy, Arizona Mirror
March 17, 2023
A lawsuit filed in federal court on Friday seeks to declare unconstitutional the anti-black money ballot measure that Arizona voters approved last year on the grounds that political donors have a First Amendment right to do so. anonymously, among other claims.
Voters overwhelmingly approved Proposition 211 last year, with more than 70% of voters choosing to require big donors to disclose their names to political action committees. Voters’ Right to Know Act triggers disclosure if a person gives $5,000 or more to a committee that spent at least $50,000 on a statewide or legislative race or ballot proposal .
In local elections, the disclosure rate drops to $2,500 for individuals and $25,000 for committee expenses.
The lawsuit filed Friday in federal court in Phoenix by the conservative advocacy group Americans for Prosperity and its foundation claims such disclosures have a “chilling effect” on Arizonans’ free speech and violate the First Amendment.
“The First Amendment protects the right of individuals to donate to private advocacy organizations of their choice without undue risk of having their identity disclosed or other government chilling measures,” the lawsuit states. The lawsuit is similar to one filed in state court last year by the Center for Arizona Policy and the Arizona Free Enterprise Club.
At the heart of the lawsuit is the argument that anonymous political speech is protected by the First Amendment. Terry Goddard, a former Arizona attorney general and a driving force behind the voters’ right to know law, said the arguments against disclosure are not new — and have been rejected by the courts.
“I think the arguments they make have been carefully handled,” Goddard told the Arizona Mirror.
Citizens United redux?
The group behind the suit, Americans for Prosperity, is no stranger to “black money.”
“Dark money” refers to nonprofit political organizations that spend money on political ads, robocalls, and other efforts to influence elections without any obligation to disclose donors.
During the 2014 midterm elections, the group was one of the biggest spenders on political ads and, due to its nonprofit status, did not have to disclose the source of its donors. He continues to play a key role in major conservative causes.
The term garnered additional attention after the U.S. Supreme Court ruled on the case of Citizens United v FEC which prohibited the government from restricting independent spending commonly associated with “black money” from political campaigns by corporations, nonprofits, unions and other groups.
Since the SCOTUS decision, groups like End Citizens United have sought to limit anonymous election spending by big business and donors, which they see as a way to influence policy-making that unfairly dominates the voter. AVERAGE.
“Without this transparency, it’s easier for them to raise large sums of money from millionaires and corporations who want to buy influence from politicians in Washington,” said Adam Bozzi, spokesman for End Citizens United. , a political action committee working to overthrow the SCOTUS. decision. “They want to do it without any control.”
Bozzi pointed out that former US Supreme Court Justice Antonin Scalia was even in favor of transparent disclosure and former US Supreme Court Justice Anthony Kennedy wrote in the United Citizens ruling that, while the First Amendment protects political speech, transparent disclosure allows citizens to react to that speech.
But not everyone sees it that way.
“As far as compliance goes, it’s just a nightmare,” Luke Wachob, senior director of communications and policy at the People United for Privacy Foundation, told the Mirror about the Prop. 211.
According to the lawsuit and Wachob, the voter-approved law will cause those who plead on Capitol Hill to also violate disclosure laws because of the proposal’s “overbroad” language.
The argument hinges on the claim that the proposal fails to adequately define “campaign media expenditure”, leaving room for interpretation, and adds to the window of time before an election in which disclosures must be made and other forms of political speech may be impacted.
“This is going to trip up a lot of legislative groups looking to talk about legislation around the legislative session,” Wachob said.
Plaintiffs and defenders of anonymous political spending claim that the disclosure required by Prop. 211 exposes donors to harassment.
“People vote in private booths,” Wachob said. “It’s a very similar idea, that when you support a non-profit group or an advocacy group…you shouldn’t have to publish your name, your address, your employer.”
In today’s divided political environment, Wachob argues that exposing donors could create retaliation or cold rhetoric, as donors would think twice about donating out of fear. There is established case law to support this, such as in 2015, then California Attorney General Kamala Harris was barred by a federal court from receiving the list of Americans for Prosperity donors.
People United for Privacy, the group Wachob represents, is funded in part by groups that also fund Americans for Prosperity and has campaigned against the disclosure of black money in other states where Americans for Prosperity has also worked.
“Don’t let me be a cavalier, they’ve got the wheels rolling in the district court,” Goddard said, when asked by the Mirror if he thought a SCOTUS challenge was inevitable. Goddard added that they followed SCOTUS precedents in drafting Proposition 211 and that he strongly believes the voter-approved measure is constitutional.
Arizona Mirror is part of States Newsroom, a network of news outlets supported by grants and a coalition of donors as a 501c(3) public charity. Arizona Mirror maintains editorial independence. Contact editor Jim Small with any questions: info@azmirror.com. Follow Arizona Mirror on Facebook and Twitter.
