By Howard Fischer
Capitol Media Services
PHOENIX — Two groups that support Republicans are making a last-ditch effort to have the Arizona Supreme Court kill campaign finance requirements that voters have approved.
And the goal of their legal effort is to let them keep secret who really is funding their efforts to influence elections.
Lawyers for the Arizona Free Enterprise Club and the Center for Arizona Policy are arguing to the justices that Proposition 211, adopted by voters in 2022, violates the Free Speech Clause in the state constitution. That’s because they say it strips from Arizonans the right to make anonymous donations to organizations like theirs — organizations that have been spending money on campaigns to get certain candidates elected and get various ballot measures approved or rejected.
The result of disclosure, according to lead attorney Andrew Gould, can lead to retaliation, intimidation and “doxing” of both individual donors and the groups to whom they are giving.
And if that legal theory doesn’t work, Gould has others, including that the measure is overbroad and that it is unconstitutionally vague.
The arguments aren’t new. In fact, they were presented to — and already rejected by — both Maricopa County Superior Court Judge Scott McCoy as well as the state Court of Appeals.
Now, the two groups are hoping the Supreme Court is more receptive.
Arizona has had campaign finance laws since the first days of statehood. Candidates are required to list who has contributed to them and where they are spending their money
But supporters of Proposition 211 argued that there is was a gap.
One is in the practice of “independent expenditures.” This occurs when a group is formed to spend money to influence a candidate race.
Those expenses have to be reported.
What had occurred, however, is that the required financial disclosure showed only the name of the group spending the cash. But that didn’t provide the public with any meaningful information, including who formed the group and, more to the point, who was providing the actual dollars.
Prop 211 was designed to provide that information.
Approved by voters in 2022 by a nearly 3-1 margin, the initiative says that any organization that spends more than $50,000 on a statewide race — half that for other contests — has to publicly disclose anyone who has given at least $5,000.
It also is designed to cut through what could be considered laundering.
The law requires the group spending the money to detail not just who it got it from, but who gave the money to that entity. And that goes all the way back to whoever has put in at least $2,500.
It also is about more than public reports. Under Prop 211, the names of the top three donors to any group that is spending money to influence elections have to be included on all public advertising and other communications.
What all that means to the Free Enterprise Club and CAP, said Gould, is they have to either disclose the names of their donors or, in the alternative, “self-censor their speech.”
“And based on Prop 211’s disclosure requirements, both CAP and Free Enterprise face the real possibility of retaliation, threats, violence, loss of economic opportunities, and diminished social standing,” he wrote — all issues he contends were improperly brushed aside by lower courts.
Gould is telling the Supreme Court there is “uncontroverted evidence” showing CAP has received threatening and harassing communications, like, “Sooner or later you will die and some of us pray it is sooner” and “You are a cancer that will soon be sliced out of our nation’s sick body. I will make it my personal mission to bury every single one of you.”
But appellate Judge Jennifer Campbell who reviewed the evidence and rejected the challenge to the law, said that there were only a “handful of harassing communications” received by each group.
And the appellate court said the fact that CAP hired private security in anticipation of protests does not entitle it to protect the source of its funds because the protesters had not harassed or threatened CAP staff or caused any property damage.
Ultimately the legal question the Supreme Court needs to decide comes down to two things: whether the disclosure requirements violate free speech rights, and whether they are narrowly tailored to achieve a legitimate governmental interest even if they do impinge on individual rights.
One hurdle for foes of Prop 211 is that Arizona has a long history of campaign finance disclosure, something that court who have upheld the law have noted.
“In fact, Arizona’s Constitution required the first Legislature to pass an election disclosure law to publicize ‘all campaign contributions to, and expenditures of campaign committees and candidates for public office,’ ” wrote Maricopa County Superior Court Judge Scott McCoy when he rejected the arguments by CAP and the Free Enterprise Club.
He noted the state constitution also requires enactment of voter registration and other laws “to secure the purity of elections and guard against abuses of the elective franchise.” And a third provision absolutely bars corporations doing business in the state from making political contributions to influence any election.
“The framers thus established a constitutional commitment to pure elections, to prevent corporate influences, and to publicize sources of campaign funds,” McCoy wrote. “The court finds it unlikely that the same framers somehow envisioned that Arizona’s Free Speech Clause would reach the (campaign finance) disclosures at issue.”
And there’s something else.
McCoy said disclosure laws deter corruption “by permitting voters to assess whether donors receive post-election favors.” And the judge said that’s true in the case of Proposition 211 and its requirements to disclose the original source of dollars “which prevents cloaking actual contributors by using intermediaries.”
Gould, in his legal filing with the Supreme Court, said that concern about corruption is misplaced.
He said much of what is at issue here are those independent expenditures — money spent by an organization on behalf of a candidate. By law, there can be no coordination of all that with the candidate.
That, however, makes the assumption that a candidate is totally ignorant of who is spending money on his or her behalf.
Gould also argues that there is no possibility of corruption when groups spend money on ballot measures — something covered under Prop 211 — as these do not involve candidates.
And he says there should be no need for his clients and others to disclose the money they are spending on “issues advocacy,” as this involves neither candidates nor elections.
Even if there is some reason for the government to seek disclosure, Gould said any regulation needs to be “narrowly tailored.” And this, he said, doesn’t meet that definition.
For example, is asking the justices to consider a situation where “John Smith” gives $2,500 to his church which is organized as a charity. Then the church, in turn, donates at least $5,000 to the Center for Arizona Policy.
Then, under Gould’s scenario, CAP gives money for campaign media spending that refers to Donald Trump — but outside of the “window” of the period right before an election.
In this scenario, he said, Smith’s name and information could be made public.
“And what exact does the public learn about Mr. Trump or his election from from knowing that Smith donated to his local church?” Gould asked rhetorically. “Nothing.”
It isn’t just CAP and the Free Enterprise Club that have been unable to convince courts to quash Prop 211.
Last year, Maricopa County Superior Court Judge Timothy Ryan rejected a bid by House Speaker Ben Toma and Senate President Warren Petersen to block implementation of the law ahead of the 2024 election. Their attorney had argued that the initiative infringed on the rights of the Republican-controlled Legislature.
But Ryan said voters have an absolute right to enact laws requiring full disclosure of the true source of political donations — even if GOP lawmakers don’t like it.
That ruling is currently on appeal.
And in a third challenge, U.S. District Court Judge Roslyn Silver knocked down a series of arguments by Americans for Prosperity, an organization founded by the Koch Brothers, that Prop 211 infringes on its free speech rights and those of its donors. That case, too, is being appealed.
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