Photo by Jim Small | Arizona Mirror
The Arizona Court of Appeals upheld the anti-dark-money law that voters approved in 2022, ruling Friday that it was constitutional to force disclosure of the source of political spending.
This is the second legal victory for backers of the Voters Right to Know Act, which voters approved two years ago as Proposition 211. It requires any person or organization making campaign media expenditures of more than $50,000 on a statewide election or $25,000 on local elections to disclose the original source of any contributions totaling more than $5,000.
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The legal challenge, brought by the anti-abortion advocacy group Center for Arizona Policy and the Arizona Free Enterprise Club, a dark money nonprofit, argued that mandating disclosure of the source of political spending violates the Arizona Constitution’s protections of free speech, association, privacy and separation of powers.
Republican legislative leaders made similar arguments in their failed attempt to overturn the proposition, which was approved by more than 70% of voters.
The suit also included two anonymous donors who alleged they feared harassment and violence if their political spending was disclosed. However, the court was unconvinced.
“[N]either alleged any incident where a donor experienced harassment or retaliation because they donated to a covered person’s cause,” the court wrote in a unanimous opinion. “Not one incident of actual donor harassment was alleged.”
The conservative groups tried to argue that the disclosure of campaign contributions also was a breach of privacy, citing the state constitution, which has strong free speech and privacy protections.
The three-judge appellate panel said those claims were outweighed by the Arizona Constitution’s intent to compel financial disclosure of groups that seek to influence the results of an election.
“Plaintiffs have not put forth any evidence that the framers intended to protect donors to unaffiliated entities or even contemplated this kind of entity,” the court said, adding that parts of the state’s constitution were explicitly drafted to prevent the corrupting influence of money in politics.
“The government has strong informational and anti-corruption interests, which are sufficiently important to justify the modest burden the Act places on donors’ association rights,” Judge Jennifer Campbell wrote in the court’s opinion. “Plaintiffs fail to articulate why the Act’s disclosure requirements are not substantially related to the State’s interest in having an informed electorate.”
Under federal tax law, neither the Arizona Free Enterprise Club or the Center for Arizona Policy’s political arm have to disclose donors. But under Prop. 211, they will be forced to do so for their election-related activities.
The two groups lobbied against the passage of Prop. 211, claiming that it was an enshrinement of “cancel culture.” And CAP, which has a history of pushing anti-LGBTQ laws, said it feared the harassment it already received would be directed to its donors if they’re forced to be revealed.
Neither organization was able to provide proof of a chilling effect or that their financial supporters would face harassment and reprisals, the judges found.
“Both anonymous Plaintiffs express general concern that they will face harassment and retaliation if their large donations to covered persons are disclosed,” the court said. “But neither alleged any incident where a donor experienced harassment or retaliation because they donated to a covered person’s cause.”
The court added that “not one incident of actual donor harassment was alleged.”
“Without the Act’s disclosure requirements, the public could never evaluate the true source of the funds hidden by filtering through front groups or intermediaries,” the court said.
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