PHOENIX — Groups attacking politicians can’t hide their funding sources simply by claiming they’re “educating” voters on issues, the Arizona Supreme Court concluded Tuesday.
Without comment, the justices upheld an appellate court ruling that “dark money” groups can be forced to disclose who is financing the effort.
In doing so, the justices rejected arguments by the Committee for Justice and Fairness that its last-minute commercial attacking Tom Horne before the 2010 election was not designed to affect the election.
Tuesday’s ruling has implications far beyond that campaign, and should impact the increasing use of TV ads and mailers attacking candidates.
Lawyers for these groups have said they are free to hide their donors’ identities because they are simply “educating” voters about the issues and candidates, and aren’t advocating for anyone’s election or defeat.
But the appellate court said — and the Supreme Court agreed — any commercial or mailer must be examined in its entirety, including its timing, to determine its real purpose.
Maricopa County Attorney Bill Montgomery, who pursued the case against the committee, said Tuesday’s ruling is a significant victory for voters. He pointed out the commercial in question never explained the source of its funding was a group backing Felecia Rotellini, Horne’s Democrat foe.
“It’s important for voters to be able to look up the information ... so that the voter then can weigh whether or not, and to what degree, they should give it any legitimacy or factor it into their decision on how to vote for or against any candidate or on a given issue,” Montgomery said.
Tom Irvine, who represents the committee that challenged the law, did not immediately return calls seeking comment.
The commercial ran in October 2010 as Horne, then the state schools chief, was seeking election as attorney general.
It said when Horne was a legislator he “voted against tougher penalties for statutory rape,” and that as state schools chief and a member of the Arizona Board of Education he voted to allow a teacher who had been caught “looking at child pornography on a school computer” to return to the classroom
It then urged viewers to “tell Superintendent Horne to protect children, not people who harm them,” and included a photo of Horne and his phone number at the Department of Education.
After the election, which Horne won, it turned out that the $1.5 million expenditure came from the Democratic Attorneys General Association, which backed Rotellini.
Maricopa County sought to force the committee to comply with campaign finance laws.
While Irvine convinced a trial judge the ad was exempt because it was “issue-oriented speech” and not “express advocacy,” the appellate court disagreed.
Justice Lawrence Winthrop, writing the ruling the Supreme Court eventually upheld, acknowledged the ad did not use any of the “magic words” that state law says indicate express advocacy — such as “vote for,” “elect,” “support” or “endorse.” But he said it clearly was meant to influence voters, pointing out that it used Horne’s name, photo and record of current and prior offices.
That, combined with the ad’s timing, the judge said, indicates, “the only reasonable purpose for running such an advertisement immediately before the election was to advocate Horne’s defeat.”
He also said disclosure laws serve “substantial governmental interests,” including providing voters with information to help them evaluate candidates and their sources of support. Winthrop said it deters corruption “by exposing large contributions and expenditures to public light.”
The appellate court also rejected Irvine’s arguments the reporting requirements are unconstitutional because forcing groups to identify their donors would chill their free-speech rights.
