PHOENIX — A judge rebuffed a bid by two groups involved in Arizona politics to void a new voter-approved law designed to prohibit “dark money’’ in political races.
In a ruling Thursday, Maricopa County Superior Court Judge Scott McCoy acknowledged that the Arizona Constitution has a specific provision guaranteeing the right to freely speak, write and publish on all subjects. It is broader than the federal First Amendment, he said.
But McCoy rejected arguments by the Arizona Free Enterprise Club and the Center for Arizona Policy that the requirements in Proposition 211 to disclose the true identity of donors to candidate races and ballot measures violates the rights of donors to affect outcomes.
“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,’” the judge wrote.
McCoy also noted the state constitution requires enactment of voter registration and other laws “to secure the purity of elections and guard against abuses of the elective franchise.’’ A third provision bars corporations that are 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 judge was no more impressed by foes’ arguments that the initiative violates different rights, ranging from the freedom of individuals to associate for political purposes, to a constitutional right of privacy.
Groups cite donors’ rights
Approved by voters in November by a nearly 3-1 margin, the initiative says any organization that spends more than $50,000 on a statewide race — or half that for other contests — has to publicly disclose anyone who has given at least $5,000.
And it says organizations must trace the money back to the original source.
Until it was passed, a donation could be listed as coming from some group with a name like “Arizonans for Arizona,’’ with no clue who formed the group. The initiative ensures that those who financed the organization must be publicly identified.
The groups challenging the initiative contend it interferes with the rights of donors.
“The act violates Arizonans’ right to speak freely by chilling donors from supporting causes they believe in and wish to support, lest their charitable giving become public knowledge,’’ argued attorney Scott Freeman of the Goldwater Institute, which is supporting the two groups.
McCoy, however, said states are free to enact restrictions if they are “substantially related to sufficiently important governmental interests.’’ Proposition 211 fits within that definition, he said.
The judge said he’s not the only one who has reached that conclusion. He cited a series of court rulings that upheld financial disclosure laws elsewhere.
For example, he said, the U.S. Supreme Court concluded disclosure laws not only serve the interests of voters in knowing who is trying to influence their decisions, but also in ensuring election integrity.
Judge says law deters corruption
McCoy also said disclosure laws deter corruption “by permitting voters to assess whether donors receive post-election favors.’’ He 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.’’
The judge acknowledged arguments that the new disclosure requirements might result in fewer people being willing to donate. That, in turn, could affect the ability of the Free Enterprise Club and the Center for Arizona Policy to spend money to influence campaigns.
He said, though, that disclosure “certainly in most applications appears to be the least restrictive means of curbing the evils of campaign ignorance.’’
McCoy also noted that Proposition 211 has an escape clause. It allows any donor to keep a name secret if he or she can convince the Citizens Clean Elections Commission there is a reasonable probability that disclosure “would subject the source or the source’s family to a serious risk of physical harm.’’
Scot Mussi, president of the Free Enterprise Club, said he is reviewing the ruling and had no immediate comment.
What’s next on the issue
Thursday’s ruling does not end the matter, and not only because of the ability of the challengers to appeal.
McCoy said he would be willing to consider an alternate claim, one that does not seek to totally invalidate Proposition 211 but instead contends the law specifically can’t be applied to the two organizations. But he noted that would require either organization to show “reasonable probability that disclosure of its contributors’ names will subject them to threats, harassment, or reprisals from either government officials or private parties.’’
There also is a separate legal challenge that was filed in federal court by a conservative advocacy group founded by the Koch brothers.
Americans for Prosperity contends Proposition 211 subjects “countless Americans nationwide to governmental doxxing for doing nothing more than supporting their chosen non-profit organizations and charities.’’ Doxxing is publishing private or identifying information about someone on the internet.
The group wants U.S. District Court Judge Roslyn Silver to block the Citizens Clean Elections Commission from enforcing the voter-approved law.
No hearing has been set in that case.
Declaring that "dark money erodes public trust," President Joe Biden called on Congress to support an election transparency bill now before the Senate that would require Super PACS and other groups spending money in elections to disclose donors who give at least $10,000 during an election cycle. The legislation, called the Disclose Act, would also ban domestic corporations with significant foreign control from spending money in U.S. elections. Speaking from the White House Roosevelt Room, Biden urged Senators to support the bill, warning, "there's much too much money that flows in the shadows to influence our elections," including foreign money. "Dark money has become so common in our politics. I believe sunlight is the best disinfectant," he added. The House has already passed the legislation and a Senate vote is expected this week. But Republicans have threatened to block the measure from passing. "And I acknowledge, it's an issue for both parties, but here's the key difference. Democrats in the Congress support more openness and accountability. Republicans in Congress so far don't. So far don't. I hope they'll come around," Biden said.
