Two groups involved in Arizona politics are making a new bid to hide the names of their donors, with one saying “government officials’’ may threaten or intimidate them.
Attorney Scott Freeman, representing the Arizona Free Enterprise Club and the Center for Arizona Policy, acknowledges that Maricopa County Superior Court Judge Scott McCoy rejected his bid to void Proposition 211. The judge ruled in June that there is nothing unconstitutional about the voter-approved measure designed to prohibit “dark money’’ in political races.
But Freeman now says that even if that is the case, a point he is not conceding, McCoy should say his clients have shown that, at least in their case, the law “restricts plaintiffs’ ability to freely speak and disturbs their private affairs.’’ He wants the judge to exempt the two groups and their donors from having to live under terms of the law.
McCoy is likely to consider the pleas, as he essentially told Freeman in June, when he refused to void the law, that the groups could seek an exemption. The judge noted, however, that would require either group 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.’’
“Harassment and retaliation” fear
The new bid contains affidavits from two individuals, neither of whom is identified, who claim they are concerned about the possibility their names will be disclosed because they give to organizations that try to influence elections.
One claims “a reasonable probability that me or my family will be subject to a serious risk of physical harm’’ and “other forms of harassment and retaliation.” The other says disclosure “will lead to harassment, retaliation, and other harms to me and possibly my employer.’’
Both groups also cite what they say have been threats to their staffers. They say some people have said they may choose not to donate any more if their names become public.
But it’s an open question whether McCoy will decide that CAP and the Free Enterprise Club should get a special exemption from the disclosure requirements.
In his June ruling, the judge pointed out that Proposition 211 already has a escape clause. It allows any donor to keep a name secret if they 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.’’
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 — must publicly disclose anyone who has given at least $5,000.
It says those recipient groups must trace the money back to the original source.
Until now, a donation or expenditure could be listed as coming from some group with a name like “Arizonans for Good Things,’’ with no clue who formed the group. This law ensures that names of those who financed the group also must be made public.
Judge: Law deters corruption
The challenging groups contend that 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 Freeman, who is with the Goldwater Institute which represents the two groups.
In his June ruling, however, McCoy said states are free to enact restrictions if they are “substantially related to sufficiently important governmental interests.’’ He said Proposition 211 fits within that definition.
McCoy also said disclosure laws deter corruption “by permitting voters to assess whether donors receive post-election favors.’’
Freeman is hanging his arguments not on First Amendment rights in the U.S. Constitution — arguments McCoy previously found unconvincing — but instead on the Arizona Constitution.
One provision of the state’s Declaration of Rights says “every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.’’
“The Arizona Constitution’s protection for free speech provides broader protections for free speech than the First Amendment,’’ Freeman said. “A law that does not violate the First Amendment may still violate the Arizona Constitution.’’
That applies here, he said, because forced disclosure of the names of donors may make membership in a group less attractive and therefore impair the ability of the group to express its message.
“The act penalizes and deters speech and dissuades plaintiffs and other similar organizations from engaging in campaign media spending and donors from contributing to plaintiffs and other similar charities,’’ Freeman said.
McCoy, however, has so far proven cool to any claims that there is a state constitutional right to the kind of secrecy Freeman wants for his clients.
“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 in his June ruling.
No date has been set for a hearing on the new request for an injunction.
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