Terry Goddard is hiding the ball on Prop 211

Former Attorney General Terry Goddard gave his latest initiative the moniker Voters’ Right to Know Act. Unfortunately, after reading the details of Prop 211, which voters approved in November 2022, it should have been named the Speech Czar Creation Act. (Photo by Pexels)

Terry Goddard gave his latest initiative the moniker Voters’ Right to Know Act. Unfortunately, after reading the details it should have been named the Speech Czar Creation Act.

Throughout the campaign for Prop 211 and now as the law is challenged in court, the former Arizona Attorney General has insisted that his initiative “surgically focuses on disclosing large political contributions, knowingly given to be spent on media campaign ads, and nothing else.”

Heather Lauer

If only that were true. Of course, large funders of political campaign ads should be – and already are – disclosed to the public. But the government can’t just redefine “campaign spending” to mean any political speech it doesn’t like.

That’s what the controversy over the law is all about. Courts have spent generations figuring out what types of spending and speech can be regulated in election campaigns. Arizona’s new law ignores that legal precedent and puts privacy and free speech at risk in the process.

Take those “media campaign ads,” for example. You are probably imagining an attack ad from a group you’ve never heard of in the heat of election season. But the new law covers much, much more.

For instance, the law regulates as campaign spending any “research, design, production, polling, data analytics… or any other activity” that the Citizens Clean Elections Commission (CCEC) determines to be “promoting, attacking, supporting, or opposing” a candidate or ballot measure. It should go without saying that research and polling are not ads, so Goddard’s claim is already false.

Moreover, how can any law with a catch-all term like “any other activity” be described as surgical or carefully targeted?

Here’s a more accurate description of the law: Prop 211 empowers the CCEC to force nonprofits to expose their supporters’ names and home addresses if they engage in any activity that the CCEC deems to have promoted or attacked a candidate or ballot measure, even incidentally.

This includes public communications – another term the law defines as expansively as possible – about a legislator’s stance on a policy issue or their voting record if that same legislator is running for office. This will intimidate nonprofit groups into not debating policy issues during the legislative session, due to the way Prop 211 was written.

That’s a big problem for nonprofits and the Arizonans who support them. Donor privacy is a key tenet for many philanthropic and religious organizations. These groups often speak out about pending legislation or government actions that could benefit or harm the communities they serve. Now they will have to think twice: If we voice an opinion on a state senator’s bill, will the CCEC decide we are “promoting” or “attacking” her reelection campaign?

There’s no way of knowing. That uncertainty alone will cause many groups to stay silent when they would have ordinarily spoken out. Others will divert resources from fulfilling their missions to hire specialized and expensive attorneys to hold their hand every step of the way.

Worse still, the new law’s restrictions on speech will go into effect six months before any election. That arbitrary time period covers key parts of the legislative session. As a result, groups with no interest in elections whatsoever will be impacted by these draconian measures.

Legal experts have long warned about the vagueness of the “promote, attack, support, or oppose” standard. It is rarely implemented because it blurs the line between campaign speech and policy advocacy to the point that people can’t know when they are breaking the law. Instead of providing clear answers, Prop 211 empowers the CCEC to decide as a de facto speech czar.

Goddard’s claim that the Supreme Court has already blessed the law is another misdirection. The Court has never faced a law as sweeping as this one. In the past, it has upheld disclosure requirements only after carefully limiting what types of organizations, donors, and speech they apply to. It is in precisely those areas that the new law breaks from established precedent.

The scenarios where Americans can be forced to publicly report their beliefs and associations are the exception, not the rule. As recently as 2021, the Supreme Court struck down a California demand that nonprofit organizations reveal their donor lists to the state. Privacy offers a vital shield to the vulnerable and ensures all Americans are free to exercise their fundamental rights.

One of those rights is the freedom to join together with fellow citizens in support of a cause. Prop 211 empowers the CCEC – a commission without any oversight – to determine when a group has crossed the line from speaking about issues to speaking about elections. Despite Terry Goddard’s efforts to downplay how this threatens Arizonans’ First Amendment rights to support causes they care about, make no mistake: Prop 211 puts your privacy – and countless worthy nonprofits – at risk.

Heather Lauer is the CEO of People United for Privacy, a nonprofit that defends the First Amendment rights of all Americans – regardless of their beliefs – to come together in support of their shared values.