Conservative group files second challenge to anti-dark money law

Proposition 211 or the “Voters’ Right to Know Act” received 72% of the vote in Arizona, making it the most popular statewide proposition on the Arizona ballot last November.

Americans for Prosperity filed a federal lawsuit on Friday seeking to block Proposition 211, the anti-dark money ballot measure that Arizona voters passed by an almost three-to-one margin in November.  

The libertarian conservative advocacy group argues that the law would create an unconstitutional “chilling effect” on speech, violating the First Amendment.  

It’s the second lawsuit challenging the statute created by the citizens’ initiative. The first challenge was filed by the Free Enterprise Club in Maricopa County Superior Court in December. 

“The First Amendment safeguards the right of individuals to donate to private advocacy organizations of their choosing without undue risk that they will be subjected to their identities being disclosed or other chilling by the government,” attorneys for AFP wrote in a March 17 complaint filed in U.S. District Court in Phoenix.  

“Arizona’s recently enacted statute … trammels that right by subjecting countless Americans nationwide to governmental doxxing for doing nothing more than supporting their chosen nonprofit organizations and charities.” 

AFP’s attorneys also say the law has the effect of “compelling association” by associating donors with the activities of the organizations they give money to – something they argue is another First Amendment violation. 

The plaintiffs are asking a federal judge to block the implementation and enforcement of the law, which would impose disclosure requirements on some political donations. 

Terry Goddard

Terry Goddard, a former Arizona Attorney General who leads the group that got Proposition 211 on the ballot, said the challenge shows that deep-pocketed influence groups will go to significant lengths to preserve laws that allow them to avoid donation disclosure. 

“The people that deal in dark money have a huge vested interest to protect, and they’re going to do everything they can to protect it,” he said. 

The case was filed by Washington attorneys at Quinn Emanuel Urquiza & Sullivan and the Phoenix office of Greenberg Traurig. It names Secretary of State Adrian Fontes and officials with the Arizona Clean Elections Commission as defendants – the Secretary of State and Clean Elections would both play a part in enforcing the law. 

Goddard said that his advocacy group, Voters Right To Know, had crafted the ballot measure carefully with an eye towards withstanding any future challenges.  

And he pointed to a Ninth Circuit Court of Appeals ruling earlier this month that rejected a challenge to a similar San Francisco city ordinance that imposed disclosure requirements on certain political donations. 

In a March 8 ruling, Judge Susan Graber affirmed a lower court’s ruling that found that the challengers hadn’t demonstrated that donors would actually be deterred by disclosure requirements, and that the burden on donors was outweighed by the benefits of knowing whose money was behind different political messages. 

Goddard said that case and others like Citizens United indicate that required donor disclosure isn’t a First Amendment violation. 

“There is a long series of cases going back decades that basically say that this is not a free speech issue. That the First Amendment does not give donors a right to hide,” Goddard said. 

The law requires that organizations that spent $50,000 or more on media buys for statewide campaigns or $25,000 or more on other campaigns must disclose the source of any donations of $5,000 or more. Proposition 211 passed with 72% support in Arizona’s November 2022 election. 

Proponents say it will help combat the impact in Arizona politics of so-called dark money – political spending that goes through nonprofit groups who don’t have to disclose their donors.  

But attorneys for AFP argue the law could lead to donors receiving threats – and to people getting associated with causes they aren’t really connected to, because donors might not be aware of or support campaigns undertaken by a group they give money to. 

“Plaintiffs and their associates have fierce critics, and their opponents regularly strive to identify the organizations’ donors in order to chill support. Those donors who have been public in their support have, as a result, too often faced boycotts, personal threats, and even violence,” the attorneys wrote. The initial complaint doesn’t include any specific example of alleged donor deterrence. 

In the 2022 Arizona Attorney General campaign, one candidate complained that donors were turned off by disclosure. Abraham Hamadeh, the Republican candidate for AG, said that a news outlet publishing the name of individuals who donated to his campaign amounted to “donor intimidation.” 

Goddard said that the arguments about deterrence and doxxing are an attempt to confuse the separate issues of free speech and donor disclosure. 

“If you have to disclose you’re still able to speak – you just have to disclose,” he said.