The group that convinced voters last year to expose “dark money” contributions to political campaigns wants a federal judge to toss a bid by a conservative advocacy group to kill the new law.
In court filings Friday, attorneys for Voters’ Right to Know said there is nothing inherently unconstitutional about ensuring that voters know the true source of funds being spent to influence their decisions on candidates and ballot measures.
“The act, like other disclosure laws, does not limit campaign expenditures or contributions,” wrote attorney David Kolker of the Campaign Legal Center Action. Nor, he told U.S. District Court Judge Roslyn Silver, does it undermine the First Amendment rights of free speech, even though that has been interpreted to include spending money.
“The right to free speech was designed to enable self-government, ensure responsive officeholders, and prevent the corruption of the democratic process,” he said. “Properly understood, disclosure laws like the Voters’ Right to Know Act enhance, rather than constrain, the free speech necessary to sustain our democracy.”
And Kolker said there is research confirming that “knowing the sources of election messaging is a particularly credible informational cue for voters seeking to make decisions consistent with their policy preferences.”
Put another way, being aware of who is really financing commercials, advertising and billboards urging people to vote a certain way can help voters decide if the message is credible.
Hanging in the balance is Proposition 211.
Approved in November by a nearly 3-1 margin, it is designed to outlaw what has been a process where donors can hide their financial involvement in public policy issues by running their campaigns through other organizations with more innocent-sounding names.
Kolker points Silver to 2014 when Pinnacle West Capital Corp., the parent company of Arizona Public Service, quietly funneled $10.7 million into successful campaigns to secure the election of Tom Forese and Doug Little to the Arizona Corporation Commission.
But the legally required campaign finance reports instead showed only that donations were made by the Arizona Free Enterprise Club, the Arizona Cattle Feeders Association, and Save Our Future Now.
Only thing is, the company didn’t disclose the funding until 2019 when finally pressured by the commission. And it was able hide the origins of the cash because state laws at that time allowed donations to run independent expenditure campaigns for or against candidates to be funneled through other organizations, with no requirement for disclosure of who provided the funds.
All that is designed to come to an end with Proposition 211.
It requires public disclosure of the identity of anyone who has given at least $5,000 to any front group. Potentially more significant, it requires any group making political expenditures to trace the cash back to its original source — no matter how many hands it has passed through — and disclose it in public records.
Americans for Prosperity, founded by the Koch brothers, asked Silver to quash the law.
Its attorneys argued the First Amendment protects the rights of individuals to donate to advocacy organizations, like AFB, without fear that their identities would be disclosed. And they said that such disclosure would subject people to “doxxing” simply because they gave money to certain non-profit organizations and charities.
Kolker said the concerns are overblown.
It starts, he said, with the fact that this affects only organizations that spent $50,000 in an election cycle on statewide campaigns or $35,000 on other elections. And donors who contribute $5,000 or less do not have to provide any information.
Kolker also said it appears that the concern of Americans for Prosperity and its separate foundation is that such disclosure might discourage some donors from contributing to various advocacy and other nonprofit organizations.
“This assurance of confidentiality is vitally important and enables plaintiffs’ continued robust participation in the public sphere — whereas Proposition 211’s compelled disclosures vitiate this understanding and threaten to chill continued donations and support for plaintiffs,” argued the attorney for the challengers.
Only thing is, Kolker told Silver, is that the organizations do not actually claim in the lawsuit that they will get fewer donations or that there is a potential for harm.
“Instead, plaintiffs focus on their donors’ purported preference for anonymity and plaintiffs’ past organizational pledges to maintain donor confidentiality,” Kolker said. “But a disclosure law is not unconstitutional simply because an organization has operated with greater secrecy in the past and wishes to continue to do so.”
Kolker acknowledged that courts have struck down some disclosure requirements in cases of organizations that could show some reasonable probability of harassment and reprisal if the names of donors were made public. That includes a claim by the NAACP against an Alabama law and the Socialist Workers’ Party of Ohio.
“Politically powerful actors like AFP, however, are a far cry from the 60-member SWP which was repeatedly unsuccessful at the polls and incapable of raising sufficient funds,” Kolker said.
“Groups who have won this exemption in the past have often had members who suffered governmental harassment and surveillance,” he said. “Plaintiffs do not allege that their organizations have suffered the kind of violence, threats, harassment, or reprisals that warranted exemptions for the SWP and the NAACP.”
A separate challenge to Proposition 211, filed by the Arizona Free Enterprise Club and the Center for Arizona Policy, is pending in Maricopa County Superior Court. It contends that the initiative runs afoul of a state constitutional right of privacy.
The judge in that case is set to hear arguments later this month.e