PHOENIX (Legal Newsline) - An Arizona law requiring organizations that support political campaigns to report the ultimate source of donations more than $5,000 doesn’t violate freedom of speech, an appeals court ruled, rejecting arguments the measure was unconstitutional and threatened donors with violence.
Arizona voters passed Proposition 211 in 2011, a measure intended to reduce the influence of “dark money” on state elections. The law requires any group that spends money on public communications supporting or opposing political candidates, including on research and polling, to disclose the identity of anyone who contributes more than $5,000 during an election cycle.
Those donors, in turn, must disclose the identity of anyone who contributed more than $2,500 to them.
The Center for Arizona Policy and the Arizona Free Enterprise Club challenged the law, arguing violated their constitutional right to free speech and was too vague to give donors advance notice of what would violate it. Publicizing the names of donors could also subject them to harassment and threats, CAP argued, citing the abuse it had received including being called “ignorant fascists,” “race baiters,” and “zealot tyrants.”
The suit drew legal briefs from a wide variety of organizations, including the Goldwater Institute, the Arizona Chamber of Commerce and Voters’ Right to Know.
A trial court dismissed their case, and the Arizona Court of Appeals, in a Nov. 8 decision by Judge Jennifer Campbell, affirmed.
Both courts subjected the law to “exacting scrutiny,” a less stringent standard of review than “strict scrutiny” commonly used in freedom-of-speech cases. Under exacting scrutiny, the government need only show a law is “substantially related to sufficiently important government interests” and is “narrowly tailored” to achieve those goals. Under strict scrutiny, the measure must be the least restrictive means of achieving government interests.
Federal courts have used exacting scrutiny to examine election-related laws, the appeals court said, because they burden the ability to speak and spend money supporting candidates, but don’t prevent anyone from speaking.
The plaintiffs argued Arizona should use strict scrutiny anyway, because the Arizona Constitution contains broader speech protections. The appeals court disagreed, saying the state constitution orders the legislature to enact a disclosure law to publicize all campaign contributions and expenditures.
“By expressly mandating the disclosure of campaign contributions, the framers of the Arizona Constitution in fact highlighted an intent to compel the disclosure of the identities of persons and groups contributing money to influence elections,” the court said. The court rejected another argument, that the law doesn’t address require disclosure of contributions to non-campaign organizations, saying there is no evidence legislators meant to exclude them from the overall purpose of the law, which was to fight corruption in elections.
Without disclosure, the court said, anonymous donors can contribute to entities that support a candidate, then cash in on those donations after that official is elected. Voters also need to know about out-of-state donors that attempt to influence Arizona elections and referendum measures, the court said.
The threshold dollar amounts aren’t arbitrary, the court said, because they “more narrowly target the act” by removing restrictions on “ordinary citizens who make modest campaign donations.”
As for threats to donors, the court noted CAP has been around for 29 years and follows existing law by identifying donors to its own political action committee. There was no evidence protesters threatened violence or damaged property, the court said. One staffer’s car was keyed, the court said, but no one witnessed the vandalism and no message was scraped into the paint.