Defending Transparency for Campaign Spending in Arizona — Center for Arizona Policy, Inc., et al., v. Arizona Secretary of State, et al. (State-Level Challenge)

In December 2022, the Center for Arizona Policy, the Arizona Free Enterprise Club, and two anonymous plaintiffs filed suit against the Arizona Citizens Clean Elections Commission (CCEC) and the Arizona Secretary of State, seeking to overturn the newly enacted Proposition 211, also known as the Voters’ Right to Know Act.

Arizona voters overwhelmingly approved Prop 211 in November 2022 with 72% in support. By shining light on the original sources of secret spending, also called “dark money” campaign contributions, the Act enhances robust debate and provides voters with information critical to choosing, and holding accountable, their elected leaders.

The Act requires major campaign media spenders to disclose the original sources of large donations they receive, including information about persons who act as intermediaries between the original sources of money and the spender. Those spenders must also put their donors on notice that their money may be spent to influence elections and give them an opportunity to opt out of having their donations so used.

On January 13, 2023, CLC Action filed a motion to intervene in the suit on behalf of Voters’ Right to Know, the committee originally formed to create and support Proposition 211 as a ballot initiative. Voters’ Right to Know was approved as an intervenor on March 27, 2023 and will help defend the act alongside the Citizens Clean Elections Commission, the Arizona Secretary of State, and the Arizona Attorney General.

What’s at Stake

Before the passage of Proposition 211, Arizona’s existing campaign finance disclosure system was described as “one of the most pro-dark-money statutes imaginable,” resulting in a flood of secret spending each election cycle. 

The plaintiffs argue that Arizona’s new traceback disclosure and disclaimer provisions under Prop 211 violate their rights under the Arizona State Constitution, particularly the rights to speak freely, to undisturbed private affairs, and to a government based on the separation of powers. They seek to have the Act declared unconstitutional and unlawful in its entirety, undermining the will of the voters and the voters’ right to know who is spending to influence their vote in Arizona elections.

The U.S. Supreme Court has consistently upheld disclosure and disclaimer laws as important transparency measures that protect citizens’ right to be informed voters. In Citizens United v. FEC, the court held that “[d]isclaimer and disclosure requirements . . . impose no ceiling on campaign-related activities . . . and do not prevent anyone from speaking.” Furthermore,  “disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.”

CLCA and Voters’ Right to Know argue that the Voters’ Right to Know Act both promotes First Amendment values and satisfies the Arizona Constitution, protecting the voters’ informational interest without limiting any person’s right to “freely speak, write, and publish on all subjects,” including public campaign media spending, under Article II, Section 6 of the Arizona Constitution.
 

The U.S. Supreme Court has consistently upheld disclosure and disclaimer laws as important transparency measures that protect citizens’ right to be informed voters, holding in Citizens United v. FEC that “disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.” The Court further noted that disclaimer and disclosure requirements “impose no ceiling on campaign-related activities . . . and do not prevent anyone from speaking.”

CLCA and Voters’ Right to Know assert that disclosure laws like the Voters’ Right to Know Act enhance, rather than constrain, the free speech necessary to sustain our democracy. Prop 211 promotes First Amendment values, providing voters with critical information about the people behind campaign media spending and contributions without interfering with a spender’s right to speak.