Arizona’s Proposition 211 and the Fight for the Voters’ Right to Know

August 22, 2023
Issues
Campaign Finance
Arizona flag in desert.

In 2022, Arizona voters overwhelmingly passed a ballot initiative establishing the nation's most comprehensive election spending transparency law: Proposition 211 (Prop 211), or the Voters’ Right to Know Act. Campaign Legal Center (CLC) played a crucial leadership role in the formulation of Prop 211 and is now defending the law in court. 

The story of Prop 211 is the story of CLC as a thought leader, trusted partner and defender of the right to know who is spending huge sums of money to influence our elections.

Undeterred by the well-organized, well-funded forces opposing progress, CLC has worked patiently and methodically to identify opportunities to promote the values of transparency and responsive, accountable government—prioritizing solutions that can withstand legal muster and always focusing on advocating for the rights of voters in our democracy.

 

The CLC solution to election spending transparency

Starting in 2017, CLC’s campaign finance lawyers embarked on an ambitious effort to craft model legislation that would maintain a voter’s right to know the original sources of election spending. The overarching goal was to strengthen election spending transparency laws. 

The Supreme Court’s 2010 decision in Citizens United v. FEC opened the floodgates to unlimited election spending by wealthy special interests. Those special interests soon realized they could keep voters in the dark about their activities by funneling their money through generic-sounding front groups whose names would appear on TV, radio and digital ads. Example: “Ad paid for by the Americans for Freedom PAC.” This phenomenon gave rise to the term “dark money.”

Members of the campaign finance team gather together around a table in a meeting in CLC's office.

CLC campaign finance experts, including David Kolker, Senior Counsel for Campaign Finance and Tara Malloy, Senior Director for Appellate Litigation and Strategy, saw an opportunity to solve this problem through new transparency laws that would be more comprehensive than previous legislative proposals. What followed was a years-long, painstaking and deliberative process aimed at assessing the pros and cons of various legislative options.

The effort put CLC’s staff’s considerable expertise to the test. David had joined CLC in 2016, after spending nearly 20 years as a campaign finance attorney at the Federal Election Commission (FEC), where he led the agency’s litigation division for several years. Tara, one of the longest-tenured attorneys at CLC, had by 2017 solidified her place as a seasoned campaign finance litigator, involved in some of the most important modern-day campaign finance cases including Citizens United and McCutcheon v. FEC.

David, Tara and other CLC attorneys with decades of campaign finance experience carefully wrote from scratch new model transparency laws and refined those proposals to avoid weaknesses that could be exploited in court by the foes of election spending transparency. For example, these experts designed a system that would allow donors to opt-out of having their money spent on ads, an important and unique component for protecting the law from legal challenges and balancing the interests of donors and spenders.

The final product was a robust, detailed legislative solution to the dark money problem that would effectively target the worst campaign spending abuses and would give voters the information they need to make informed decisions. The next step was finding an avenue for advancing CLC’s model legislation.

Putting CLC’s Election Transparency Solution Into Action

In 2014, former Arizona Attorney General Terry Goddard knew his state had a big problem with secret spending in elections. In the years since Citizens United, Arizona had been overrun by wealthy interests spending millions of dollars to influence state and local races while hiding their identities from voters.

Terry Goddard, a man with short gray hair wearing glasses, talks to attendees at an event.
Former Arizona Attorney General Terry Goddard at an event in Arizona in February 2020. Photo by Ben Moffat/Alamy Live News

Following an unsuccessful campaign for secretary of state on a transparency platform, Terry’s quest to pass a law addressing the dark money problem brought him to CLC in 2016, marking the beginning of a successful and enduring partnership.

Terry and his allies sought to advance a ballot initiative on election spending through a group called the “Voters’ Right to Know” committee and a grassroots coalition called “Stop Dark Money” during elections in 2018, 2020 and 2022.

The working relationship between Terry, David Kolker and other CLC attorneys deepened with each attempt to pass Prop 211. Thanks to the incorporation of ideas painstakingly detailed in CLC’s model legislation, what began as a promising legislative proposal eventually became the most detailed and comprehensive ballot initiative since Citizens United that requires full transparency about the true sources of big election spending.

Following Stop Dark Money’s tireless efforts to overcome the many logistical challenges associated with the initiative process in Arizona, Prop 211 was approved for the 2022 midterm ballot and ultimately received 72% of the vote, a testament to the appeal of election spending transparency across the political spectrum in a deeply polarized state. On that day, Arizonans declared loud and clear their desire to force the donors behind big election spenders out of the shadows and into the light.

What is Prop 211?

Prop 211 strengthens democracy in Arizona by increasing transparency and ending the ability of wealthy special interests to spend vast sums of money on campaign media in support of their preferred candidates without disclosing the original source of that money.

Prop 211 empowers Arizona voters by revealing the original sources of secret spending in state elections. As a result of this law, any group that spends more than $50,000 in Arizona statewide campaigns —or $25,000 on non-statewide campaigns — on political media advertising and related spending will be required to keep track of the large donations it receives and to disclose the original sources of donations exceeding $5,000.

The law has three key components:

  1. 1. Tracing big money: Any big spender on campaign media must track and disclose the original sources of the large contributions it receives and how its money is spent. Its own direct donors must reveal when they’re passing on other large donors’ funds.
  2. 2. Protecting donors: Donors who do not want their money spent on election ads won’t have their money spent against their wishes and will not be subject to these disclosure requirements.
  3. 3. Promoting on-ad disclosure of big donors: The non-partisan Arizona Citizens Clean Elections Commission is directed to adopt rules requiring any election ad run by those who fall within the law’s spending parameters to include a disclaimer disclosing its top three donors.
Learn more about Prop 211 in an FAQ by Stop Dark Money, produced with CLC.

Defending Prop 211 in court

Within months of passage, powerful special interests filed two separate lawsuits —one in state court and one in federal court —challenging the constitutionality of Prop 211. At that moment, the partnership that had begun years before shifted into a new phase, with CLC Action representing the Voters’ Right to Know committee in defense of Prop 211. A third lawsuit was filed in state court in early August of this year challenging the authority of the Arizona Clean Elections Commission, which is tasked with implementing the law. All three lawsuits are aimed at stopping Prop 211 before it can be put to work on behalf of Arizona voters.

CLC staff members Tara Malloy, Catie Kelly and Simone Leeper attend in a Campaign Finance Meeting in the CLC office.

Having worked all along with Voters’ Right to Know in designing the ballot initiative, CLC attorneys and campaign finance experts are perfectly positioned to defend the law.

The contest in both the state and federal cases pits special interests who depend on secret spending to influence politicians and elections in Arizona against voters who want to see a more robust political debate and hold their elected leaders accountable.

As with any substantive legal battle, CLC expects this process to play out over the course of many months, possibly years. As of August 2023, the case in federal court has not proceeded beyond initial motions by CLC and our partners to dismiss the anti-transparency plaintiffs' arguments.

However, there has been notable progress in state court. Following proceedings that included persuasive arguments by David, the Superior Court of Arizona, Maricopa County upheld Prop 211 against a broad attack in a June 22 ruling. Some plaintiffs have been given the chance to go back to the drawing board to reformulate their arguments, but the threat to the law in this case has now been significantly reduced.

The main concern from the point of view of CLC Action’s legal team is the amount of work that will be required should any of these cases proceed to the next phase. As the preeminent campaign finance experts involved with the defense of Prop 211, CLC Action attorneys, including David, will lead efforts to gather evidence, identify witnesses and build a factual record about the history of dark money in Arizona and the nation.

To demonstrate the resources that would be dedicated to this effort, consider the fact that as an FEC attorney, David was part of a team that spent thousands of hours developing a factual record in defense of the Bipartisan Campaign Reform Act of 2002 (also known as McCain-Feingold).

 

Why is Prop 211 legally sound?

Prop 211’s strength as a law is grounded in the First Amendment of the U.S. Constitution, which assures the unimpeded flow of information to preserve the integrity of our democratic system. Political transparency advances the principles of the First Amendment by encouraging the exchange of ideas needed for voters to make informed decisions. The First Amendment’s overarching aim is to promote democratic self-governance and ensure that elected leaders are responsive to voters.

An out of focus statue of Lady Justice in the foreground with a gavel on top of a stack of $100 bills behind it on a desk

While these ideas might seem like common sense, they are fairly new to the world of constitutional law. CLC attorneys play a leading role in advancing this innovative view of our founding document, both through policy advocacy and litigation. Their collaboration with Voters’ Right to Know in Arizona focused on ensuring that Prop 211 reflected CLC’s pioneering legal strategy for fixing our broken campaign finance system.

The campaign finance team’s scholarship on this issue is detailed in a CLC analysis released last November defending Prop 211. Among the arguments is the fact that time and again, the Supreme Court has upheld election-related financial disclosure regimes as constitutional and has noted that disclosure requirements “‘impose no ceiling on campaign-related activities,’ and, ‘do not prevent anyone from speaking.’”

It is for these reasons that CLC feels confident that Prop 211 will survive legal challenges.

 

Ensuring Prop 211 is properly implemented

CLC has a long history of providing expert guidance through the rulemaking process for implementing campaign finance laws, a history dating back to the passage of McCain-Feingold. In the case of Prop 211, Elizabeth Shimek, CLC Senior Legal Counsel for Campaign Finance, is leading the effort to provide insightful comments during the rulemaking process. It’s also worth noting that CLC has a positive relationship with the Arizona Clean Elections Commission.

It is important to note that the rulemaking for Prop 211 will not be as extensive or complex as it has been for other campaign finance laws. Here again, David, Tara and the CLC team had some foresight. Their efforts, in coordination with Voters’ Right to Know, to pass a detailed, comprehensive law via ballot initiative means there are fewer administrative “blank spots” for the Commission to address during the implementation process.

 

Supporting election spending transparency in other states

The passage of Prop 211 put transparency advocates across the country on notice about the possibilities for progress against the tidal wave of dark money.

CLC staff including Elizabeth, State Campaign Finance Director Patrick Llewellyn and Legal Counsel for State and Local Reform Aaron McKean are engaged in a sustained effort to identify similar opportunities in other states and provide the same kind of legal expertise that produced strong legislation in Arizona.

Members of CLC's Campaign Finance Team Gather for a meeting in the CLC office.

In Hawaii, legislators introduced a bill this year—SB 997—that would have required big election spenders to disclose the original sources of the money they spend on elections. Although the bill did not advance this session, it followed on the heels of a similar bill passing the Hawaii Senate in 2021, illustrating the strong support for greater transparency in the Aloha State.

Similarly, in Illinois, HB 3804 would have enacted original source disclosure for big election spenders, while also adopting more robust rules to guard against illegal coordination between candidates and outside election spenders. The bill’s introduction provides a strong starting point for improving the state’s campaign laws.

Legislation in Maine (D 1590) is a pending bipartisan bill to require the disclosure of the original sources of big money spent to influence elections in that state. After some favorable action in a legislative committee this session, the bill will be carried over to a future session of the Maine Legislature.

CLC’s hope is that this is just the first wave in a movement at the state level to pass robust election spending transparency laws.

 

A determined advocate for voters

Our nation has experienced far too many steps backward in the struggle to rein in secret, unaccountable spending in our elections —Citizens United being the most egregious example in recent years.

CLC’s role in the formulation and defense of Prop 211 is a prime example of our leadership in the fight to stop dark money from drowning out the voices of voters. We look forward to seeing the voters of Arizona benefit from this robust transparency law, and our team will continue working to see similar policies adopted across the country.