Arizona groups get second chance to fight ‘dark money’ law

Currently, donors who give at least $5,000 to groups that spend more than $50,000 on a statewide race or $25,000 on other races must be identified, and they can opt out of having their money spent on ads to preserve their privacy.

It’s all part of the Voters Right to Know Act, which passed with heavy support from Arizonans in 2022. An appeals court had dismissed all challenges to it before the Supreme Court opened the door for one of them to proceed.

“This is an important victory for every Arizonan who believes people should be free to support the causes they care about without fear of government-compelled disclosure,” said Scott Freeman, Senior Attorney at the Goldwater Institute, which represented the plaintiffs.

“The Arizona Supreme Court recognized that our state constitution independently protects free speech and that citizens are entitled to prove that compelled donor disclosure violates those protections.”

The plaintiffs are the Center for Arizona Policy, the Arizona Free Enterprise Club and two anonymous individuals who fear retaliation if their identities are revealed. The Institute for Free Speech, the Arizona Chamber of Commerce & Industry and Americans for Prosperity were among the groups that filed amicus briefs in the case.

Chief Justice Ann Timmer authored the majority opinion, which held the plaintiffs and their supporters failed to show the act is facially unconstitutional under Arizona’s Speak Freely Clause, similar but not identical to the First Amendment.

The unnamed plaintiffs worried people would not be able to “speak freely” with their political support.

“The amended complaint includes no factual allegations about donors to other organizations, about charities or advocacy groups subject to the Act, about upstream contributors, or about whether the Act’s application to most campaign media spending would expose contributors to harassment or intimidation,” Timmer wrote.

“Plaintiffs’ bare assertion that the Act ‘penalizes and deters speech’ by Plaintiffs ‘and other similar organizations [to CAP and FEC]’ is both limited and conclusory.”

But an “as-applied” challenge under the Speak Freely Clause does survive for a ruling by the trial court. There, plaintiffs will argue the disclosure requirements subject the plaintiff groups’ supporters to harassment and retaliation.