In this past November’s election, Arizona voters were misled into passing Prop 211. Billed as the “Voters’ Right to Know Act” that’s supposed to “Stop Dark Money” in our state, it sounds harmless enough. But that was all a part of the clever messaging from its campaigners—like former Arizona Attorney General Terry Goddard—to scare the average person into voting “yes.”
Unfortunately, it worked. But Prop 211 is unconstitutional, and that’s why the Arizona Free Enterprise Club, in partnership with the Center for Arizona Policy and the Goldwater Institute, filed a lawsuit to stop the Act from being enforced.
Prop 211 Threatens Donor Privacy
Every American should be free to peacefully support causes they believe in without being harassed or intimidated. But the broadly written Prop 211 puts this in significant jeopardy.
The Act requires groups or entities that spend over $50,000 on “campaign media spending” in a statewide race or $25,000 in any other race to disclose the names, mailing addresses, occupations, and identities of employers of donors who gave more than $5,000 to the organization during that election cycle. And it requires the organization to disclose its top three donors regardless of whether their money was used for “campaign media spending.”
This is just another attempt to target, harass, and dox conservatives who won’t submit to the Left’s agenda. And if you don’t think this happens, think again. Just ask Brendan Eich, who was forced to step down from his position as Mozilla CEO several years ago after it was made public that he donated money to support a California initiative that aimed to define marriage as between one man and one woman. Or you could also talk to our staff here at the Club, who have received numerous phone calls and voicemails threatening violence—including one staff member whose car was vandalized for engaging in public communications on our behalf.
Prop 211 Threatens Free Speech
Both the U.S Constitution and the Arizona Constitution guarantee citizens the right to speak freely, which includes the right to not be forced to speak. Prop 211 not only violates this right for donors by silencing them from supporting causes they believe in, but it impairs the speech of nonprofits like the Club as well.
The Act’s definition of “campaign media spending” includes any public communication that “promotes, supports, attacks, or opposes” a candidate within six months of an election or even “refers” to a candidate ninety days before a primary election. In other words, pointing out a favorable (or unfavorable) vote by an incumbent lawmaker in an article, blog, or social media post by the Club would trigger enforcement and compliance with Prop 211 starting in January of an election year. And if you think that by simply avoiding traditional campaign media spending (sending out a mailer, airing a TV commercial, etc.) will protect you from Prop 211, think again. The measure applies to all “research, design, production…or any other activity conducted in preparation for” a public communication about a candidate. Since writing articles and producing social media posts have a cost, we would have to calculate and regularly track how much staff time and office resources are used to produce these materials.
This level of onerous accounting is almost impossible and would drastically limit the Club’s public communications during legislative sessions and through the campaign season. That is why, as we state in our lawsuit, that Prop 211 will force us to cease many of the activities and publications that are not even campaign related in order to avoid the absurd dragnet and complex regulatory labyrinth established by this Act.
On top of that, this hopelessly vague standard is left to the loose discretion of the Arizona Clean Elections Commission—a group that has often been at odds with our organization in past ballot initiative campaigns and litigation, including a landmark U.S. Supreme Court case that significantly reduced the Commission’s power.
Now, it’s in the hands of the Maricopa County Superior Court, who may want to take a look at another recent U.S. Supreme Court decision in the case of Americans for Prosperity v. Bonta. In its decision, the high court struck down a similar law out of California because the First Amendment protects the freedom to support organizations and nonprofits anonymously. That means Prop 211 is unconstitutional, and the Maricopa County Superior Court needs to make that clear.
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