The Arizona Supreme Court will hear arguments Thursday in a challenge to Proposition 211, known as the Voters Right to Know Act. The measure generally requires groups that spend a certain amount of money to try to influence elections to disclose where that money comes from.
The initiative won the approval of 72% of voters in 2022, but it’s been the subject of litigation on both the state and federal levels since.
Howie Fischer of Capitol Media Services joined The Show to talk about how we got here and what the justices are likely to hear.
Full conversation
MARK BRODIE: What are the arguments the challengers are making here?
HOWARD FISCHER: What this really comes down to is an argument between the right to privacy and the First Amendment right to know. This is crucial because the challengers are saying, look, Arizona has a very specific right of privacy in its constitution. It’s even broader than in the federal Constitution, and they’re arguing that forcing people who contribute to an organization to have their names made public interferes with their rights to privacy.
The problem with that is that when voters approved Prop. 211, they said, but we have a right to know in fact who’s trying to contribute to campaigns. I mean, look, we’ve had a situation in Arizona prior to Prop. 211 where you’d have, if you give directly to a candidate, your name is disclosed, that’s clear, you know, it shows up on campaign finance reports.
If you give to a group that’s called Arizonans for Arizona. And they in turn spend money on independent expenditures for a candidate, the only thing that shows up is that Arizonans for Arizona spent a lot of money, it doesn’t say maybe that a million dollars of that came from a special interest group, and the argument is voters need to know because they, it may affect their decision.
Now, we actually had a very good example of that many years ago back in 2014. A number of groups put more than $10 million into successful efforts to elect Republicans to the Corporation Commission. A couple of years later, the commission approved a 4.5% rate hikes for Arizona Public Service. But we didn’t know until five years later that it was Pinnacle West Capital Corporation, which is the APS parent, that they’ve been the one to give money to the Free Enterprise Club and other organization called Save Our Future Now, and that that money was, for lack of a better word, that organization, for lack of a better word, was laundering the money and giving it to help elect the Republicans and help defeat the Democratic candidates.
Now, would people want to know that? That’s the argument by the state, by people like Terry Goddard who pushed for Prop. 211, that people deserve to know that information. The argument by the challengers here in terms of, you know, from the Goldwater Institute is that’s nobody’s business.
BRODIE: Howie, does the fact that this initiative was so overwhelmingly supported by voters when it was on the ballot, does that have any play here? Does that matter at all?
FISCHER: Well, strictly speaking, it doesn’t matter to the court. The court doesn’t care if it won by 50.1% or if 99% of voters supported it. It still comes down to, what does the Constitution allow? And you’ve got the whole issue of where is the right, again, particularly we come back to the Privacy Act. The Privacy Act in the Arizona Constitution spells out that, quote, “every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” The last provision is if you say something that’s a lie, you could get sued for libel.
And the argument is that by Andrew Gould, who’s one of the lawyers for Goldwater, is that the government can’t force somebody’s private decisions on who to fund, particularly through another group, to be made public. And the problem with that is that it is true the Constitution is broader, but the lower court judges looked at that, also pointed out that the Arizona Constitution has specific provision requiring the Legislature to provide for campaign finance disclosure laws. So you really have two conflicting provisions here.
Well, now it’s important to note that this is not just the Arizona courts that have ruled that way because remember the Goldwater Institute lost at the trial court level. They lost at the appellate court level, and now they’re going to the Supreme Court. There was also a separate case filed by something called for Americans for Prosperity. This is an organization founded years ago by the Koch brothers, very conservative, and they tried to present the same constitutional arguments.
And Judge Roslyn Silver in federal court said that their arguments were a quote “strained reading of the law,” calling their arguments hard to follow, and even calling the reading of the statute implausible and divorced from context. And so she said disclosure regimes aimed at identifying who’s speaking are only effective if the disclosures identify the speaker. So she said it’s perfectly constitutional under the federal Constitution and as the lower courts here have said, it’s perfectly constitutional under the Arizona Constitution.
Now, what will the Arizona Supreme Court do? You know, we have a seven-member court. The court agreed to take it up because it only takes three of the seven justices to put a case on the calendar. But the Goldwater Institute and the challengers need four of those justices to go along with their arguments. Where they’ll get that, we’ll find out probably in a couple of months.
BRODIE: Well, I was going to ask, Howie, if there’s any reason to think that the Goldwater Institute, the challengers, will, will try different arguments than the ones that, as you point out, have not been that successful in the courts so far, or if they’re maybe just counting on a different group of judges hearing the same arguments and feeling differently about them.
FISCHER: Well, it’s a little bit of both. I mean some of it gets really deeply in the weeds in terms of whether the right to privacy is subject to strict scrutiny or or or relaxed scrutiny under the Constitution, and that’s an argument that only a lawyer could love, but essentially they’re presenting the same arguments right to privacy and the right to be left alone under the Arizona Constitution.
And that becomes a strong argument. Oh look, we’ve got a lot of folks who are interfering with everyone’s right to privacy. The whole argument with doxing, and that’s been in fact been one of the arguments of people, you know, like, like the Center for Arizona Policy, which is one of the plaintiffs, they say people who give to us and then we give to other groups are gonna have their names disclosed and they’re, they’re gonna be harassed because of the fact that they support us.
But when you’re trying to influence politics, when you’re trying to elect someone governor, when you’re trying to defeat a ballot measure, so far the courts have said it’s really a simple question. You have voluntarily put yourself into this position. If you don’t want to be doxed, if you don’t want to have your name disclosed, don’t say anything, don’t participate. Is that unfair? Is that silencing people who don’t want to be silenced?
Well, the courts have ruled all the way up to the U.S. Supreme Court that money is speech. I mean that goes back to the whole United case, the idea that you cannot, you know, limit the amount of money that we spend on these independent expenditures. Well, if money is speech. Then the question becomes, you know, are you interfering with the individual speech?
And I think that’s going to be what the court is going to have to face and whether four of the seven justices are going to have to decide one way or the other which side they fall on.
BRODIE: Yeah, and they’ll be hearing those arguments just a little bit later on this morning.