By Howard Fischer, Capitol Media Services
PHOENIX -- Two groups involved in Arizona politics are making a new bid to hide the names of their donors, with one saying that "government officials'' may threaten or intimidate them.
Attorney Scott Freeman acknowledges that Maricopa County Superior Court Judge Scott McCoy rejected his bid to void Proposition 211. The judge ruled in June that there is nothing unconstitutional about the voter-approved measure designed to prohibit "dark money'' in political races.
But Freeman now says that even if that is the case, a point he is not conceding, McCoy should say that his clients have shown that, at least in their case, the law "restricts plaintiffs' ability to freely speak and disturbs their private affairs.'' So he wants the judge to exempt the Arizona Free Enterprise Club and the Center for Arizona Policy -- and their donors -- from having to live under the terms of the law.
McCoy is likely to consider the pleas, as he essentially told Freeman in June, when he refused to void the law, the groups could seek an exemption. The judge noted, however, that would require either group to show "reasonable probability that disclosure of its contributors' names will subject them to threats, harassment, or reprisals from either government officials or private parties.''
The new bid does contain affidavits from two individuals, neither of whom is identified, who claim that they are concerned about the possibility that their names will be disclosed because they give to organizations that try to influence elections.
One claims "a reasonable probability that me or my family will be subject to a serious risk of physical harm'' and "other forms of harassment and retaliation.'' The other says disclosure "will lead to harassment, retaliation, and other harms to me and possibly my employer.''
Both groups also cite what they say have been threats to their own staffers. And they say some people have said they may choose not to donate any more if their names become public.
But it's an open question of whether any of that will convince McCoy to decide that CAP and the Free Enterprise Club should get a special exemption from the disclosure requirements.
In his June ruling, the judge pointed out that Proposition 211 already has an escape clause of sorts. It allows any donor to keep a name secret if he or she can convince the Citizens Clean Elections Commission there is a reasonable probability that disclosure "would subject the source or the source's family to a serious risk of physical harm.''
Approved by voters in November by a nearly 3-1 margin, the initiative says that any organization that spends more than $50,000 on a statewide race -- half that for other contests -- has to publicly disclose anyone who has given at least $5,000.
More to the point, it says those recipient groups have to trace the money back to the original source.
Until now, a donation or expenditure could be listed as coming from some group with a name like "Arizonans for Good Things,'' with no clue who formed that group. This ensures that those who actually have financed that organization also must be made public.
The challenging groups contend all that interferes with the rights of donors.
"The act violates Arizonans' right to speak freely by chilling donors from supporting causes they believe in and wish to support, lest their charitable giving become public knowledge,'' argued Freeman of the Goldwater Institute which is representing the two groups.
In his June ruling, however, McCoy said states are free to enact restrictions if they are "substantially related to sufficiently important governmental interests.'' And he said Proposition 211 fits within that definition.
McCoy also said disclosure laws deter corruption "by permitting voters to assess whether donors receive post-election favors.'' And the judge said that's true in the case of Proposition 211 and its requirements to disclose the original source of dollars "which prevents cloaking actual contributors by using intermediaries.''
The judge acknowledged arguments that the new disclosure requirements might result in fewer people, unable to shield their identities, being willing to donate. And that, in turn, could affect the ability of the Free Enterprise Club and the Center for Arizona Policy to spend money to influence campaigns.
He said, though, that disclosure "certainly in most applications appears to be the least restrictive means of curbing the evils of campaign ignorance.''
Now Freeman has returned to court with new allegations.
"The evidence of past threats, harassment, and reprisals supports plaintiffs' claims that Prop 211, as applied to them, will inhibit plaintiffs' future speech related to public policy issues,'' he told the judge. Anyway, he said, there is no governmental interest served by requiring an organization like CAP to disclose its donors because it may take a position on certain laws or ballot propositions.
"The public knows CAP's position on public policy issues,'' Freeman said. That include opposition to abortion, same-sex marriage and enumerated legal rights based on sexual orientation as well as support for universal vouchers and a ban on biological males competing in female school sports teams.
"Requiring CAP to identify all those who donated more than $5,000 to it during an election cycle -- doxxing them regardless of whether the donor endorsed the particular message -- only provides certain members of the public, and perhaps government officials, information that will allow them to threaten or intimidate the donor,'' Freeman said.
Freeman is hanging his arguments not on First Amendment rights in the U.S. Constitution -- arguments that McCoy previously found unconvincing -- but instead on two sections of the Arizona Constitution.
One provision of what the state calls its Declaration of Rights says "every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.''
"The Arizona Constitution's protection for free speech provides broader protections for free speech than the First Amendment,'' Freeman said. "A law that does not violate the First Amendment may still violate the Arizona Constitution.''
How that applies here, he said, is that forced disclosure of the names of donors may make membership in a group less attractive and therefore impair the ability of the group to express its message.
"The act penalizes and deters speech and dissuades plaintiffs and other similar organizations from engaging in campaign media spending and donors from contributing to plaintiffs and other similar charities,'' Freeman said.
He also cites another state constitutional provision which says "no person shall be disturbed in his private affairs, or his home invaded, without authority of law.''
What that prohibits, Freeman said, is government efforts to investigate a private organization's financial dealings or any move to compel disclosure of financial records, books and files. And he pointed out when that was written in 1912 there were no laws similar to Proposition 211. And that, he said, made the expenditures of groups like his client "a private affair.''
McCoy, however, has so far proven cool to any claims that there is a state constitutional right to the kind of secrecy that Freeman wants for his clients.
"In fact, Arizona's Constitution (ITALICS) required (ROMAN) the first Legislature to pass an election disclosure law to publicize 'all campaign contributions to, and expenditures of campaign committees and candidates for public office,' '' the judge wrote in his June ruling.
McCoy also noted the state constitution requires enactment of voter registration and other laws "to secure the purity of elections and guard against abuses of the elective franchise.'' And a third provision bars corporations doing business in the state from making political contributions to influence any election.
"The framers thus established a constitutional commitment to pure elections, to prevent corporate influences, and to publicize sources of campaign funds,'' he wrote.
"The court finds it unlikely that the same framers somehow envisioned that Arizona's
Free Speech Clause would reach the (campaign finance) disclosures at issue.''
No date has been set for a hearing on the new request for an injunction.
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