By Howard Fischer
Capitol Media Services
PHOENIX -- A judge has rebuffed yet another attempt by two special interest groups to hide the names of their donors from the public despite a 2022 voter-approved law requiring their publication.
Maricopa County Superior Court Judge Scott McCoy rejected the latest arguments by the Arizona Free Enterprise Club and the Center for Arizona Policy that disclosing the names of those who finance their efforts to influence elections will harm the organizations, their staffers or their contributors. He called their arguments speculative at best.
McCoy was no more impressed by claims by two people who donate to these organizations -- neither of whom is identified in the lawsuit -- that the law will lead to harassment or retaliation for supporting the positions taken by the organizations.
The ruling comes eight months after the same judge rejected attempts by both organizations to have him declare Proposition 211 and its disclosure requirements a violation of constitutional rights.
But McCoy, in that ruling, gave both groups a separate chance to argue that the law shouldn't be applied to them because they would be subject to threats or harassment. Now, after hearing arguments, he concluded they again failed to make their case.
Scott Freeman, an attorney at the Goldwater Institute which is representing both organizations, said an appeal is planned.
"We respectfully disagree with the judge's decision,'' he said.
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 Arizona,'' 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 argued all that interferes with constitutional rights.
"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.''
But McCoy said at the time he was willing to consider any arguments either group had that should be exempt from the disclosure because of any special risk they faced.
What he got from CAP was a list of its controversial positions on everything from vouchers and legalization of marijuana to its arguments that marriage should be limited to one man and one woman.
CAP President Cathi Herrod said they have been protests, harassing emails and other communications. And Herrod said she and staff have been called various names, like "ignorant fascists,'' "race baiters'' and "medieval throwback horrible anti-woman garbage.''
"Such name calling, offensive comments and criticism are certainly rude,'' McCoy said.
"Many of the comments themselves, however, are protected speech,'' he continued. "And 20 or so nasty comments in nearly 30 years of public advocacy does not demonstrate that CAP itself has been subjected to threats, harassment, and reprisals.''
He also pointed out that CAP has not identified a single donor or supporter who has been subject to such actions due to their association with the organization. And he said that also is true for CAP board members even though their names appear on public websites and filings at the Arizona Corporation Commission.
Nor was the judge swayed by the fact that CAP hired private security guards on two occasions, saying here, too, there was no evidence of harassment or threats.
The Free Enterprise Club made similar arguments about its special need, citing its positions on tax policy as well as its efforts to tighten up voter registration procedures, make it harder for voters to put initiatives on the ballot and opposition to taxpayer-funded light rail. But here, too, McCoy said a few "isolated incidents'' of harassment and threats it cited against its staff are insufficient to show that its donors would be subject to those same threats if their names were public.
And the judge specifically rejected arguments that the organization or its donors will be subject to harassment or retaliation by the Citizens Clean Election Commission, which administers Proposition 2011, because of litigation or policy disagreements.
Others who have challenged the initiative have had no better luck.
In December, Maricopa County Superior Court Judge Timothy Ryan rejected a bid by House Speaker Ben Toma and Senate President Warren Petersen to block implementation of the law ahead of the 2024 election. Their attorney had argued that the initiative, approved at the ballot a year ago by a nearly 3-1 margin, infringed on the rights of the Republican-controlled Legislature.
But Ryan said voters have an absolute right to enact laws requiring full disclosure of the true source of political donations even if GOP lawmakers don't like it.
In his 12-page ruling, Ryan pointed out that the people have the same authority as legislators to enact laws. He said that, just like measures approved by the Legislature, they are presumed just as valid unless there is something unconstitutional about them.
And the judge said there is no such evidence here that would allow him to keep what voters approved from taking effect.
"The citizens of Arizona voted to receive more information about the sources of money trying to influence Arizona elections,'' he wrote. "The public interest weighs heavily in favor of protecting Arizona voters' constitutionally protected legislative authority, and their interests in being fully informed when choosing their representatives and voting on initiatives and referenda, as expressed in Prop. 211.''
That ruling is currently on appeal.
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