Arizona’s so-called “Voters’ Right to Know Act” continues to confuse and confound would-be speakers and their attorneys trying to make sense of the law’s complicated morass. In November 2022, Arizona voters approved Proposition 211, a measure requiring nonprofits that engage in public advocacy in the form of “campaign media spending” to abide by complex regulations and disclose the “original source” of their supporters. The term “campaign media spending” is defined with stunning breadth and covers nearly every form of direct or indirect communication that mentions an elected official. While the initiative was marketed by its funders as a transparency measure, enforcement and interpretation has been opaque for nonprofits forced into compliance. One such nonprofit is Opportunity Arizona.

Opportunity Arizona is a 501(c)(4) organization devoted to grassroots advocacy for progressive causes. On February 23, the group’s attorneys filed an advisory opinion request with the Arizona Citizens Clean Elections Commission, the agency charged with enforcing Prop 211, seeking clarity on what types of routine public communications by the organization will trigger the law’s disclosure requirements.

In the advisory opinion request, Opportunity Arizona submitted four different forms of public communications, asking the Commission which messages constitute “campaign media spending” under the law that would require the organization to disclose the identity of its supporters. The first communication was a “thank you” message where an advertisement – whether digital, broadcast, or print – expressed appreciation to a lawmaker for taking a specific policy action. The second communication featured two examples of an “accountability” ad where a message criticizes an elected official or group of officials for their actions. The third communication was a “patch call” where a canvasser coaches an individual through a script so that a concerned citizen can convey a particular message to a public official. Finally, the fourth public communication was issue advocacy in which an advertisement encourages the viewer to contact their elected officials in response to a particular policy issue.

From there, Opportunity Arizona sought guidance on how the Commission defined “clearly identified candidate.” The definition of a clearly identified candidate is critical because it determines whether a public communication constitutes a campaign media spend. If the communication mentions a clearly identified candidate, as defined by the Commission, then the communication is a campaign media spend subject to the law’s donor disclosure mandates. In the advisory opinion request, Opportunity Arizona proposed a narrow definition of “clearly identified candidate,” limited to communications that refer to a public official in relation to a forthcoming election, consequently excluding communications that discuss the official’s positions or votes.

Before the Arizona Citizens Clean Elections Commission could respond to Opportunity Arizona’s advisory opinion request, the Campaign Legal Center (CLC), an anti-privacy organization that backed Prop 211, intervened with a public comment on the AO request. CLC assisted in drafting Proposition 211 and regularly celebrates the statute, even intervening to defend the law in federal court. Given their investment in the statute, CLC unsurprisingly repudiated Opportunity Arizona’s preferred definition of “clearly identified candidate.” Instead, CLC argued that a narrow definition would exempt a large swath of public communications from the disclosure mechanisms that are the core function of the law. They urged the Commission to reject Opportunity Arizona’s interpretation.

Interestingly, Campaign Legal Center took a different approach to Opportunity Arizona’s question regarding which public communications constitute campaign media spending. CLC largely demurred on whether the examples presented by Opportunity Arizona were subject to the law’s disclosure requirements, instead using their comment to launch a screed against Citizens United and regurgitate tired talking points about “money in politics.”

When the Citizens Clean Elections Commission finally responded to Opportunity Arizona in late March, they largely echoed CLC’s comment. The Commission asserted that the “thank you” ad is campaign media spending because it references a clearly-identified candidate. In arriving at this answer, the Commission echoed CLC’s preferred definition of “candidate” to essentially include any officeholder.

Where CLC demurred on the examples of public communications, the Commission offered a direct answer. While the “thank you” ad mentioned a candidate, consequently constituting a campaign media spend, the Commission argued that one of the accountability ads, patch call script, and issue advocacy message mentioned a party, rather than a candidate, or otherwise failed on a subjective basis to promote, attack, support, or oppose (PASO) the named individual’s election. Therefore, those messages did not trigger the law’s donor disclosure mechanism. This response highlights the importance of the previously-mentioned debate defining “clearly identified candidate,” with the Commission siding with CLC that any public communication that mentions a candidate constitutes a campaign media spend.

In some ways, the Commission’s response to the advisory opinion request leaves more questions than answers. While the Opportunity Arizona AO request was being debated, more AO requests emerged from other speakers desiring clarity on the law’s many complexities. The courts have thus far refused to offer relief, with recent litigation facing early setbacks.

For now, it seems that nonprofits interested in speaking out on behalf of their members and supporters in Arizona would be best served avoiding any discussion of elected officials – unless they wish to hire attorneys, comply with complex reporting requirements, and expose their supporters to public scrutiny. When faced with that forced choice, many nonprofits will choose to stay silent, just as the law’s backers intended. Absent some other intervention from the Commission or the courts, practitioners, nonprofits, and their supporters will remain mired in confusion when attempting to comply with this intrusive donor disclosure law.