Arizonans of All Beliefs Have Reason to Fear and Fight Prop 211

October 27, 2022

No measure on a ballot anywhere in the country this year poses a more serious threat to First Amendment rights than Arizona’s Prop 211. If it passes, the measure will force virtually any group that discusses public policy to expose the names, home addresses, occupations, and employers of private citizens who support their work, if their communications so much as mention the name of an elected official. The result would be an unprecedented chill on speech about government and social causes that would harm all Arizonans, regardless of their beliefs.

Targeting Nonprofits, Not Political Groups

Supporters of Prop 211 tell a different story. They present the measure as an attempt to make political campaigns reveal who paid for their ads. It just so happens that information on donors to candidates, political parties, and political action committees is already disclosed in minute detail and posted in a publicly available, searchable database. In reality, Prop 211’s broad language would redefine how many communications about public policy are regulated and dramatically expand the kind of speech that triggers privacy-invading donor exposure mandates. The prime target of those requirements is not candidates and political committees but nonprofits – like the many organizations on both sides of the abortion, immigration, and Second Amendment debates – that dare to call out government leaders for their policy views, discuss the issues of the day, and speak truth to power.

To some politicians, the difference hardly matters. If they are being criticized or evaluated in an election year, they want to know who funds the group behind that message so they can attack or retaliate against those groups and their supporters. But to Americans, there is a world of difference between requiring candidates to be transparent about their campaign’s funding and allowing government officials to track and surveil citizens’ support for groups that discuss political leaders.

By targeting nonprofits instead of campaigns, Prop 211 turns the concept of transparency on its head. Instead of empowering Arizonans to monitor the government, Prop 211 would empower the government to monitor Arizonans. Instead of shining a light on so-called ‘dark money,’ it would cast a chill over free speech.

Regulating Speech About Public Policy, Not Campaigns

Despite the gravity of Prop 211’s threat to citizen privacy and free speech, a surface-level analysis is likely to miss many of its problems. On its face, Prop 211 purports to require groups to publicly report “the original source[s] of all major contributions used to pay, in whole or part, for campaign media spending.” But the insidious nature of the measure lies in how it defines its terms.

Prop 211 includes six different categories of speech under the “campaign media spending” label. Among them are poorly defined terms that could easily apply to communications about public policy rather than elections. For instance, the measure embraces the vague and constitutionally dubious “PASO” model where groups can be forced to expose their supporters if their communications are deemed to “promote, attack, support, or oppose” an elected official or candidate. To be clear, “campaign media spending” doesn’t just include payment for an ad, it also encompasses “research, design, production, polling, data analytics… or any other activity” that could be viewed as “promoting, attacking, supporting, or opposing” a candidate. It’s worth emphasizing that many sitting elected officials are also candidates.

Many common communications from nonprofits about public policy could, in the eyes of an unfriendly bureaucrat, be deemed to “promote, attack, support, or oppose” an elected official. Is criticism of an elected official’s handling of a hot-button topic an “attack” on their re-election? Is a public thank-you to a legislator for sponsoring a bill an effort to “promote” their campaign?

Groups won’t know until the government comes after them. That’s a powerful incentive to stay silent.

Unleashing a New Wave of Donor Harassment

Halloween will be long gone once Election Day rolls around, but the nightmares of nonprofits and their supporters will have just begun, if Prop 211 passes. Nonprofits that continue to speak out about government leaders under Prop 211 would be forced to publicly expose the names, home addresses, occupations, and employers of their supporters. This will almost certainly result in an increase in harassment and intimidation of Arizonans for their beliefs. While supporters dismiss this charge, the experiences of campaign donors and nonprofit organizers already provide powerful evidence of the threats and retaliation facing those who take a public stand on policy issues.

In Arizona alone, there are examples of both. Consider the West Valley social media influencer whose contribution to Donald Trump’s re-election campaign sparked a fury of outrage, boycotts, and attacks in the media. Or the think tank president whose opposition to taxpayer funding for the Coyotes’ arena led opponents to send death threats and leave a mutilated rabbit on her porch. Even the media hasn’t escaped the abuse. When The Arizona Republic endorsed Hillary Clinton for President in 2016, staff at the paper received death threats.

All across America, there are stories of individuals and groups being targeted for their beliefs. At a time when a majority of Americans do not feel comfortable voicing some of their political views and 84 percent say that this is a serious problem, is it wise to put even more Americans at risk of harassment for their beliefs and cause-based giving?

A Compliance Nightmare for Nonprofits

For nonprofits, the choice between self-censoring or exposing their supporters isn’t even the end of the ordeal. Complying with the inordinately complex measure is not just a question of if, but how. Most notably, in calling for groups to report the “original source[s]” of funds, Prop 211 saddles nonprofits with a potentially massive and insurmountable administrative burden.

Under the measure, nonprofits that engage in so-called “campaign media spending” would not only be required to maintain records for five years of donors who give over $2,500 in a two-year period, but groups would also be required to go back through at least three layers of contributions. In other words, if an organization’s donors include individuals or organizations who themselves received money from other sources, those sources and their sources’ sources must also be logged and reported. There’s virtually no limiting principle on this look-back provision. An individual’s tithing at church or business income may be reportable under this labyrinthine mechanism.

If that wasn’t enough, the bill’s thresholds are also a problem. “Major contributions” are defined as those above $5,000, and the law kicks in when a group accepts or spends more than $25,000 for “campaign media spending” that mentions lawmakers or local officials over a two-year period. Any nonprofit that aims to reach a large audience with their message is highly likely to exceed these thresholds. Prop 211 thus leaves little to no room for nonprofits to engage in effective policy advocacy without triggering the bill’s invasive disclosure requirements.

Making matters worse, Prop 211 gives the Citizens Clean Elections Commission nearly unilateral and exclusive authority to enforce this initiative. That power includes the ability to inspect an organization’s donor records at any time, including, it seems, those records that wouldn’t otherwise be subject to public disclosure. With a mandate this sweeping and open-ended, it’s a legitimate question how many of these thresholds are even relevant in practice.

Ultimately, many nonprofits will decide that the hassle of compliance, the potential for errors and penalties, and the risk to their donors and other organizations is simply too much to bear. Those groups will choose to sit on the sidelines and not represent the voices of their supporters, denying the public and elected officials their views on important issues. Worst of all, the measure’s complexity will be most harmful to small and volunteer-run organizations as well as those groups advocating for causes disfavored by those in power. Ultimately, no organization or cause is safe from this measure’s reach – and neither are the citizens who support their missions.

A Threat to All Arizonans, Regardless of Their Beliefs

Media coverage of opposition to Prop 211 has focused on concerns from conservatives and business groups. But protecting the privacy of Americans who join and contribute to nonprofit causes is a bipartisan issue. That’s why nearly 300 groups representing Americans of all beliefs asked the Supreme Court to protect citizen privacy in the 2021 case Americans for Prosperity Foundation v. Bonta.

“Far from representing uniquely sensitive causes, these organizations span the ideological spectrum, and indeed the full range of human endeavors: from the American Civil Liberties Union to the Proposition 8 Legal Defense Fund; from the Council on American-Islamic Relations to the Zionist Organization of America; from Feeding America—Eastern Wisconsin to PBS Reno. The deterrent effect [of disclosure] feared by these organizations is real and pervasive…” the Supreme Court observed in its decision, which barred California from forcing nonprofits to fork over their donor lists as a condition of fundraising in the state.

Other proposals to violate the privacy of nonprofit supporters have also met opposition from left-leaning groups, such as the federal DISCLOSE Act. And at the state level, bipartisan coalitions have been urging legislatures to pass proactive protections for citizen privacy, with 14 states so far heeding the call.

While Prop 211’s most vocal critics have come from the right so far, its provisions would be devastating to Arizonans of all backgrounds. Whether you are pro-choice or pro-life, support gun rights or gun reform, advocate for school choice or defend public school funding, believe in immigration reform or support refugees, among countless other issues that Americans care about, you will be impacted by this initiative. Defending our First Amendment right to privately support nonprofit causes is no partisan issue. It is essential for individuals and groups all across the spectrum.

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Prop 211’s cheerleaders cynically exploit the rhetoric of government transparency to disguise the measure’s attack on citizen privacy and First Amendment rights. The true aim of Prop 211 is not to force campaign groups to reveal their funders – a goal that is accomplished by longstanding campaign finance rules – but to empower government officials, major media outlets, and political operatives to monitor Arizonans when they exercise their First Amendment right to support a nonprofit cause they believe in.

If it passes, Prop 211 will subject Arizonans to some of the most invasive regulations for political speech in the country. Nonprofits and citizens should speak out now – while they still can.

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