Despite Lawsuits, Arizona Regulators Press on with Anti-Privacy Prop 211

September 21, 2023 | Brian Hawkins

Last year, Arizona voters passed Proposition 211, enacting an extreme nonprofit donor disclosure regime. Under the new law, many nonprofit organizations that discuss public policy and elected officials may be forced to publicly expose their supporters’ names and home addresses to the public. Prop 211 tasked the Arizona Citizens Clean Elections Commission with formulating regulations to interpret and enforce the law’s vague language and invasive disclosure demands. In public comments submitted to the Commission, People United For Privacy (PUFP) advises that rulemaking activity is premature because the law is facing credible legal challenges.

The Commission’s proposed rules address the procedures for investigating nonprofits and enforcing the law. The rules specify the rights of the accused to respond to allegations and detail the Commission’s powers to investigate complaints and issue enforcement orders. Since the law’s approval last November, however, it has been the subject of intense judicial scrutiny, facing two separate legal challenges in Arizona state court and another in federal court.

Last December, the Goldwater Institute filed a lawsuit on behalf of two Arizona-based nonprofits alleging that the law violates the state constitution’s right to “private affairs” – among other deficiencies – by forcing disclosure of those individuals who support nonprofits that speak on public policy matters. Though the lawsuit was initially rejected by a state superior court, Goldwater filed an amended complaint in July containing affidavits about the threat faced by donors to the plaintiffs.

Americans for Prosperity (AFP) filed a separate lawsuit in federal court this spring. AFP alleges that Proposition 211 violates the First Amendment to the U.S. Constitution by chilling the speech of donors to nonprofit organizations. AFP’s lawsuit relies partially on the precedent established in a landmark 2021 ruling from the U.S. Supreme Court involving its affiliated organization, Americans for Prosperity Foundation, which repudiated California’s mass collection of nonprofit donor information and reaffirmed robust and long-held privacy protections for nonprofit members and supporters.

Most recently, Republicans in the Arizona Legislature challenged the law, alleging that it violates the state constitution’s Separations of Powers Clause. The lawmakers assert that the law’s vesting of legislative, judicial, and executive powers into one independent agency, the Citizens Clean Elections Commission, usurps legislative powers properly assigned to the legislative branch.

With so much uncertainty and opposition to the law, the Commission’s rulemaking is premature. By enacting rules in the face of legal ambiguity, the Commission is ensuring only more chaos for regulated entities. As PUFP’s comments conclude:

 “… the litigation that remains pending in federal court presents a serious challenge to the constitutionality of Proposition 211. The Commission should hold off on adopting implementing regulations until that litigation and all appeals have been resolved. Proposition 211 imposes an undue burden on donor privacy and free speech. The federal judiciary should be given a chance to properly adjudicate these issues before the law is given any further effect.”

A number of speakers with viewpoints along the political spectrum have raised similar concerns.

We urge the Commission to heed our call and forgo further rulemaking activity until pending legal challenges are definitively settled to ensure a stable regulatory environment for individuals and nonprofit organizations that aspire to speak on causes they believe in.