Experts Agree: Arizona’s Prop 211 Leaves Many Questions Unanswered

June 9, 2023 | Luke Wachob

Campaign finance attorneys and nonprofit leaders on both sides of the aisle agree on one thing about Arizona’s Proposition 211: they don’t know how nonprofits are supposed to comply with the law.

On June 6, a panel of experts discussed the constitutional implications and practical realities of Arizona Prop 211, which passed last November, at an event sponsored by People United for Privacy and moderated by the Arizona Capitol Times. Yet ambiguity in the law’s definitions make it difficult for even the most experienced minds to decipher the measure’s provisions. That will be a significant obstacle for the law as it faces lawsuits in both state and federal court asserting that it violates citizens’ rights under the Arizona and U.S. Constitutions, respectively.

“We’re in a transitory position where we’re trying to figure out what exactly does it all mean, and how is it that you comply with the new regime?” said Roy Herrera, Partner at Herrera Arellano LLP, who frequently advises Democratic clients on how to follow Arizona’s campaign finance rules. He noted that debates about the law’s meaning largely center on a broad and partially unclear definition of “campaign media spending.” Arizona’s Citizens Clean Elections Commission has not offered guidance on this or other disputed provisions in the law.

“Some answers would be appreciated. We just don’t have them,” Herrera said.

That’s a big concern for nonprofits because Prop 211 threatens to publicly expose the names and addresses of donors to groups that engage in “campaign media spending.” Nonprofits and their members care deeply about their ability to keep donations private. This is especially true of groups that take a stand on public policy issues and whose supporters could potentially face harassment or attacks for those views from the group’s opponents or those in power.

Public disclosure of donors has long been required of candidate campaigns, political parties, and political action committees, such as super PACs, that exist primarily to elect or defeat candidates. But Arizona’s new definition of “campaign media spending” covers forms of speech that nonprofits have long engaged in and which have only a tenuous connection to an upcoming election. These provisions of Prop 211 may be found by the courts to be unconstitutional because Americans have strong First Amendment rights to speak anonymously about government leaders and to support efforts to do the same.

“One person’s ‘dark money’ is another person’s profoundly important constitutional right,” noted Lee Goodman, former Chair of the Federal Election Commission (FEC) and Partner at Wiley Rein LLP. “If you’re giving to a nonprofit organization and all that organization wants to do is speak about issues in a democracy and the politicians who are associated with those issues, without any message about electing, defeating, supporting, or opposing candidates for election, that’s where your First Amendment right is.”

Goodman explained how, during the 20th century, federal and state governments repeatedly attempted to chill political speech by targeting a group’s donors. That eventually led the Supreme Court to embrace the right to privacy in association as a vital component of the First Amendment. As recently as 2021, the Supreme Court reaffirmed and clarified this principle in the case, Americans for Prosperity Foundation v. Bonta.

“We’ve seen it right versus left, and we’ve seen it left versus right. It’s a natural inclination of those in power to go after their ideological enemies and force them to name the names – which is a phrase that comes out of the Red Scare – and to say where they live and then use public pressure to go after them,” Goodman explained.

The federal lawsuit against Arizona’s Prop 211, also brought by Americans for Prosperity Foundation (AFPF), argues that the law violates the precedents established in Bonta and prior cases.

“This initiative was sold as something it is not,” said Stephen Shadegg, AFP’s Arizona State Director. He noted that the law’s provisions would affect nonprofit causes ranging from healthcare to humane societies. A weekly donation of $50 to a church that speaks out on an issue such as homelessness could potentially trigger the statute and lead to that parishioner’s identity being disclosed.

Many nonprofits are likely to struggle to comply with the law, at least until the courts have their say. Herrera, who supported the measure as a private citizen, nevertheless acknowledged that, as a practitioner, there are plenty of questions to be answered. He mentioned provisions of the law covering communications that regulators deem to be “promoting, attacking, supporting, or opposing” (PASO) a candidate or ballot measure within six months of an election.

“That theoretically could be a pretty broad category,” Herrera said. “We don’t have any definition of what those things mean in the statute. The Citizens Clean Elections Commission has indicated they are not going to provide guidance in that area.”

Goodman, who had to apply that PASO standard at the FEC, where it has a very limited use in the regulation of federal activity by state political committees, warned that it may be impossible to apply.

“I can tell you: you will not be able to get a clear definition of that standard,” he said. He described a conundrum at the FEC where an ad replayed a candidate’s own words on a controversial issue without adding any editorial content. To one audience, the ad may have a very positive effect. To another, it may have a very negative effect.

“Is that PASO’ing the public official? We couldn’t figure that out,” Goodman said.

Until courts and regulators work through the many ambiguities in the law – if they ever can – Arizonans will exercise their First Amendment right to support a cause under a cloud of uncertainty. Many are likely to choose not to speak at all.

That’s the sad irony of claims that Prop 211 would increase transparency and empower voters. The more aggressive states become in chasing down every last dollar spent on political speech, the harder it becomes for citizens to understand and exercise their First Amendment rights under the law. That may have been the true goal of this initiative, but we doubt most Arizona voters realized what they signed up for.