Webinar: Legal Experts Analyze the Threat to Privacy in Arizona Prop 211

May 31, 2023 | Luke Wachob

Update: A video of the event is now available on YouTube.

A new Arizona law threatens to expose Americans’ support for nonprofit causes in the state and put citizens at risk of harassment for their beliefs. Passed last November via Prop 211, the so-called Voters’ Right to Know Act is one of the most aggressive attempts on record to regulate political and issue speech by nonprofits. As the law’s proponents plot efforts to export the measure to other states, Arizona-based nonprofits are heading to court in an attempt to restore their First Amendment rights.

On Tuesday, June 6, a panel of legal experts will discuss the law’s harmful effects on privacy and free speech and offer insights on the lawsuits attempting to strike it down. The event, sponsored by People United for Privacy, will take place virtually as part of the Arizona Capitol Times’ “Morning Scoop” series. Registration is free, and viewers can watch live at 11 AM ET / 8 AM PT or receive a recording after the conversation concludes.

Panelists include:

  • Lee Goodman, Partner, Wiley Rein LLP, and Former Chairman, Federal Election Commission
  • Roy Herrera, Partner, Herrera Arellano LLP
  • Stephen Shadegg, Arizona State Director, Americans for Prosperity

What makes Prop 211 so dangerous to free speech? The law creates a legal minefield for nonprofits that mobilize citizens around pending legislation or speak to the public about the actions of government officials. It gives sweeping power to unelected bureaucrats at the Citizens Clean Elections Commission (CCEC) to force nonprofits to expose their supporters based on a subjective determination that the group’s communications “attack” or “promote” a candidate or ballot measure, even incidentally.

While efforts to elect or defeat candidates have long been subject to campaign finance regulations, including donor disclosure, federally and in Arizona, Americans retain strong constitutional rights to privacy when supporting nonprofits that work outside of this specific arena. Citizens depend on nonprofits to serve as both advocates for their beliefs and as watchdogs for government misconduct. Groups like the ACLU, NRA, Planned Parenthood, and the U.S. Chamber of Commerce have existed for generations without being forced to expose their members to public scrutiny when speaking about government affairs.

Many nonprofits would be devastated if forced by powerful officials to expose the private information of their supporters. Prop 211 effectively puts an axe over nonprofits’ heads and threatens to drop it if they don’t watch their every word carefully when speaking about government. The First Amendment demands better. So does Supreme Court precedent, which Prop 211 ignores.

Proponents of the law have celebrated it as a victory over “dark money.” But miscategorizing nonprofits as political committees can have dire consequences.

Groups that lack significant financial resources or expert attorneys may decide it is in their best interest to avoid any discussion of political issues and withdraw from public debate to avoid potentially triggering the law. Donors to nonprofit causes who value their privacy may reduce or suspend their giving altogether if they risk public exposure. At a time when political tensions are high, the public revelation of nonprofit donor and member lists is likely to increase strife and become fodder for attacks on citizens for their beliefs.

In other words, the net effect of Prop 211 is not to improve transparency but rather to chill speech about government, reduce support for worthy causes, and raise the risk of politically motivated harassment. For that reason, the fate of the lawsuits challenging Arizona’s new statute – and of the efforts to bring this law to other states – will be critical to the future of privacy and free speech in America.

We hope you will join us on Tuesday, June 6 for this important and revealing discussion.