AZ Supreme Court upholds voter-approved dark money law — but it wasn't a total win for supporters

The Arizona Supreme Court has upheld a voter-approved law aimed at helping residents know who’s spending money on political campaigns — but it wasn’t a total win for supporters.

Voters approved Proposition 211, also known as the Voters Right to Know Act, in 2022, with 72% of the vote. It requires groups that spend more than $50,000 on statewide races — less on other elections — to publicly disclose the names of anyone who’s given at least $5,000.

Critics, including the Center for Arizona Policy and Arizona Free Enterprise Club, argued the law violates free speech protections; the courts have disagreed.

Jerod MacDonald-Evoy with the Arizona Mirror joined The Show to talk about it.

Full conversation

MARK BRODIE: Jerod, good morning.

JEROD MACDONALD-EVOY: Good morning.

BRODIE: So how big of a of a win is it for the folks who are backing the the Voters’ Right to Know Act?

MACDONALD-EVOY: I would say this is a pretty big win for them. They’ve they’ve seemed pretty happy about this, that the court largely upheld the law and said it is constitutional and that it can stand on its own legs.

BRODIE: And I mentioned that there were some groups who argued that the law sort of infringed on their free speech protections. What exactly was their argument in that regard?

MACDONALD-EVOY: Correct. So the case that was heard by the Arizona Supreme Court was brought by, as you said, the Center for Arizona Policy and the Arizona Free Enterprise Club. And they argued that two anonymous donors that were part of this suit were concerned that their their speech was going to be chilled or harmed by this act by them having their identities exposed and connected to this campaign spending kind of in this.

The main argument that was made during oral arguments a few months ago was that in light of this kind of hyper-partisan environment we’re in and in light of kind of the political violence that that this would create a chilling effect on people who may want to donate to maybe more controversial causes or or causes such as that, and not want to advocate for certain causes knowing that their their identities may be exposed. And that was kind of the crux of some of their their main arguments here towards the end of this case.

BRODIE: And what did the justices say about that?

MACDONALD-EVOY: The justices found that there was some some cause of belief that that their, that that both CAP and FEC had some some legitimate threats that that to them and that there was some belief that they said that media spending like this is a form of expressive speech and making donations is a form of expressive speech. They also cited Supreme Court rulings like Citizens United that said that corporate spending is even considered now a form of speech.

However, they they did find, the majority found that that was not overruled by the Arizona state’s Constitution, which seems to to favor this idea of election transparency and transparency in elections and that it didn’t exactly, you know, conflict with the state’s own version of the First Amendment, which is the speech freely clause, which offers some kind of protections for for people within the state for their First Amendment beliefs and their kind of ability to speak truth to power.

BRODIE: The court, though, is allowing part of this case to go back to the lower courts. What exactly is that?

MACDONALD-EVOY: Correct. And it has to do with that particular issue. The only, the only thing that the courts kind of felt that the lower courts maybe erred on was not allowing for arguments to be heard on that particular issue, whether or not these having people’s donations exposed could cause a chilling effect on one’s ability to speak on this issue under the Arizona speech freely clause.

That is part of the opinion that both sides, those who dissented and the majority opinion on the court, agreed was something that the lower courts needed to allow there to be arguments for and sent that back to the lower courts.

Everything else, the other arguments in regards to the constitutionality of this measure were all upheld. But they felt that this part needed to be argued in a lower court and felt that needed its time in court to be heard.

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BRODIE: Right, which is not to say necessarily that they that that the critics or the challengers will necessarily win, just that they have the chance to make their arguments.

MACDONALD-EVOY: Correct. And we’re not sure exactly when this will be happening yet. But, CAP and FEC will now have their time to argue that that these donations did have and will have essentially, or this act will have essentially a chilling effect on their speech.

And it seems, though, that according to the majority opinion, there still seems to be a belief, though, that the speech freely act may still not be as impacted by this given the state Constitution’s strong favorability towards election transparency. They cited how the state was back in 1917, very early in the state’s statehood, was already passing laws to expose kind of expose the ways that money was influencing politics.

BRODIE: How has the law worked so far? I mean, it’s been almost four years since voters overwhelmingly approved it. Like has it increased transparency in who’s spending what on whom?

MACDONALD-EVOY: It has increased some transparency in some areas. Voters may have noticed on certain campaign signages ...

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I think voters have begun to notice that on certain campaign signs or certain campaign ads the certain notices have been added to those ... that campaign media. Things that will say how much out of state money is contributing to those ads or even the specific group that has contributed the most money to those ads.

Those are all functions of this act that are contributing to additional transparency for voters to understand who and how is exactly contributing to these campaigns and these campaign media spending that is trying to influence their voters.

BRODIE: Sure, interesting. All right. That is Jerod MacDonald-Evoy with the Arizona Mirror. Jerod, thanks so much.

MACDONALD-EVOY: No problem. Thank you.