By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Arizona voters have an absolute right to enact laws requiring disclosure of “dark money” political donations — even if Republican lawmakers don’t like it, a judge ruled Friday.

In a 12-page order, Maricopa County Superior Court Judge Timothy Ryan rejected a bid by House Speaker Ben Toma and Senate President Warren Petersen to block implementation of Proposition 211 ahead of campaign spending for the 2024 election. Their attorney had argued that the initiative, approved at the ballot a year ago by a nearly 3-1 margin, infringed on the rights of the Republican-controlled Legislature.

But Ryan, in a 12-page ruling, pointed out that the people have the same authority as legislators to enact laws. He said that, just like measures approved by the Legislature, they are presumed just as valid unless there is something unconstitutional about them.

And the judge said there is no such evidence here that would allow him to keep what voters approved from taking effect.

“The citizens of Arizona voted to receive more information about the sources of money trying to influence Arizona elections,” he wrote. “The public interest weighs heavily in favor of protecting Arizona voters’ constitutionally protected legislative authority, and their interests in being fully informed when choosing their representatives and voting on initiatives and referenda, as expressed in Prop. 211.”

The judge also took a slap of sorts at the efforts being made by the GOP leaders to get him to sideline the law.

“Under the Arizona Constitution, the Legislature is not empowered to repeal or detract from voter-approved measure based on its displeasure with those enactments,” Ryan wrote. That refers to the 1998 Voter Protection Act, also approved at the ballot.

He said, though, what lawmakers were attempting here, by filing suit, amounted to an end-run of that act based on claims that Prop 211 somehow harmed them.

“Displeasure with the voters’ choices is not a palpable harm that allows the Legislature to do in court what it cannot do through legislation,” Ryan wrote.

While Ryan gave the go-ahead for the law to take effect, he did not toss out the entire challenge. He said Petersen and Toma are entitled to their day in court to try to convince him that the initiative somehow interferes with the powers of lawmakers.

But the judge made it clear that he thinks their case is weak, saying they have not established they are likely to succeed on the merits of their claims even after a full trial. In fact, at one point he said the two GOP leaders “appear to be on wobbly ground.”

Petersen said he had no comment. There was no immediate response Toma.

The new law is a direct outgrowth of the 2010 decision by the U.S. Supreme Court in a case known as Citizens United. In essence, the justices said corporations and other outside groups have an unfettered — and unlimited — right to spend money to influence elections.

None of that overruled Arizona laws which limit the amount any individual can give. They also require disclosure of donations of at least $50.

What the ruling did, though, was result in formation of political action committees who can make unlimited “independent expenditures,” separate from campaigns, supporting or opposing candidates or ballot measures.

More to the point, the only requirement for each of these committees is to disclose its name on campaign materials and commercials. But attorney David Kolker, representing initiative backers, told Ryan that provided little information, as many took up innocuous sounding names like “Americans for a Brighter Future” while hiding the identities of each group’s actual contributors.

Proposition 211 is designed to end all that in Arizona.

It says that any organization that spends more than $50,000 on a statewide race — half that for other contests — has to publicly disclose anyone who has given at least $5,000. And it specifies that these organizations have to trace the money back to the original source, no matter how many times it has changed hands, and reveal that information in public reports.

Brett Johnson, the attorney hired by the GOP leaders, argued to Ryan that at least part of what makes the measure unconstitutional is that it delegated the enforcement power to the already existing Citizens Clean Elections Commission.

That panel, created by voters in 1988, administers a voluntary system of public financing for candidates for statewide and legislative office and polices other existing campaign finance laws. Johnson said that voters have no right to allow the commission to make its own rules to enforce Proposition 211, rules that were not subject to legislative approval.

Ryan, however, said Proposition 211 itself includes language that rules enacted by the commission and enforcement actions it takes are not subject to approval by any other governmental body.

Anyway, the judge said, this is no different than when lawmakers themselves delegate certain rule-making and enforcement actions to state agencies, as the power of the people is equal to the power of the Legislature.

And the judge pointed out something else.

He noted that Toma and Petersen waited nine months after the November 2022 election when Proposition 211 was approved to file suit. He said they presented “no credible evidence” to explain the delay.

This is actually the second time a court has rebuffed challenges to what voters approved.

In June, Maricopa County Superior Court Judge Scott McCoy rejected arguments by the Arizona Free Enterprise Club and the Center for Arizona Policy that the requirements in Proposition 211 to disclose the true identity of donors to candidate races and ballot measure violates the rights of donors to anonymously affect outcomes.

“In fact, Arizona’s Constitution required the first Legislature to pass an election disclosure law to publicize ‘all campaign contributions to, and the expenditures of campaign committees for public office,’” McCoy wrote. “The framers thus established a constitutional commitment to pure elections, to prevent corporate influences, and to publicize sources of campaign funds.”

He also rejected their arguments that the initiative violates other rights, ranging from the freedom of individuals to associate for political purposes to a constitutional right of privacy.

A separate challenge is pending in federal court filed by Americans for Prosperity, a conservative advocacy group founded by the Koch brothers.

Its attorneys contend the First Amendment protects the right of individuals to donate to advocacy organizations without fear their identities would be disclosed. They argue Proposition 211 “trammels that right by subjecting countless Americans nationwide to governmental doxxing for doing nothing more than supporting their chosen non-profit organizations and charities.”

Friday’s ruling is a crucial victory for supporters of the idea of greater disclosure whose efforts have fallen short twice before.

In 2018 a court blocked a nearly identical measure from going to the ballot after a judge disqualified some signatures on petitions. That left the initiative without sufficient names to qualify.

Two years later, seeking to avoid the potential pitfalls of using paid circulators, backers moved to an all-volunteer effort. But signature gathering faltered during the COVID-19 pandemic which included, for a period of time, a stay-at-home order.

There were no such problems in 2022, resulting in overwhelming approval.