Goldwater Defends Donor Privacy Against Unconstitutional AZ Prop 211

Everyone has the right to support the causes they believe in without fear of harassment or retaliation. But that right is now under assault in Arizona from the recently passed Proposition 211. Today the Goldwater Institute filed a lawsuit challenging Prop 211’s unconstitutional requirements, continuing its legacy of spearheading the nationwide fight to protect donor privacy.

Deceptively named the “Voters’ Right to Know Act,” Prop 211 requires nonprofit organizations to turn over their donors’ names, addresses, employers, and contribution amounts to the government if those groups engage in speech on matters of public concern. Specifically, it overrides decades-old protections for donor privacy under federal law and U.S. Supreme Court precedent, by requiring nonprofits that spend more than $50,000 over a two-year period speaking about policy issues prior to an election to publicly disclose any donor who gave more than $5,000 over the same two years.

“Prop 211 tramples on basic free speech protections by creating a public ‘right’ to intrude into an individual’s private affairs. It forces donors to choose between supporting causes and organizations they believe in, or having their donations and private information publicized on a government list,” Goldwater Institute Senior Attorney Scott Day Freeman says. “The result will be less free speech, more harassment, and an uglier political discourse.”

That’s why the Goldwater Institute, acting on behalf of the Center for Arizona Policy and the Arizona Free Enterprise Club, filed suit in Arizona state court today against the Arizona Secretary of State and the Arizona Clean Elections Commission.

The lawsuit argues that Prop 211 violates the free speech protections of the Arizona Constitution, which provides even greater protection for free speech than the First Amendment to the U.S. Constitution. Prop 211 also violates the Arizona Constitution’s explicit guarantee that an individual’s “private affairs” will not be disturbed by requiring the disclosure of confidential monetary donations to nonprofits that engage in “campaign media spending.” Moreover, Prop 211 violates the Arizona Constitution’s separation of powers principle, which mandates that none of the state’s three branches of government exercise the powers belonging to another. Yet Prop 211 grants executive, legislative, and quasi-judicial power to the Arizona Clean Elections Commission—an unelected and unaccountable body—and then exempts the commission from any oversight from the executive or legislative branches.

As the Goldwater Institute explained in a 2015 policy report, the entire point of issue advocacy and social welfare organizations is to advance matters of public concern through public dialogue. But former Arizona Attorney General Terry Goddard has even stated that this proposition was aimed at stifling certain types of speech that he apparently finds disagreeable. So it should come as no surprise that unions were specifically exempted from the disclosure requirements with which nonprofits like the National Rifle Association, the Sierra Club, and Planned Parenthood must comply.

The measure has other legal defects as well:

• Prop 211 defines “campaign media spending,” which triggers disclosure requirements, so broadly that it includes any public communication that refers to a political candidate prior to an election, even if that candidate is also an incumbent officeholder. This means that Prop 211’s disclosure requirements could apply to a wide range of a nonprofit’s educational and civic activities, including posting a blog, publishing a study, or hosting an event, among others.
• Prop 211 requires the outing of the original source of donated money. In other words, if a nonprofit gives money to another nonprofit and that nonprofit meets the disclosure requirements, the original nonprofit still must disclose their donors.
• Prop 211 requires a nonprofit to list its top three donors on any public communication that meets the “campaign media spending” requirements even if the top donors have specifically opted out of having their donation used for “campaign media spending.”

Prop 211 is just the latest in a long series of attacks in recent years on donor privacy. But the Goldwater Institute is leading the nation in fighting back. In 2018, Goldwater helped pass a law in Arizona that prevented cities from requiring nonprofits to hand over their donor lists as a condition of speaking on issues of public importance. Goldwater has also sued governments in Rio Grande, New Mexico, and Denver, Colorado, over city ordinances that mandated similar disclosure requirements. And Goldwater filed an amicus brief with the U.S. Supreme Court in support of nonprofits’ successful challenge of California’s attempt to force those groups to turn over their confidential donor lists.

In Arizona and around the country, Goldwater will never stop fighting to protect all Americans’ right to free speech.

You can read more about this case here. 

Adam Shelton is a Staff Attorney at the Goldwater Institute.