The Goldwater Institute today filed a friend-of-the-court brief in the Arizona Supreme Court supporting state lawmakers in their challenge to Proposition 211, a recent law that violates Arizonans’ right to support the causes they believe in without fear of harassment or retaliation.
Prop 211 gives breathtakingly broad powers to bureaucrats to take “any” action they think “may assist” with the enforcement of the state’s campaign finance restrictions. As our brief explains, this language is so broad that it effectively makes the state’s Clean Elections Commission into a second legislature within Arizona—something that violates the principle of separation of powers.
The law forces non-profits to place their donors’ private information on a publicly accessible government list, in violation of vital constitutional protections for privacy and freedom of speech. That’s the subject of a separate lawsuitthat the Goldwater Institute is currently litigating. But the initiative also empowers the Clean Elections Commission to establish rules to govern donations to non-profit groups and political campaigns, and then makes those rules exemptfrom any legislative or executive control. In other words, the commission cannot be controlled by the people’s elected representatives. The initiative also allows the commission to take “any” step that it thinks “may assist” in the enforcement of the law.
Those parts of the initiative are the subject of a lawsuit brought by state legislators who argue that Prop 211 intrudes on their authority as elected lawmakers. And a lower court sided with them, declaring that the “exemption” provision of the initiative violates the separation-of-powers rules.
But that court also held that lawmakers had no standing to complain about the commissions’ powers to take “any” action it thinks helpful.
Our brief explains why that’s wrong: the lawmakers do have standing to sue. And not only that, but they should win their case because the “any action” provision will encourage the commission to operate in undemocratic ways—through so-called “sub-regulatory” measures that don’t have to be reviewed by the legislature or by the public at large before they go into effect. If the Supreme Court allows that portion of the initiative to stand, it will not only turn the commission into a sort of second legislature, but will reduce its public accountability to such a degree that Arizonans will have less and less control over what government officials do. And all of that will come at the expense of the privacy and free speech rights of people throughout the state.
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, we 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. We’ve also sued governments in Rio Grande, New Mexico, and Denver, Colorado, over city ordinances that mandated similar disclosure requirements. And we 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.
You can read our brief here and learn more about our own Prop 211 lawsuit here.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.
