Biggest battleground over proposal is whether it hinders free speech
By Jeremy Duda
The Daily Record Newswire
PHOENIX — There’s no certainty whether a proposed initiative to eliminate the anonymous campaign spending known as “dark money” will get onto the ballot or whether voters will approve it in November. But if either of those things happens, it’s almost guaranteed that it will face litigation.
Architects of the Open and Honest Disclosure committee factored the likelihood of lawsuits into their planning when they crafted the proposal, and with good reason. Critics are already predicting the legal pitfalls that could keep it off the ballot or nullify it if it’s approved by the voters.
The biggest battleground over the initiative is likely to be over whether it hinders free speech. Since the U.S. Supreme Court’s landmark 2010 ruling in Citizens United opened the door to a flood of dark money, a debate has raged throughout the country not only whether government should require the sources of dark money to be disclosed, but how far government can go to force that disclosure.
Elections attorney Kory Langhofer, a critic of the Open and Honest Disclosure initiative, said the initiative will have a chilling effect on First Amendment free speech rights, which he argued could lead it to be found unconstitutional.
The initiative requires independent expenditure groups that spend money to influence candidate campaigns to disclosure the original source – as well as any intermediaries who passed the money along to its destination – of any contribution of more than $10,000. Failure to do so within 24 hours of an expenditure would subject the group to a fine of up to three times the amount of the violation.
Langhofer said Chief Justice John Roberts made clear in Citizens United that any restrictions that make people pause before exercising their free speech rights could be constitutionally problematic.
“The question that Roberts came down to in Citizens United was does this unduly burden the freedom of speech,” said Langhofer, who represents the Center for Competitive Politics, a Virginia-based nonprofit group that opposes campaign finance disclosure laws. “Does the requirement that you disclose where the money comes from, when in some cases you will not be able to do that, unduly burden your speech?”
Opponents of dark money often note that Citizens United upheld the disclosure requirements in the Bipartisan Campaign Finance Reform Act, and that Roberts, in his opinion, gave a nod to disclosure requirements, writing that the First Amendment protects political speech, while “disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way” and allows voters to make informed decisions.
At a press event announcing the start of the campaign for the dark money measure and a sister initiative to create a “top-two” primary election system, political consultant Chuck Coughlin, whose firm HighGround is running the campaign, cited Justice Antonin Scalia’s words in Doe v. Reed, another 2010 ruling in which the conservative jurist said, “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously. This does not resemble the home of the brave.”
Former Arizona Attorney General Terry Goddard, one of the leaders of the Open and Honest Coalition and the driving force behind the anti-dark money initiative, said Scalia’s words bode well for the initiative.
“We have Justice Scalia on our side, and I think we’ll prevail in any challenge from the law,” Goddard said.
Attorney Nick Dranias, a vocal advocate of anonymous political speech, which he equates with free speech rights, said the initiative could be an opportunity to reverse what he considers unfortunate trends in favor of more disclosure.
“My perspective is ... the case law in Citizens United went the wrong way on forcing disclosure of independent expenditures. That case law needs to change. The good news about this effort is if it does succeed, folks like me will sue and hopefully clarify the law and return it to where it should be,” Dranias said.
Heart of the initiative
The disclosure requirement is the heart of the initiative, and if a court strikes it down on free speech grounds, it would be fatal to its objective of barring anonymous campaign spending. But there are other provisions that could see a legal challenge, though their rejection in court would still leave the bulk of the law intact. The initiative includes a severability clause, meaning if one section is struck down, the others still remain in force.
Timothy La Sota, who serves as legal counsel for the Arizona Republican Party, predicted that the initiative would have trouble defending a provision asserting state authority over independent expenditures in congressional campaigns, which he argued is preempted by the Federal Election Campaign Act.
“That’s obviously not legal,” La Sota said.
Rick Hasen, a professor of law and political science at the University of California-Irvine, agreed that the state likely lacks authority to regulate strictly federal campaign matters.
“There are times when there’s advertising that affects both state and federal elections, and that raises some issues. But if it’s purely federal elections, I don’t know that the state would have the authority to require disclosure,” Hasen said.
Langhofer also predicted that the state could face problems with a provision requiring disclosure of issue ads that aren’t related to a campaign. Under the initiative, the source of funds used for any ad that mentions a candidate’s name for any reason, even strictly for issue advocacy, must be disclosed if the ad airs within 90 days of an election. But Goddard and Hasen said the U.S. Supreme Court has upheld disclosure of issue ads.
A potential legal challenge
Before any of the myriad provisions of the initiative have their day in court, it may have to face down a challenge aimed at keeping it off the ballot in the first place.
Langhofer said he believes the initiative could run afoul of the “separate amendment” rule that prohibits unrelated provisions from being packaged together in one constitutional amendment and requires everything in an initiative to have a common purpose. To pass muster under the separate amendment rule, the provisions of a constitutional initiative must all be “topically related” and “sufficiently interrelated so as to form a consistent and workable provision.”
The Arizona Supreme Court in 2011 struck down a proposed measure referred to the ballot by the Legislature, that would have eliminated public financing for political campaigns, effectively abolishing the Citizens Clean Elections Commission. The court ruled that a provision sweeping the commission’s leftover money into the state’s general fund was kosher, but another provision seizing money from the city of Tucson’s campaign funding system violated the separate amendment rule.
Langhofer said Open and Honest Disclosure could meet the same fate due to provisions granting citizens the right to sue election officials if they fail to take action on complaints, and a provision to provide $1 million in startup funding for a new transparency fund that would be used to enforce the new disclosure laws. La Sota argued that a provision requiring random audits of campaign finance reports by independent expenditure groups could contribute to separate-amendment problems as well.
“They have bitten off quite a few subjects in this anti-dark money measure,” Langhofer said.
But an analysis of recent separate amendment cases lends credence to the idea that Open and Honest Disclosure would survive such a challenge. And some argue that a 2012 Arizona Supreme Court opinion upholding an initiative to create a “top-two” primary election system, the Arizona Supreme Court has made it harder to succeed with such a challenge.
In its 2012 ruling in Save Our Vote v Bennett, the court said the separate amendment rule “does not require that a constitutional amendment identify the most narrowly tailored means for achieving identified goals, only that the provisions have a sufficient common purpose or principle.”
“The separate amendment rule does not require that a constitutional amendment identify the most narrowly tailored means for achieving identified goals, only that the provisions have a sufficient common purpose or principle,” then-Vice Chief Justice Scott Bales wrote.
Goddard said every provision in the initiative revolves around the central goal of disclosure, and that the coalition was careful to draft the initiative in a way that comported with the separate amendment rule. That holds true for other potential legal challenges as well. Goddard and other members of the group said they never expected to go unchallenged in court, and wrote the initiative in a way that would help fend off those lawsuits.
“We spent about six months doing it,” Goddard said.
