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.
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