In taking up ‘dark money' disclosure law, AZ Supreme Court could reshape free speech standards

Yahoo

08-05-2025

Photo by iStock / Getty Images Plus
The Arizona Supreme Court will decide whether a measure that voters overwhelmingly approved to require disclosure of most anonymous campaign spending is constitutional — and, in the process, it could potentially reshape free speech jurisprudence in the Grand Canyon State.
The case centers on the Voters Right to Know Act, which won 70% of the vote in 2022. It requires any person or organization making campaign media expenditures of more than $50,000 on a statewide election or $25,000 on local elections to disclose the original source of any contributions totaling more than $5,000.
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It was challenged by the anti-abortion advocacy group Center for Arizona Policy and the Arizona Free Enterprise Club, a dark money nonprofit. The political groups argued that mandating disclosure of the source of political spending violates the Arizona Constitution's protections of free speech, association, privacy and separation of powers.
Those arguments were rejected by a trial court and the Arizona Court of Appeals, which unanimously ruled in late 2024 that free speech and privacy claims were outweighed by the Arizona Constitution's intent to compel financial disclosure of groups that seek to influence the results of an election.
'The government has strong informational and anti-corruption interests, which are sufficiently important to justify the modest burden the Act places on donors' association rights,' Judge Jennifer Campbell wrote in the court's opinion. 'Plaintiffs fail to articulate why the Act's disclosure requirements are not substantially related to the State's interest in having an informed electorate.'
Under federal tax law, neither the Arizona Free Enterprise Club or the Center for Arizona Policy's political arm have to disclose donors. But under Prop. 211, they will be forced to do so for their election-related activities.
The two groups lobbied against the passage of Prop. 211, claiming that it was an enshrinement of 'cancel culture.' And CAP, which has a history of pushing anti-LGBTQ+ laws, said it feared the harassment it already received would be directed to its donors if they're forced to be revealed.
Neither organization was able to provide proof of a chilling effect or that their financial supporters would face harassment and reprisals, the judges found.
In reaching their decision, the appellate judges followed federal precedent regarding disclosure requirements and used an 'exacting scrutiny' standard to evaluate the act's disclosure requirements rather than the tougher 'strict scrutiny' that the dark money groups wanted.
But when it accepted the appeal on Wednesday, the Supreme Court told the parties it wants them to argue whether the federal standard for First Amendment cases is applicable to the Arizona Constitution's free speech protections.
The state constitution's free speech clause provides broader protections than the First Amendment, and says that every Arizonan 'may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.'
By instructing the parties to make their case for what standard should be applied, the Supreme Court made clear it is considering a foundational question about Arizona constitutional interpretation.
And the impacts could be significant.
If the justices determine that the Arizona Constitution provides greater protection for free speech than the U.S. Constitution, it might apply the 'strict scrutiny' standard. Not only would that force the dark money disclosure law to clear a higher constitutional hurdle, but it would affect any future free speech cases in Arizona.
The Court of Appeals acknowledged that the state constitution could have greater free speech protections, but followed federal precedent because the Supreme Court has never determined what standard should be applied. Now the high court will determine whether that was correct or if Arizona should chart its own course on free speech standards.
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