Ninth Circuit upholds Arizona dark money transparency law

A 2-1 majority agreed with a lower court that the law requiring disclosure of large political donations does not violate free speech or associational rights, nor does it chill political speech or campaign contributions.PHOENIX (CN) — Rejecting arguments that the campaign finance law violates donor privacy, the Ninth Circuit on Wednesday upheld the dismissal of a challenge to Arizona’s Proposition 211, which requires transparency for large political donations.More than a year after conservative advocacy groups challenged the 2022 ballot initiative before a three-judge panel in Phoenix, a 2-1 majority found the Voters Right to Know Act does not chill First Amendment free speech or associational rights because the act is narrowly tailored to serve a specific and important government interest — providing the public accurate information regarding the sources of major campaign media spending.“Juxtaposed against a nonexistent tradition of anonymous donations is 50 years of Supreme Court precedent emphasizing the substantial public interest of an informed citizenry in our political marketplace and electoral transparency as a means of safeguarding our democratic traditions,” U.S. Circuit Judge Gabriel P. Sanchez wrote in a 52-page opinion published Wednesday morning.The act was put in place to root out “dark” money: political donations laundered through multiple intermediaries to hide the original source. According to Sanchez, a Joe Biden appointee, the act places only a “modest burden” on free speech rights, proportional to the government interest served. U.S. Circuit Judge Johnnie Rawlinson, a Bill Clinton appointee, concurred with Sanchez.Dissenting from the majority, U.S. Circuit Judge Patrick Bumatay said the law will chill political speech and donations by “doxxing” those whose donations wind up used for political purposes without their knowledge.“It doesn’t matter whether the indirect donor knew about that political activity or intended to support it,” the Donald Trump appointee wrote. “Proposition 211 — by its terms — publicly discloses the identity of indirect donors and publicly associates them with the political speech of another group that they may have never heard of, never wanted to donate to, and never agreed with.”For example, if a person donates more than $5,000 to their church over two years and the church later donates to a political candidate, Bumatay said the act would risk identifying someone who may have had no intention of participating in politics and associating that person with a political campaign or idea they do not support.Voted into law in 2022 by more than 70% of Arizonans, the Voters Right to Know Act requires campaigns that spend at least $50,000 in a statewide race or at least $25,000 in any other race to disclose the names of donors who gave more than $5,000, with some exceptions for those who spend their own funds or business income.Americans for Prosperity sued the Citizens Clean Elections Commission of Arizona, the executive agency that enforces the law, in 2023, asking a federal judge to find the law chills free speech and forces association in violation of the U.S. Constitution. The group filed an appeal in May 2024 after U.S. District Judge Roslyn Silver, a Bill Clinton appointee, dismissed its complaint.A section of the law that prevents the Legislature from limiting or prohibiting enforcement actions taken by the governing agency was put on hold by the Arizona Court of Appeals pending review by the state’s high court at the time of oral arguments before the Ninth Circuit. Legislative leaders in August 2023 challenged that provision along with another section that grants the agency authority to implement disclosure requirements, but the appeals court kept that section in place.Bumatay suggested during oral arguments that the panel wait for the state Supreme Court’s opinion before giving its own. The state’s top court largely upheld the act’s provisions in June. The Ninth Circuit panel followed suit.The panel found the act is constitutional because it places no limit on donations and allows donors to opt out of having the contributions used for campaign media spending.In a 50-page dissent, Bumatay reasoned that the act goes against the American tradition of anonymous political writings.“Without the powerful words of the founding generation’s anonymous pamphleteering, who knows if this nation would have achieved independence, ratified the constitution, or enacted the Bill of Rights?” he asked.The majority said Bumatay’s dissent strays too far from the facts of the case at hand.“Although much ink has been spilled by our colleague concerning the Founding-era tradition of anonymous writings and pamphleting in politics, noticeably absent from the dissent is any evidence of a historical tradition of anonymous donations to political campaigns,” Sanchez countered.Neither side has replied to a request for comment.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads