Background
Arizona voters enacted Proposition 211, the Voters’ Right to Know Act, to identify the original sources of major funding for campaign media spending, including money routed through intermediaries. The law imposes disclosure, recordkeeping, and disclaimer requirements on persons and entities whose campaign media spending exceeds specified thresholds. Among other requirements, a covered person generally must publicly identify donors whose direct or indirect contributions of original monies exceeding $5,000 were used for campaign media spending.
Americans for Prosperity and Americans for Prosperity Foundation brought facial and as-applied First Amendment challenges, alleging that the law chilled speech and association and was unconstitutionally overbroad. The district court dismissed their claims, granting leave to amend the as-applied free-speech claim. The plaintiffs declined to amend and appealed.
The Court’s Holding
The Ninth Circuit affirmed the dismissal of all claims. Applying exacting scrutiny, the majority held that Proposition 211’s disclosure requirements are substantially related to Arizona’s important interest in giving voters accurate information about the original sources of major campaign media spending. It concluded that the law imposes modest burdens and is narrowly tailored because its scope is proportionate to that informational interest, including through spending thresholds, donor notice and opt-out provisions, and protections for donors facing a serious risk of physical harm.
The court rejected the as-applied free-speech challenge because the complaint’s allegations were conclusory and lacked facts establishing a reasonable probability that disclosure would expose the plaintiffs’ supporters to threats, harassment, or reprisals. It also rejected the facial and as-applied compelled-association claims because they overlapped with the unsuccessful disclosure challenge. Judge Bumatay dissented, concluding that the law’s potentially extensive tracing of indirect donations, lack of a donor-intent requirement, administrative burdens, and public disclosure risks violated the First Amendment.
Key Takeaways
- Campaign-finance disclosure requirements remain subject to exacting scrutiny, requiring a substantial relationship to a sufficiently important governmental interest and narrow tailoring.
- Arizona may require disclosure of original and intermediary sources of major campaign media funding, not merely the immediate donor, when statutory safeguards limit the burden on speech and association.
- An as-applied challenge based on feared retaliation must allege specific facts showing a reasonable probability of threats, harassment, or reprisals; conclusory allegations are insufficient.
Why It Matters
The decision sustains Arizona’s voter-enacted effort to expose the original funding behind significant election-related communications, including funds passed through intermediaries. It also reinforces Ninth Circuit precedent recognizing voter information as an important governmental interest while illustrating the factual showing advocacy organizations must make to obtain an as-applied exemption from donor-disclosure requirements.