In a case with statewide and possibly immediate impact, the Arizona Court of Appeals ruled Thursday that “dark money” groups can be forced to disclose the source of their cash even if their commercials don't specifically advocate for anyone's election or defeat.
The judges unanimously rejected arguments by Committee for Justice and Fairness that its last-minute commercial attacking Tom Horne ahead of the 2010 election was not really designed to affect the election. They said the timing of the commercial and its content shows its only purpose could be to try to sway voters not to support him.
Potentially more significant, the appellate judges said disclosure requirements of Arizona election laws are constitutional, overruling the decision of a Maricopa County Superior Court judge.
Judge Lawrence Winthrop, writing for the appellate court, said disclosure laws serve “substantial governmental interests,” including providing voters with information to aid them in evaluating the candidates and the sources of their support. He also said it deters actual corruption “by exposing large contributions and expenditures to public light.”
Thursday's ruling has implications far beyond what happened in the 2010 race for attorney general.
It comes as several organizations are running TV ads and sending out mailers attacking various candidates for the upcoming primary. Lawyers for these groups have said they are free to hide their donors from the public because they are simply “educating” voters about the issue and the individuals and not expressly advocating for anyone's election or defeat.
But Winthrop said the commercial or mailer must be examined in its entirety — including its timing — to determine its real purpose.
Maricopa County Attorney Bill Montgomery, who pursued the committee to disclose its funding, said the ruling is an important victory for voters.
“You want to be able to weigh whether or not the criticism being offered, or praise, is something that you can give any legitimacy to,” he said.
Montgomery conceded the ruling requiring disclosure of funds still allows one group to hide behind another. But he said even that still serves a purpose.
“At least it then allows the voter to say, ‘OK, I'm just seeing one organization behind another organization and another organization, and I'm going to take that into account in weighing whether or not I really believe the message,’” he said.
Tom Irvine, representing the committee, said an appeal to the Arizona Supreme Court is possible. He said the judges ignored the fact that the U.S. Supreme Court has said commercials and mailers must be judged by exactly what they do and do not say and not by any “external analysis” of what might be the real reason for them.
But he agreed with Montgomery that the ruling, unless overturned, could affect the kind of commercials and mailers voters are now seeing.
The ad in question here, which ran weeks before the 2010 election, said that when Horne was a legislator he “voted against tougher penalties for statutory rape.” he said that in his then-current job as state school superintendent “he voted to let a teacher back in the classroom who was caught viewing pornography on a school computer.”
The commercial ended with a plea for viewers to “tell Superintendent Horne to protect children, not people who harm them,” giving his office phone number.
It came out after the election that the ad was financed by the Democratic Attorney Generals Association which was supporting Felecia Rotellini, Horne's foe in the general election.
Irvine said there was no campaigning going on and no requirement to tell viewers ahead of time who was paying for the commercial.
He pointed out that the ad did not reference Horne as a candidate for attorney general or mention any other candidate for the office. And Irvine said that means there was no “express advocacy” that required the group to register with the Secretary of State's Office and file financial disclosure forms.
Winthrop acknowledged the commercial did not use any of the “magic words” in that state law says indicate express advocacy, like “vote for,” “elect,” “support” or “endorse.” But he said it clearly was meant to influence voters.
The judge said that that by the time the commercial ran Horne was a “clearly identified candidate” for attorney general.
“It was unnecessary for the advertisement to further identify the position he sought,” Winthrop wrote.
More to the point, the commercial talked about things Horne did years earlier as a legislator and what he did as school superintendent, “a position he would soon vacate.” The judge said that undermines the contention by the group it was educating the public on important issues of protecting school children from statutory rape and from teachers who view pornography in the classroom.
“The only reasonable purpose for running an advertisement, during an election campaign, which cost approximately $1.5 million to produce and broadcast, to critique Tom Horne's past actions as a former member of the legislature and as an occupant of a post he would soon vacate was to advocate his defeat as a candidate for attorney general,” Winthrop said, adopting the findings of an administrative law judge as the court's own. “The facts meet the test for express advocacy.”
Irvine faired no better in his arguments to the court that the reporting requirements are unconstitutional because forcing groups to identify their donors would chill their free speech rights.
Winthrop said that argument works only if a “reasonable probability exists an organization or its members face threats, harassment or reprisals due to disclosure.” He, the judge said, Irvine presented no evidence of harassment or retaliation involving the committee or its donors, pointing out the fact that it discloses contributor information in reports filed with the Internal Revenue Service.
Montgomery said that even if Thursday's ruling is upheld by the Supreme Court there will still be ways for groups to “game” the system.
He pointed out, for example, that any expenditure made after Aug. 16 this year on primary races does not have to be publicly reported until Sept. 27. Montgomery said that allows groups to formally organize right before the primary, dump a bunch of money into commercials and not have voters know until after the election the real source of the cash.