Tuesday evening at Arizona State University’s Sandra Day O’Connor School of Law, the Goldwater Institute will be discussing what it sees as an attack on free speech: full campaign finance disclosure.
The event, dubbed “Anonymous Speech Under Assault: A Conversation about Protecting Donor Privacy,” will have Goldwater Institute attorney Matt Miller and National Review Senior Writer David French discussing the recent wave of disclosure ordinances across the country.
“The privacy of nonprofit donors is once again at risk,” the event page states, “as cities and states across the country enact laws requiring charities to turn over their donor lists any time those groups speak about important public issues.”
The heart of the discussion will likely center around recent Supreme Court rulings and cases currently working their way through the 9th Circuit that are focused on making non-profit organizations that participate in electoral politics reveal the primary sources of donors.
But the discussion will also have some Arizona ties.
The Goldwater institute was one of the main forces behind a law passed earlier this year that makes it illegal for any government agency to force disclosure of donors to nonprofits, partially in response to a Tempe campaign finance disclosure ordinance aimed at “dark money,” the term applied to anonymous campaign spending by nonprofits. Gov. Doug Ducey signed the bill into law after it was approved by Republican lawmakers.
Anonymous speech or not?
Goldwater and others argue that requiring nonprofits to disclose their funders is in part a violation of the first amendment and can have a “chilling effect” on political speech.
In a Federalism, Property Rights and Public Policy committee meeting in February, Timothy Sandefur, vice president for litigation at the Goldwater Institute, argued that disclosure ordinances like the one Tempe voters approved of is a way to “silence dissent”.
Sandefur said it is imperative for individuals to be able to anonymously donate to nonprofits, comparing it to the secret ballot as a way for people to not be “reprimanded” for their political beliefs.
The sponsor of the legislation that made Tempe’s ordinance moot, Rep. Vince Leach, R-Saddlebrook, said it’s not the role of government to be involved in the realm of regulating donations to nonprofits.
While Goldwater Institute and Arizona Republican lawmakers argue that donations to nonprofits should be considered anonymous speech, others argue it is not.
“If you ask questions, you might ask how they square their arguments with the opinion of Justice Scalia in 2010,” former Attorney General Terry Goddard said in an email to the Arizona Mirror about the event.
In 2010, former Supreme Court Justice Anthony Scalia stated that he did “not look forward to a society which, thanks to the Supreme Court, campaigns anonymously,” further stating that he believed disclosure ordinances would be the remedy to the now infamous Citizens United ruling.
Other Arizona connections
But the battle over local and state control isn’t the only part of Arizona’s connection to the ongoing discussions around donor privacy.
In California, a lawsuit is working its way through the 9th Circuit that revolves around the issue of the state requiring nonprofits disclose the names of their donors.
California said it would not release the information but the Americans for Prosperity organization has been arguing that California cannot fully promise those lists would not be released, among other arguments.
The Arizona connection to this case comes from Arizona Attorney General Mark Brnovich.
Brnovich filed an amicus brief in support of Americans for Prosperity, along with the attorneys general from the states of Alabama, Louisiana, Michigan, Nevada, Texas and Wisconsin.
The brief states they took “this position because they also have a vital interest in protecting their citizens’ First Amendment right of freedom of association against unconstitutional interference.”
At the center of the case is a section of a nonprofits’ tax filings called schedule B.
This section is where nonprofits list the names of their donors and have generally been private, though some states and local municipalities have moved to reveal those sections to the public in the name of transparency in campaign finance.
This section has also been under the microscope at a federal level.
Earlier this year the Internal Revenue Service and Treasury Department announced reforms to Schedule B that made it so several types of organizations including labor unions, various associations and social welfare organizations would not have to fill out the section.
The Goldwater Institute event will take place at 5:30 p.m. at the Sandra Day O’Connor College of Law and is free to attend.