PHOENIX — 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 the 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 show 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 several candidates in the upcoming primary.
Lawyers for these groups have said they are free to hide their donors’ identities 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 attacking Horne ran weeks before the 2010 election. It wasn’t revealed until 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.
Winthrop acknowledged the commercial did not use any of the “magic words” 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 court also rejected Irvine’s arguments 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,” threats the judge said were not shown to be present in this case.