By Annie Weiler and Christina Ge
Arizona has a complicated history with dark money. Once crowned the “Chamber of Secrets State” and “ground zero” for anonymous political spending, Arizona has spent decades as the stomping ground for untraceable cash, thanks largely to its purple politics and relatively permissible campaign finance laws. After millions of dark dollars flooded Arizona’s 2020 elections, voters seemingly had enough. In 2022, nearly 72% of voters approved Proposition 211, which requires entities participating in election advertisements to disclose where—or who—their money came from.
Backlash was swift. Some Arizonans sued, arguing that Proposition 211 violated, among other provisions, Arizona’s Speak Freely Clause. Recently, the Arizona Supreme Court preserved Proposition 211. In safeguarding one of the nation’s most rigorous disclosure laws, the Court also reshaped the state’s free-speech doctrine: Under the Arizona Constitution, speaking “freely” does not mean freedom from the state’s police power.
The Mechanics of Dark Money
Dark money refers to “untraceable money.” The concept implicates political spending meant to influence a voter where neither the donor nor the source is disclosed. Generally, dark money follows a three-step process:
- A donor gives money to a nonprofit “social welfare” organization organized under Internal Revenue Code § 501(c)(4) (or a trade association under § 501(c)(6));
- The nonprofit either spends that money on election ads or passes it to a super PAC, which is a political committee that can raise and spend unlimited amounts to influence elections; and
- The money is spent on ads in an upcoming election.
Unlike candidates and political committees, these nonprofits generally do not have to publicly disclose their donors. Super PACs may report their donors, but when that donor is a nonprofit, the disclosure report only names the nonprofit. In other words, whoever originally provided the money to the nonprofit does not appear in the report. The person or company that originally supplied the money stays hidden.
Arizona’s Struggles with Dark Money
Arizona has a storied history with dark money. Former Arizona House Majority Whip Chris Herstam bluntly called dark money “the most corrupting influence [he’d] seen” in his three decades in Arizona politics. While reasonable minds can differ over how and why Arizona became such a hotbed for dark money, three factors stand out.
First, Arizona is a mission-critical battleground state. Control over Congress and who secures the presidency often hinges on how Arizona swings in the elections. National donors and special interest groups pour enormous amounts of cash into the state, betting that Arizona will be decisive in shaping border, immigration, and civil rights policy. Nearly three-fourths of campaign funding in major Arizona congressional races comes from out-of-state donors.
Second, Arizona’s regulatory framework for campaign money is strikingly laissez-faire. It does not limit corporations’ ability to donate to political parties and super-PACs, lacks a state-specific ban on foreign election spending in state or local elections, and allocates few resources to campaign finance laws. Candidates and political committees must report their donors, but nonprofit “social welfare” groups can pour unlimited sums into political ads without ever revealing the source of their money.
Third, Arizona has emerged as the heart of major operative networks, technological titans, and sophisticated political consultants. Accordingly, Arizona draws stunning sums from national conglomerates—which dish hundreds of millions through an intricate web of nonprofits every year—with a stake in its policy decisions.
Speak Freely Clause of the Arizona Constitution
Article 2, § 6 of the Arizona Constitution provides that “[e]very person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.” Arizona courts regularly address this provision, as it is Arizona’s counterpart to the First Amendment. In Brush & Nib Studio, LC v. City of Phoenix, the Arizona Supreme Court assured us—and not for the first time—that the state constitution protects speech more broadly than the federal one. The Court described the Speak Freely Clause as “a guarantee of the individual right” to speak, write, and publish, a right that can be restricted only when someone abuses it.
Proposition 211
Proposition 211, the Voters’ Right to Know Act, appeared on Arizona’s 2022 ballot. Under this proposition, people and entities spending a certain amount in election advertising must publicly disclose every donor who contributed more than $5,000 toward that spending. They must trace the money back through any intermediaries to its original source. Donors receive notice and a chance to opt out of having their contributions used for campaign advertisements.
Supporters argued that voters have a right to know who is paying to influence the election, and anyone looking to invest their money in an election must be willing to stand behind who or what cause they donated to. Critics warned that exposing donors would invite harassment and discourage people from supporting unpopular causes.
On election day, Proposition 211 passed with flying colors, earning 72% of the vote.
The Litigation, Decision, and Reasoning
The Center for Arizona Policy, the Arizona Free Enterprise Club, and two anonymous donors sued the Arizona Secretary of State, arguing that Proposition 211 violated the Speak Freely Clause by chilling political speech.
In a 4-to-3 decision, the Arizona Supreme Court remanded the case to the trial court. Along the way, it scrapped the tiers of scrutiny familiar in First Amendment jurisprudence—describing them as “overly rigid,” “results-oriented,” “one-size-fits-all,” and “ill-fitting”—before devising its own for Speak Freely Clause challenges. First, a court must determine whether the Clause protects the expression at issue, which must examine what the Clause meant to Arizonans in 1911. Here, after an originalist public-meaning detour, the Court found that donating to fund campaign media is expressive conduct. In 1911, “speaking” included expressing oneself, and donating fits within that parameter.
Next, a court must examine whether the challenged law prevents people from “freely” speaking, writing, and publishing. The Court read “freely” as prohibiting prior restraints, punishment for non-abusive speech, and compelled speech. But according to the Court, “freely” never meant free from all regulations. Statehood-era Arizonans lived alongside libel laws, licensing ordinances and campaign-finance reporting. Thus, they understood that the police power “enabled the government to compel factual, nonideological disclosures necessary to protect public health, safety, and welfare.” The government may also act on the Constitution’s own directives, including one clause that requires the legislature to secure “the purity of elections.”
As a result, the operative test now seems to be whether regulation is reasonable, not whether the regulated speech is actually abusive. Depending on the context, the majority notes that it might protect more, the same, or less. Accordingly, speaking “freely” doesn’t mean speaking free of the government’s legitimate regulatory powers—it only means freedom from censorship, prior restraint, and compulsion.
Given the multitudinous territorial disclosure laws, the Arizona Constitution’s General Publicity Clause, and a 1917 statute banning anonymous ballot-measure ads, the Court concluded that Arizonans have never considered campaign-finance disclosure inconsistent with free speech. On their as-applied Speak Freely claim, the plaintiffs pointed at death threats, a vandalized staff car, and an attempted firebombing tied to their advocacy. The Court held that claim was “minimally sufficient” at this stage, remanding it for the superior court to parse.
How Litigants May Move Forward
Proposition 211 lives to see another day, but litigation is not over. The Court rejected the plaintiffs’ facial challenge, meaning the law is not unconstitutional in every application, and it affirmed the dismissal of their claim under the Private Affairs Clause. But the plaintiffs’ claim over how the law applies in their circumstance, called an “as-applied” challenge, returns to the superior court, where they must show that disclosure exposes their specific donors to threats and harassment.
This decision’s most lasting contribution is likely that Arizonans accepted factual, nonideological disclosure as a legitimate use of the police power. While it solidifies the Clause in Arizona’s text and history rather than recycled federal tests, it may also fundamentally alter how courts treat it. In Brush & Nib, the Court focused on whether the speech was abusive, but here, it considered whether a regulation falls within the state’s regulatory authority. Even if the Clause still forbids censorship and prior restraint, the line between permissible regulation and impermissible restraint is not self-defining, and lower courts must draw it case by case.
It’s unclear what that shift might mean in practice. Since Brush & Nib, Arizona litigants have treated the Clause as offering more protection than the First Amendment. That assumption looks less reliable after the majority’s note that the Clause may protect more, the same, or less depending on context. Litigants challenging speech regulations will likely want to bring federal and state claims together, forcing them to be evaluated under the federal First Amendment. as they can no longer rely on the Clause to protect speech more fervently or comprehensively than the First Amendment.
Meanwhile, a closely related case brought under federal law made it to the Ninth Circuit and survived. In Americans for Prosperity v. Meyer, a divided panel held that Proposition 211 does not violate the First Amendment. The majority found that the law’s disclosure requirements are substantially related to the state’s interest in giving voters accurate information about who is funding election ads. Judge Bumatay, in staunch dissent, argued that the First Amendment, as originally understood, does not allow such sweeping disclosure. While some commentators believe that a petition to the United States Supreme Court “seems likely,” for now, Proposition 211 remains in effect for Arizona’s record-breaking midterm elections.
Looking Ahead
Center for Arizona Policy reads like a remarkable win for free speech. Arizona voters demanded to know who funds election advertisements, and both the Arizona Supreme Court and the Ninth Circuit now upheld their right to find out. But in ensuring that Proposition 211 lives to see another day, it has also suggested—for the first time ever—that the Speak Freely Clause may protect less than the federal First Amendment. With its historical analysis, the Court changed how Arizona courts will evaluate free-speech claims going forward. Now, the as-applied challenge proceeds, possible United States Supreme Court review looms, and courts must apply this novel framework to ensure Arizona protects both clean elections and robust free speech.
