Arizona lawmakers may prevent Tempe voters from shining a light on 'dark money'

Update: The Arizona House of Representatives voted 33 to 25 on Feb. 13 to advance House Bill 2153 to the Arizona Senate. 

Tempe voters will get ballots in the mail this week, but a bill in the Arizona Legislature could pre-empt one city measure up for a vote — a proposal to curb "dark money."

Story by Jerod MacDonald-Evoy, Arizona Republic

The Tempe City Council unanimously agreed to send a ballot measure to voters that would add transparency to local elections. It would require that groups making independent expenditures over $1,000 in city elections disclose details on the organization and its donors.

Tempe vs. Arizona

Tempe Councilwoman Lauren Kuby says the measure is "shining a light" on "dark money," a term that refers to political spending by advocacy groups — often 501(c)4 non-profit corporations — that aren't required to, and won't, disclose their donors. 

However, state Rep. Vince Leach, R-Tucson, who has criticized Tempe in other areas, proposed statewide legislation that would make Tempe's enforcement of the measure impossible.

House Bill 2153, which could go up for a vote in the House on Monday, would bar cities, counties and the state from requiring non-profits to disclose their donors. 

"The government doesn't need to be there," Leach said during a Federalism, Property Rights and Public Policy Committee meeting, which voted, 6-3, to move the bill forward. The vote split along party lines with Democrats opposed.

Right to remain anonymous?

Timothy Sandefur, vice president for litigation at the Goldwater Institute, said the Tempe proposal is a way to "silence dissent." 

The conservative Goldwater Institute, along with the Greater Phoenix Chamber of Commerce and the East Valley Chamber of Commerce, support state legislation to protect donors from disclosure.

The ability for individuals to anonymously donate to non-profits is akin to the secret ballot and it keeps them from being "reprimanded" for their political views, Sandefur said.

State Rep. Ken Clark, D-Phoenix, countered that there is "a compelling interest in trying to understand who is trying to influence our laws." 

"You don't have a right to hide money in politics, period," he said.

Election laws already require candidate and political committees to file disclosures that list donors.

Groups such as the Arizona Advocacy Network, Planned Parenthood Arizona and the Grand Canyon Chapter of the Sierra Club oppose the House Bill.

Morgan Dick, with the Arizona Advocacy Network, quoted late Supreme Court Justice Antonin Scalia, who said, "I do not look forward to a society which ... campaigns anonymously.

4 things HB 2153 would do

  • Non-profits in "good standing" with the IRS would not have to register as a political-action committee or PAC.
  • Non-profits would not have to disclose donor information.
  • Non-profits in good standing would not have to respond to audits, subpoenas or produce evidence regarding a "potential political campaign finance violation." 
  • Remove the requirement that a non-profit prove they are organized for the sole purpose of influencing an election.

'Democracy ain't cheap, folks'

Kuby, an advocate for the Tempe ballot measure, said HB 2153 is an "attack" on charter cities.

Kuby said the bill, if passed, would get challenged because "it's a threat to charter cities."

She said she's confident the courts would side with cities, citing an Arizona Supreme Court ruling that said local elections are not a statewide concern.

However, litigation could go the other way.

Before voting to send its measure to voters, the Tempe City Council debated whether it would be opening the city to a lawsuit. Mayor Mark Mitchell, Vice Mayor Robin Arredondo-Savage and the Tempe Chamber of Commerce questioned whether Tempe could be sued for infringing on First Amendment rights or face backlash from the state.

Kuby isn't swayed.

"Democracy ain't cheap, folks," she said. "That's the best money we could spend."