Arizona Lawmakers Adopt Unconstitutional Rules on Campaign Messages

Goldwater Institute
News Release

PHOENIX—Members of Congress and Arizona election officials have been urging tougher disclosure requirements for campaign spending in response to the January 2010 historic decision of the U.S. Supreme Court in Citizens United v. Federal Elections Commission. But a new legal analysis from the Goldwater Institute says such proposals would violate the First Amendment.

The Citizens United decision struck down federal election laws that barred corporations, unions and other groups from directly spending money on campaign messages in the days leading up to an election. As a result, the U.S. Congress and states around the country are now required to rewrite their own election laws to lift such bans and ease requirements on people and groups who spend money on campaign messages.

“Everyone should feel safe to speak out about election issues without worrying that they could trigger a government fine or jail time,” said Nick Dranias, director of the Joseph and Dorothy Donnelly Moller Center for Constitutional Government at the Goldwater Institute.

Dranias authored a legal analysis, “Citizens United v. FEC: A Case for Limiting Campaign Finance Regulations,” which explains why federal and state governments should be scaling back campaign rules instead of adding new ones.

Arizona, however, has reacted to Citizens United by enacting speech crimes and threatening to create political prisoners. Lawmakers passed a new law on March 29 to require corporations and unions to register with the state and report spending as little as $1,000 on a local election. House Bill 2788 also makes these groups report that they have spent money on political advertisements before the public sees anything.

In addition, corporations, unions and other organizations formed to influence elections will have to register as “political committees,” which requires segregated bank accounts, the appointment of designated officers, continuous reporting and vulnerability to government audits. People and groups that don’t follow the rules could be fined up to three times what they spend on a campaign message, and they could be charged with felonies or misdemeanors just for communicating their political ideas to the public. The punishment for both criminal charges can include jail time.

“HB2788 adopts the types of regulations for campaign spending that the Citizens United ruling directly struck down,” says Mr. Dranias. “The U.S. Supreme Court’s reasoning suggests almost all federal and state campaign finance regulations should be simplified or removed to make it easier for people to speak their minds at election time,” he says.

Citizens United declares that spending money to influence elections is fully protected under the First Amendment for everyone—every person, every organization, every corporation and every union,” Mr. Dranias says. “Political elites can easily navigate complex campaign finance rules with armies of lawyers and other professionals. But most people won’t go to such lengths, and that creates a barrier to the exercise of First Amendment rights that should not be tolerated any longer.”

Read “Citizens United v. FEC: A Case for Limiting Campaign Finance Regulations” online or call (602) 462-5000 to have a copy mailed to you.

The Goldwater Institute is an independent government watchdog supported by people who are committed to expanding free enterprise and liberty.


Comments

  1. You talk about how it forces corporations, unions and the like to hav these disclosure requirments and say only those companies that have the legal expertise can navigate these laws. Are you really pretending that thw AFL- CIO, SEIU and corporations do not have the means to easily do this?

    Your reading as always when it comes to a ruling you like is overbroad… States can do this and any “implication” you read into it is just that an implication. The laws you talk about have not been ruled on in anyway.

  2. Matthew Benson says

    Mr. Dranias could have saved himself a lot of time had he actually read the bill. It specifically exempts corporations from having to file as political committees, sparing them the laborious bookkeeping requirements he describes. Instead, unions and corporations must now simply report their independent campaign expenditures once they eclipse pre-set threshholds in local ($1K), legislative ($2.5K) or statewide ($5K) candidate races. Far from enacting “speech crimes,” this legislation clears the way for the kind of corporate electioneering made legal by the Citizens United ruling. Transparency and disclosure -those are the watchwords. Don’t take my word for it. Read the bill. I’ve included a link for Mr. Dranias’ benefit: http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/49leg/2r/bills/hb2788h.htm Matthew Benson
    Arizona Secretary of State’s Office

  3. Nick Dranias says

    Matt, you’re wrong. The floor amendment that was adopted forces corporations, unions and LLCs to file as political committees when they are primarily formed to influence elections (here: http://www.azleg.gov/
    legtext/49leg/2r/adopted/h.2788ka.pdf (see page 3:3-8)).
    The arizona version of Citizens United is now subject to precisely the same kind of regulations under state law that the supreme court struck down in Citizens United.
    Wrong response.

  4. Matthew Benson says

    Nick,
    You’re referring to this section:
    “Any entity that makes an independent expenditure and that is organized primarily for the purpose of influencing an election and that is a combination of corporations, limited liability companies or labor organizations or that is a corporation, limited liability company or labor organization that accepts donations or contributions shall file with the filing officer as a political committee as otherwise provided by law.”
    In other words, neither a mega corporation like Coca-Cola nor a mom-and-pop widget maker nor any other company that exists to make money would need to file as a political committee.
    Responding to Citizens United, Arizona has adopted some of the most streamlined campaign finance rules in the country. Hence the unanimous support of the Legislature (55-0 in the House; 30-0 in the Senate) and the signature of Gov. Brewer.
    MATT

  5. Nick Dranias says

    Matt,

    The truth is that Arizona has ordered the local equivalent of a Citizens United to shut up or file as a political committee under threat of civil and criminal penalties.

    This obviously violates the First Amendment and defies Citizens United. How in the world did such an obvious constitutional blunder take place unanimously, much less among Republicans?

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