Arizona Attorney General To Rule Whether Anti-'Dark Money' Ordinance Is Illegal

By Claire Caulfield
Howard Fischer, Capitol Media Services
Published: Thursday, March 14, 2019 - 9:34am
Updated: Thursday, March 14, 2019 - 9:50am

A state senator says Tempe residents acted illegally when they approved a ballot measure requiring public disclosure of campaign donors.

Sen. Vince Leach asked Arizona Attorney General Mark Brnovich to rule whether cities can impose their own prohibitions on "dark money'' in local campaigns.

State Law

Leach says the 2017 Tempe voter initiative should be overturned because it is in violation of a law he pushed through the Republican-controlled Legislature. That law prohibits local governments from requiring tax-exempt organizations from registering as political committees, even if they are putting money into races.

It also precludes any requirement that these so-called "dark money'' groups identify donors and it bars local governments from auditing the books of these groups or respond to subpoenas, even if there are allegations they are violating campaign finance laws.

"The state of Arizona always has the authority to protect the constitutional rights of its citizens, and no local ordinance may violate those rights,'' Leach wrote in his complaint to Brnovich. He also cited a 1958 U.S. Supreme Court decision that non-profit groups seeking to affect the political process can shield the names of donors.

"Tempe can no more violate this right than it could require voters to allow city officials to inspect their filled-out ballots,'' he wrote. "Local control ends where constitutional rights begin.''

Tempe Ordinance

The Tempe ballot measure says any group that spends more than $1,000 during any election cycle to "disclose the original source ... of all major contributions.'' That includes the name, address and employer of anyone donating more than $1,000.

The measure was approved at the ballot by a margin of 91-1 and formally enacted by the city council.

The Arizona Supreme Court has ruled that the state's 19 charter cities — Tempe being one of them — have certain rights under the state constitution to decide matters of strictly local concern.

Implications

Brnovich is required by law to investigate when lawmakers allege state officials have violated state law. He is also required to issue his decision with 30 days.

His decision will also affect the future of another anti-dark money ordinance approved by 87 percent of Phoenix voters in November. That ban hasn’t yet gone into effect because Gov. Doug Ducey, who is required to review all city charter changes, has so far refused to give his approval.

Gubernatorial press aide Patrick Ptak only said that the Phoenix ordinance "is currently under review by our legal division.''

He did not explain why it has taken months.

If Brnovich finds there is a violation, he has to order the state treasurer to withhold half of Tempe’s state aid. He could also turn to the state Supreme Court to resolve the dispute.

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