Donor Privacy and Disclosure Digest: April 2023

Welcome to Ballotpedia’s Donor Privacy and Disclosure Digest! This monthly newsletter provides news and information on key policy changes, a breakdown of state legislation, and an overview of pivotal legal decisions and case developments. In this issue, you’ll find:

  • Americans for Prosperity sues over Arizona ballot measure: A district court lawsuit challenges the state’s donor disclosure laws.
  • In the courts: The latest on pivotal judicial decisions and developments across the country.
  • State by state: An analysis of this month’s state legislative activity, including bill status, topic, partisan sponsorship, and more. 
  • What we’re reading: Keep up to date on the stories and analyses we’ve been reading this month.
  • Dig deeper: Want more information on the topics covered in this issue? We’ve got you covered.

Americans for Prosperity sues over Arizona ballot measure

Political advocacy group Americans for Prosperity (AFP) filed a lawsuit against members of the Arizona Citizens Clean Elections Commission and Secretary of State Adrian Fontes (D) on March 17 in the United States District Court for the District of Arizona. The lawsuit centers on Proposition 211, a ballot measure voters approved in 2022. AFP alleges that the measure is unconstitutional and that donors should be allowed to make anonymous contributions. 

Proposition 211 requires anyone who makes an independent expenditure of more than $50,000 on a statewide campaign or $25,000 on a local campaign to disclose the names of the money’s original sources, which is defined as the persons or businesses that earned the money being spent. Voters approved the initiative 72-28% on Nov. 8, 2022. It is set to take effect on Jan. 1, 2024. Alaska voters approved a similar initiative in 2020. Along with establishing a ranked-choice voting system, Ballot Measure 2 requires donors that contribute more than $2,000 in funds derived from donations, contributions, dues, or gifts to disclose the source of those funds. 

Attorneys for the plaintiffs said, “The First Amendment safeguards the right of individuals to donate to private advocacy organizations of their choosing without undue risk that they will be subjected to their identities being disclosed or other chilling by the government.” Luke Wachob, senior director of communications and policy for People United for Privacy Foundation, said, “People vote in private booths. It is a very similar idea, that when you support a nonprofit group or advocacy group…you should not have to have your name, address, employer published.” 

Former attorney general Terry Goddard (D), who supported Proposition 211, said, “The people that deal in dark money have a huge vested interest to protect, and they’re going to do everything they can to protect it.” Patrick Llewellyn, director of state campaign finance at the Campaign Legal Center, said, “Secret spending in elections is a growing problem and that’s not going away. So we need real transparency about who’s spending big money on elections to reduce the influence of wealthy special interests, and that’s what Prop 211 provides for Arizona voters.”

Americans for Prosperity’s lawsuit is one of two lawsuits challenging Proposition 211. On Dec. 13, 2022, the Center for Arizona Policy, Inc and the Arizona Free Enterprise Club filed a lawsuit against the Arizona Secretary of State, Katie Hobbs (D), regarding the constitutionality of Proposition 211. The court has not scheduled further proceedings in either case. 

In the courts

Circuit court upholds San Francisco disclosure requirements

The United States Court of Appeals for the Ninth Circuit upheld a lower court’s ruling that San Francisco’s campaign ad disclosure requirements are in the public interest. Voters enacted the requirements through a local ballot measure, Proposition F, on Nov. 5, 2019. Proposition F changed disclaimer laws for independent political committee advertisements, requiring the disclosure of the committee’s top three contributors donating at least $5,000. If any of those contributors is another independent political committee, advertisements must name that other committee’s top two contributors who donated at least $5,000 and the amount each contributed. San Franciscans Supporting Prop B filed the lawsuit in 2022, saying the disclosure requirement was “wholly at odds with the guarantees of the First Amendment” and “scares away donors and otherwise limits speakers’ and donors’ ability to speak and associate, and misleads voters as to who supports the committee’s communications.” In the court’s ruling, U.S. Circuit Judge Susan Graber — who President Bill Clinton (D) appointed to the bench in 1998 — said, “San Francisco’s requirement was substantially related to the governmental interest in informing voters of the source of funding for election-related communications.”

State by state

State legislatures are considering more bills related to donor privacy and disclosure this year than they were at this point in either 2022 or 2021. Since March 1, state legislatures have acted on 24 bills related to donor privacy and disclosure, up from the 21 bills acted on last month. These 24 bills represent 51.1% of the 47 bills we are tracking in 2023. Six of these bills are from states with Democratic trifectas, 13 are from states with Republican trifectas, and five are from states with a divided government. In comparison, we tracked 40 bills at this point in 2022 and 31 bills at this point in 2021.  Click here for a complete list of all the bills we’re tracking.

11 bills were introduced (or had pre-committee action).

  • Democratic trifectas: 2
  • Republican trifectas: 7
  • Divided governments: 2

5 bills advanced from committee

  • Democratic trifectas: 3
  • Republican trifectas: 2

3 bills passed one chamber (or had pre-adoption action in the second chamber). Those bills, with their official titles, are listed below. 

  • Democratic trifectas: 1
  • Republican trifectas: 1
    • ND HB1116: Relating to campaign contribution statements for candidates seeking a school district office.
  • Divided governments: 1
    • KS HB2170: Senate Substitute for HB 2170 by Committee on Federal and State Affairs – Creating the donor intent protection act to provide enforcement of donor-imposed restrictions on philanthropic gifts of endowment funds or to endowment funds.

2 bills passed both chambers. Those bills, with their official titles, are listed below. 

  • Republican trifectas: 1
    • IN HB1212: Privacy of nonprofit donor information.
  • Divided governments: 1
    • VA SB1427: Campaign finance; political action committees, certain large pre-election expenditures.

3 bills were enacted. Those bills, with their official titles, are listed below.

  • Republican trifectas: 2
    • WV SB516: Relating to requirements for disclosure of donor contributions
    • WV SB508: Clarifying reporting and disclosure requirements for grassroots lobbying expenditures
  • Divided governments: 1
    • KY SB62: AN ACT relating to privacy.

The charts below show bill progress by state trifecta status and compare tracked legislation by legislative status and partisan sponsorship in 2022 and 2023. 

What we’re reading

Keep up with the latest events in the world of donor privacy and disclosure policy by exploring the stories linked below. 

Dig deeper

Are you hungry for more information on the topics we covered in this edition? Dig deeper into these topics by checking out the following Ballotpedia pages: