Donor Privacy and Disclosure Digest: October 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:

  • Arizona Proposition 211 update: The Arizona Citizens Clean Elections Commission proposes new rules for the measure’s implementation.
  • 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.

Arizona Citizens Clean Elections Commission considers rules for Prop. 211 implementation

In a Sept. 21 meeting, the Arizona Citizens Clean Elections Commission discussed proposed rules for the implementation of Proposition 211. The measure – approved by voters in 2022 – requires individuals or entities making independent expenditures of more than $50,000 on a statewide campaign or more than $25,000 on a local campaign to disclose the names of the money’s original sources. It also allows the Commission to adopt rules and enforce the law. 

The rules require television ads to disclose the names of sponsors verbally and on the screen at the beginning or end of the ad. Verbal disclosure is not required if the written list is displayed for at least one-sixth of the ad’s air time. The text disclosing sponsors must be at least 4% of the vertical picture height. Billboards must also contain a disclaimer at least 4% of their height. The rules also require that disclosures in radio ads must be clearly spoken, and ads delivered by hand or through the mail must have clearly readable disclaimers. Ads posted on social media must contain a link to a site disclosing the sponsors of the content. 

The Commission previously adopted another set of rules regarding Proposition 211 on Aug. 24. Those rules established “procedures to protect donors who believe they face harm from disclosure of their identities, notifying donors of their right to opt out of having their funds used for campaign media spending, as well as technical rules related to record-keeping and deadlines.”

Proponents of the rules highlighted the Commission’s consideration of public comments, while others said the rules were premature or ambiguous:

  • Arizona Citizens Clean Elections Commission Executive Director Tom Collins said the Commission will continue to discuss public comments on the proposed rules and will seek to adopt final requirements in October. Collins said, “We are pleased with the level of interest that these proposals have received and we look forward to continued feedback from the public and stakeholders.” 
  • People United for Privacy, which describes itself as a bipartisan advocacy organization that “encourage[s] elected officials to protect every American’s right to privately support the causes they believe in,” issued a statement saying, “With so much uncertainty and opposition to the law, the Commission’s rulemaking is premature. By enacting rules in the face of legal ambiguity, the Commission is ensuring only more chaos for regulated entities.” 
  • Campaign Legal Center attorney Elizabeth Shimek said, “The proposed standards leave potential ambiguity as to what would qualify as, for example, ‘clearly readable or ‘clearly spoken.’” 

Three groups of plaintiffs have filed lawsuits challenging Proposition 211. On Dec. 13, 2022, the Center for Arizona Policy, Inc. and the Arizona Free Enterprise Club sued Gov. Katie Hobbs (D), alleging the law “violates Arizonans’ right to speak freely by chilling donors from supporting causes they believe in and wish to support, lest their charitable giving become public knowledge.” Americans for Prosperity filed a lawsuit on March 17, 2023. The group alleged Proposition 211 violated the First Amendment right to free speech by disclosing contributions made by donors to nonprofits. 

Most recently, Arizona Senate President Warren Petersen (R) and House Speaker Ben Toma (R) filed a lawsuit with the Maricopa County Superior Court challenging Proposition 211. They allege the measure gives the Commission executive, legislative, and judicial functions when the commission is appointed and not elected and bars lawmakers from altering anything that appears on the ballot.

In the courts

New Mexico Supreme Court rules nonprofits must disclose donor information

On Sept. 28, the New Mexico Supreme Court ruled that nonprofit organizations that raise money for the University of New Mexico must comply with public records laws. The court ruled that the UNM Foundation and the Lobo Club, two nonprofits that raise money for the university and its athletic department, are not exempt from requests for information under the Inspection of Public Records Act. The case stemmed from two lawsuits journalist Daniel Libit filed in 2017 seeking access to donor records. New Mexico Foundation for Open Government Executive Director Melanie Majors said, “I think it’s encouraging. Trust and accountability are the cornerstone of democracy. We’re happy [the Supreme Court] stood by what was said before in lower court opinions.” UNM Foundation representative Gabe Gomez said, “The UNM Foundation is, and always has been, dedicated to striking the proper balance between transparency and protection of donor privacy. While we are disappointed by the decision of the Supreme Court, we respect the court’s decision. This case, however, is not over.” Gomez said one of the cases was remanded to a district court, where the foundation will argue that donor anonymity is protected by the First Amendment.

State by state

Since Sept. 6, state legislatures have not acted on any donor privacy and disclosure bills. One bill was acted on in August. We have followed a total of 55 bills in 2023. In comparison, we tracked 77 bills at this point in 2022 and 41 bills at this point in 2021. Click here for a complete list of all the bills we’re following.

States have approved more donor privacy and disclosure legislation this year than in the past three years, with the number of bills passed increasing yearly since 2020. See our analysis of enacted bills from 2020 to 2023 here

The map and charts below show donor privacy and disclosure bills introduced by state and bills by partisan sponsorship from 2020 to 2023, respectively. 

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? Check out the following Ballotpedia pages: