COMMITTEE FOR JUSTICE & FAIRNESS v. Arizona Secretary of State's Office ( 2014 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
COMMITTEE FOR JUSTICE & FAIRNESS (CJF), a non-profit organization,
Plaintiff/Appellee,
v.
ARIZONA SECRETARY OF STATE’S OFFICE, a governmental entity; KEN
BENNETT, in his official capacity as Secretary of State; AMY CHAN, in her
official capacity as State Elections Director for the Secretary of State; WILLIAM
G. MONTGOMERY, Maricopa County Attorney, in his official capacity;
MARICOPA COUNTY ATTORNEY’S OFFICE, a governmental entity,
Defendants/Appellants.
No. 1 CA-CV 13-0037
FILED 08-07-2014
Appeal from the Superior Court in Maricopa County
No. LC2011-000734-001
The Honorable Crane McClennen, Judge
VACATED IN PART; REVERSED IN PART
COUNSEL
Polsinelli, P.C., Phoenix
By Marty Harper, Thomas K. Irvine
Counsel for Plaintiff/Appellee
Maricopa County Attorney’s Office, Phoenix
By M. Colleen Connor, Bruce P. White
Counsel for Defendants/Appellants
Ballard Spahr, L.L.P., Phoenix
By Joseph A. Kanefield, Brunn W. Roysden III
Counsel for Amicus Curiae Citizens Clean Elections Commission
Scharf-Norton Center for Constitutional Litigation, Phoenix
By Nicholas C. Dranias
Counsel for Amicus Curiae Goldwater Institute
OPINION
Judge Lawrence F. Winthrop delivered the opinion of the Court, in which Presiding
Judge Patricia A. Orozco and Judge Kenton D. Jones joined.
W I N T H R O P, Judge:
¶1 The Committee for Justice and Fairness (“CJF”) is a national
political organization that operates primarily for the purpose of influencing
state and local elections. In 2010, CJF financed the creation and
dissemination of an advertisement broadcast on a Phoenix-area television
station immediately before the general election. The ad attacked the record
of one of the two candidates for Attorney General, Tom Horne. After
learning CJF had failed to follow Arizona’s registration and disclosure
requirements applicable to political committees that raise and spend money
to influence the outcome of an election in Arizona, see generally Ariz. Rev.
Stat. (“A.R.S.”) §§ 16-901 to -925,1 the Maricopa County Attorney’s Office
(“MCAO”) issued an order pursuant to § 16-924,2 requiring CJF to register
as a political committee and comply with Arizona’s campaign finance
reporting and disclosure laws.
¶2 After an Administrative Law Judge (“ALJ”) recommended
MCAO’s order be upheld, the Maricopa County Attorney issued a Final
Decision ordering CJF to register as a political committee and comply with
the applicable campaign reporting and disclosure requirements. The
1 We cite the current version of the applicable statutes unless
otherwise indicated.
2 Section 16-924 provides for the Attorney General or a county
attorney to issue orders requiring compliance and otherwise assessing civil
penalties for violations of Arizona’s laws pertaining to campaign
contributions and expenses.
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superior court reversed and vacated the recommended order and Final
Decision after concluding (1) the ad was not subject to Arizona’s disclosure
requirements because it was merely issue-oriented speech rather than
express advocacy, and (2) the disclosure statutes at issue are
unconstitutional.
¶3 In this opinion, we conclude CJF’s advertisement qualifies as
“express advocacy” as defined in A.R.S. § 16-901.01(A)(2)(a), the
advertisement qualifies as an independent expenditure designed to
influence the 2010 Attorney General election, and CJF is a political
committee that must comply with Arizona’s political committee
registration and disclosure requirements. We also conclude the superior
court erred in finding the applicable statutes unconstitutional.
Accordingly, we vacate the portion of the superior court’s judgment
holding unconstitutional A.R.S. § 16-901.01(A)(1) and the now-repealed
subpart (b) of § 16-901.01(A)(2), and reverse the remainder of the court’s
judgment.
FACTS AND PROCEDURAL HISTORY
¶4 In 2010, shortly before the November general election, CJF
caused to be broadcast on Phoenix area Channel 12 a television
advertisement regarding Tom Horne, one of the two candidates for
Attorney General. At the time, Horne was still the Superintendent for
Public Instruction. The advertisement claimed that (1) when Horne was a
state legislator, he had “voted against tougher penalties for statutory
rape,”3 and (2) when Horne was on the Arizona Board of Education, he
used his vote to allow “back in the classroom” a teacher who had been
caught by students “looking at child pornography on a school computer.“4
3 As a state representative in 2000, Horne voted against House Bill
2587, a bill that would in part have raised statutory rape from a class six
felony to a class four felony. See Sexual Conduct With a Minor, H.R. 2587,
44th Leg. (2nd Reg. Sess. 2000). The bill failed by a 41-12 vote of the
Committee of the Whole, due in part to concerns the bill went too far and
would punish teens having consensual sex with other teens, such as an 18-
year-old in a sexual relationship with a 17-year-old. The majority of the
bill’s co-sponsors also voted against the bill.
4 In 2006, the teacher was recertified by a 6-5 vote of the State Board of
Education, four years after he resigned in 2002. The recertification action
had been recommended by the education department’s Professional
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The advertisement urged viewers to “[t]ell Superintendent Horne to protect
children, not people who harm them,” and displayed photographs of
Horne and his office telephone number as Superintendent of Public
Instruction.
¶5 On October 21, 2010, Horne filed suit in Maricopa County
Superior Court, seeking a temporary restraining order (“TRO”) to enjoin
CJF and local television stations from airing the advertisement. Based on
Pacion v. Thomas, 225 Ariz. 168, 236 P.3d 395 (2010), and the exclusive
remedy set forth in A.R.S. §§ 16-912(E) and 16-924, the superior court
denied Horne’s application for a TRO. See Horne v. Committee for Justice &
Fairness, Maricopa County Cause No. CV 2010-053307 (order dated Oct. 27,
2010).
¶6 Meanwhile, on October 22, 2010, Horne’s election committee
filed with the Arizona Secretary of State a complaint alleging CJF had
engaged in express advocacy and was thus subject to the requirements of
A.R.S. § 16-901 et seq. The complaint alleged that, before broadcasting the
advertisement, CJF did not register as a political committee but had made
expenditures to influence the outcome of the election for Attorney General
without complying with Arizona’s campaign finance reporting and
disclosure requirements.
¶7 On October 25, 2010, the Arizona Secretary of State issued a
Reasonable Cause Notice, stating there was reasonable cause to believe CJF
had violated A.R.S. §§ 16-902 and 16-912. The Arizona Secretary of State
notified the Attorney General of that finding. Horne was ultimately elected
Attorney General, and to avoid any conflict of interest, the Arizona
Attorney General’s Office requested by letter dated January 26, 2011, that
MCAO assume enforcement and litigation of the matter.
¶8 On May 23, 2011, MCAO issued an Order Requiring
Compliance to CJF pursuant to A.R.S. § 16-924. The order required CJF to
do the following: (1) register as a political committee with the Arizona
Secretary of State, (2) notify the Secretary of State of CJF’s designated
Practices Advisory Committee, which concluded the teacher had
demonstrated over the previous four years that he was rehabilitated. The
ALJ ultimately found CJF’s advertisement contained “inaccurate
information” because the reference to the school teacher who had been
discovered viewing child pornography was “false.” (A previous forensic
review of the computer by the Maricopa County Sheriff’s Office revealed
adult pornography on the teacher’s computer, but no child pornography.)
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financial institutions, (3) file the required campaign finance reports, (4)
provide financial records reflecting the cost of producing the
advertisements, (5) comply with the requirements of Arizona’s campaign
finance laws, and (6) comply with the request for financial records. As
permitted in A.R.S. § 16-924(A), CJF requested a hearing, and MCAO
forwarded that appeal to the Office of Administrative Hearings for a formal
hearing.
¶9 On August 31, 2011, the ALJ held an administrative hearing,
and on September 23, he issued a Decision, supported by his findings of
fact and conclusions of law. The ALJ determined in part that (1) CJF had
made expenditures that expressly advocated against the election of Horne,
(2) CJF is a political committee as defined by A.R.S. § 16-901(19), (3) CJF
violated A.R.S. § 16-902.01(A) by failing to register as a political committee,
(4) CJF was required to file campaign finance reports pursuant to A.R.S.
§§ 16-913, -915, and -918, (5) CJF’s failure to do so violated A.R.S. § 16-913,
and (6) CJF had violated A.R.S. § 16-904(J) by failing to respond to MCAO’s
request for financial records reflecting the cost for the production of the
television advertisement. The ALJ’s Decision recommended MCAO’s May
23, 2011 Order Requiring Compliance be affirmed and upheld, and CJF be
ordered to register as a political committee and comply with the applicable
campaign reporting and disclosure requirements. On October 17, 2011, the
Maricopa County Attorney issued a Final Decision accepting and adopting
the ALJ’s findings of fact, conclusions of law, and recommended order.
¶10 CJF filed a complaint in the Maricopa County Superior Court
seeking judicial review of the Maricopa County Attorney’s October 17 Final
Decision accepting and adopting the ALJ’s September 23 Decision. See
A.R.S. §§ 12-124(A), -904(B), -905(A), 16-924(C). After briefing by the parties
and oral argument, the superior court took the matter under advisement.
¶11 In a minute entry filed October 11, 2012, the superior court
reversed and vacated the recommended order of the ALJ and the Final
Decision of the Maricopa County Attorney. The superior court concluded
(1) the advertisement “was issue-oriented speech and not ‘express
advocacy,’” (and thus CJF was not required to register or file financial
reports), and (2) “A.R.S. §§ 16-901, -901.01, -902.01, -913, and related statutes
are unconstitutional.”5 The court provided no analysis or explanation,
5 Assuming the superior court’s initial ruling can be understood as
determining CJF was not subject to the statutory registration and disclosure
requirements, the court did not have to further address the constitutionality
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other than to conclude “the authorities and arguments presented by CJF are
well-taken.”
¶12 On November 28, 2012, the superior court entered its final
judgment in favor of CJF, including an award of costs and attorneys’ fees.
The final judgment identified only the following provisions of Arizona’s
campaign finance laws as unconstitutional: (1) the portion of A.R.S. § 16-
901.01(A)(1) that includes the phrase “or a campaign slogan or words that
in context can have no reasonable meaning other than to advocate the
election or defeat of one or more clearly identified candidates,” (2) A.R.S.
§ 16-901.01(A)(2)(a), and (3) A.R.S. § 16-901.01(A)(2)(b).6
¶13 The Arizona Secretary of State and MCAO filed a timely
notice of appeal. We have jurisdiction pursuant to A.R.S. §§ 12-913 and 12-
2101(A)(1).
ANALYSIS
¶14 In its opening brief, MCAO raises two issues for review: (1)
whether CJF qualifies as a political committee that must comply with
Arizona’s political committee registration and disclosure requirements, and
(2) whether Arizona’s disclosure requirements are constitutional.
I. Was CJF Required To Comply With Arizona’s Political Committee
Registration And Disclosure Requirements?
A. Standard of Review
¶15 Subsection (C) of A.R.S. § 16-924 makes the Administrative
Review Act (“ARA”), see A.R.S. §§ 12-901 to -914, applicable here. As such,
we rely on cases under the ARA relating to actions by executive branch
of the statutes, and that part of its decision may be considered an advisory
ruling.
6 The final judgment was submitted by counsel for CJF. It is not clear
from the judgment whether the superior court intended to scale back its
previous ruling that “A.R.S. §§ 16-901, -901.01, -902.01, -913, and related
statutes are unconstitutional,” or whether its final judgment might be
construed as a clarification that only the majority of A.R.S. § 16-901.01(A) is
unconstitutional, and § 16-901.01(A)’s unconstitutionality effectively
invalidates the efficacy of the other statutes. Ultimately, however, this lack
of clarity does not affect our analysis.
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agencies. In this case, the superior court’s scope of review was
circumscribed by A.R.S. § 12-910(E):
The court may affirm, reverse, modify or vacate and
remand the agency action. The court shall affirm the agency
action unless after reviewing the administrative record and
supplementing evidence presented at the evidentiary hearing
the court concludes that the action is not supported by
substantial evidence, is contrary to law, is arbitrary and
capricious or is an abuse of discretion.
¶16 Thus, in reviewing an administrative decision, the superior
court examines whether the challenged action was illegal, arbitrary,
capricious, or involved an abuse of discretion. See Gaveck v. Ariz. State Bd.
of Podiatry Exam’rs, 222 Ariz. 433, 436, ¶ 11, 215 P.3d 1114, 1117 (App. 2009);
Havasu Heights Ranch & Dev. Corp. v. Desert Valley Wood Prods., Inc., 167 Ariz.
383, 386, 807 P.2d 1119, 1122 (App. 1990). The superior court defers to
factual findings supported by substantial evidence, and may not substitute
its own judgment where factual questions and substantive expertise are
involved. See Gaveck, 222 Ariz. at 436, ¶ 11, 215 P.3d at 1117 (“If an agency’s
decision is supported by the record, substantial evidence exists to support
the decision even if the record also supports a different conclusion.” (citing
DeGroot v. Ariz. Racing Comm’n, 141 Ariz. 331, 336, 686 P.2d 1301, 1306 (App.
1984))).
¶17 On appeal, we determine whether the record contains
evidence to support the superior court’s judgment, and in so doing, we also
reach the underlying question of whether the administrative entity acted in
contravention of the law, arbitrarily, capriciously, or in abuse of its
discretion. Saldate v. Montgomery, 228 Ariz. 495, 498, ¶ 10, 268 P.3d 1152,
1155 (App. 2012); accord Sanders v. Novick, 151 Ariz. 606, 608, 729 P.2d 960,
962 (App. 1986). In administrative appeals, neither the superior court nor
this court reweighs the evidence. St. Joseph’s Hosp. v. Ariz. Health Care Cost
Containment Sys., 185 Ariz. 309, 312, 916 P.2d 499, 502 (App. 1996) (citing
Havasu Heights, 167 Ariz. at 387, 807 P.2d at 1123). Nevertheless, “[w]hether
substantial evidence exists is a question of law for our independent
determination.” Gaveck, 222 Ariz. at 436, ¶ 12, 215 P.3d at 1117 (citations
omitted). Furthermore, we review de novo the legal issues, including those
involving statutory interpretation. Id.; Kromko v. City of Tucson, 202 Ariz.
499, 501, ¶ 4, 47 P.3d 1137, 1139 (App. 2002).
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B. Analysis
¶18 MCAO argues that CJF qualifies as a political committee that
must comply with Arizona’s political committee registration and disclosure
requirements. We agree.
¶19 Title 16, Chapter 6, of the Arizona Revised Statutes provides
the statutory framework for the regulation of “Campaign Contributions
and Expenses” in Arizona. Under A.R.S. § 16-902.01(A), “[e]ach political
committee that intends to accept contributions or make expenditures of
more than five hundred dollars shall file a statement of organization . . .
before accepting contributions [or] making expenditures.” Additionally, a
political committee making an expenditure for an advertisement expressly
advocating the election or defeat of a candidate “shall be registered
pursuant to this chapter at the time of distribution [or] placement . . . and
shall include on the . . . advertisement the words ‘paid for by’ followed by
the name of the committee that appears on its statement of organization or
five hundred dollar exemption statement.” A.R.S. § 16-912(A); see also
A.R.S. § 16-902.01(A) (providing for registration of political committees). If
the expenditure for a political committee’s advertisement is an independent
expenditure, see infra ¶ 23, the political committee must also “include on the
. . . advertisement the names and telephone numbers of the three political
committees making the largest contributions to the political committee
making the independent expenditure.” A.R.S. § 16-912(B). Other
disclosure requirements apply for political committees as well. See, e.g.,
A.R.S. §§ 16-902 (providing requirements for the organization of political
committees); -902.01(B) (listing the required contents of a statement of
organization); -902.02 (addressing registration and initial reporting of out-
of-state political committees); -904 (providing the duties of a political
committee’s treasurer); -913 (requiring the filing of campaign finance
reports).
¶20 Under A.R.S. § 16-901(19), a political committee is defined in
pertinent part as follows:
“Political committee” means . . . any association or
combination of persons that is organized, conducted or
combined for the purpose of influencing the result of any election
or to determine whether an individual will become a
candidate for election in this state . . . that engages in political
activity in behalf of or against a candidate for election . . . that
receives contributions or makes expenditures of more than two
hundred fifty dollars in connection therewith, notwithstanding
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that the association or combination of persons may be part of
a larger association, combination of persons or sponsoring
organization not primarily organized, conducted or
combined for the purpose of influencing the result of any
election in this state or in any county, city, town or precinct in
this state.
(Emphasis added.)7 Thus, a committee or group organized for the purpose
of influencing the result of an election, which engages in political activity
for or against a candidate and makes expenditures8 in connection
therewith, qualifies as a political committee subject to registration and
disclosure requirements. See generally Van Riper v. Threadgill, 183 Ariz. 580,
582-83, 905 P.2d 589, 591-92 (App. 1995).
¶21 In this case, the ALJ found that CJF, whose business office is
in Washington, D.C. and primary financial contributor is the Democratic
Attorneys General Association (“DAGA”) located in Denver, Colorado, is a
political organization as defined by the Internal Revenue Code at 26 U.S.C.
§ 527, and that, in its 2009 Form 90-EZ filed with the Internal Revenue
Service, CJF acknowledged, as its “primary exempt purpose,” that it
operates “for the purpose of accepting donations in order to make
disbursements . . . to indirectly influence the selection, nomination, election,
or appointment of individuals to state or local public office.”9 The ALJ
further found that, at the time of the broadcast, Horne was a Republican
candidate for the office of Attorney General, and that CJF spent
7 In 2012, the legislature amended subsection (19) of the statute by
adding the phrase “of more than two hundred fifty dollars.” See 2012 Ariz.
Sess. Laws, ch. 361, § 16 (2nd Reg. Sess.).
8 The term “expenditure“ includes a payment of money for the
purpose of influencing an election in this state. See A.R.S. § 16-901(8).
9 A political organization that is influencing or attempting to influence
the selection, nomination, election, or appointment of an individual to a
federal, state, or local public office is tax-exempt on its gross receipts over
$25,000 if the organization registers and files disclosure statements under
§ 527 of the Internal Revenue Code. See 26 U.S.C. § 527.
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approximately $1.5 million to produce and broadcast the advertisement in
question. The record fully supports the ALJ’s factual findings.10
¶22 CJF cannot and does not dispute that it is a political
organization, or that it spent money to create and disseminate the
advertisement in question. Nevertheless, CJF argues, and the ALJ found,
that nowhere in the advertisement is there a specific reference to Horne as
a candidate, and the advertisement does not mention any other candidate,
election, or political party. CJF therefore maintains it should not be
required to register as a political committee and comply with the disclosure
requirements because its advertisement was merely an “issue-oriented
television ad” designed to advocate “for America’s middle-class families”
and did not qualify as political activity designed to influence the impending
election for Attorney General.
¶23 MCAO argues, however, that CJF’s advertisement qualifies as
an independent expenditure designed to influence the 2010 Attorney
General election. An independent expenditure is defined in pertinent part
as follows:
“Independent expenditure” means an expenditure by a
person or political committee, other than a candidate’s
campaign committee, that expressly advocates the election or
defeat of a clearly identified candidate, that is made without
cooperation or consultation with any candidate or committee
or agent of the candidate and that is not made in concert with
or at the request or suggestion of a candidate, or any
committee or agent of the candidate.
A.R.S. § 16-901(14) (emphasis added).
¶24 The parties’ argument revolves around the “expressly
advocates” language of A.R.S. § 16-901(14) and whether the advertisement
qualifies as “express advocacy.” See also A.R.S. § 16-912. If so, CJF concedes
it would be subject to the political committee registration and disclosure
requirements. As pertinent here, in 2010, A.R.S. § 16-901.01(A) defined the
term “expressly advocates” as follows:
10 Based on these factual findings, the ALJ concluded as a matter of law
that “CJF is a political committee, as defined by A.R.S. § 16-901(19).”
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A. For purposes of this chapter, “expressly advocates”
means:
1. Conveying a communication containing a phrase such
as “vote for,” “elect,” “re-elect,” “support,” “endorse,” “cast
your ballot for,” “(name of candidate) in (year),” “(name of
candidate) for (office),” “vote against,” “defeat,” “reject,” or a
campaign slogan or words that in context can have no
reasonable meaning other than to advocate the election or
defeat of one or more clearly identified candidates, or
2. Making a general public communication, such as in a
broadcast medium, newspaper, magazine, billboard, or direct
mailer referring to one or more clearly identified candidates and
targeted to the electorate of that candidate(s):
(a) That in context can have no reasonable meaning other than
to advocate the election or defeat of the candidate(s), as evidenced
by factors such as the presentation of the candidate(s) in a
favorable or unfavorable light, the targeting, placement, or
timing of the communication, or the inclusion of statements
of the candidate(s) or opponents, or
(b) In the sixteen-week period immediately preceding a
general election.
A.R.S. § 16-901.01(A) (emphasis added).
¶25 In this case, CJF’s advertisement clearly did not use any of the
“magic words” listed in A.R.S. § 16-901.01(A)(1), and MCAO does not
appear to argue the advertisement contained a campaign slogan or similar
words that would qualify as express advocacy under the remainder of
subsection (A)(1).11 Consequently, the remainder of our analysis focuses on
11 Because it appears subsection (A)(1) of A.R.S. § 16-901.01 is
inapplicable to this case, its constitutionality was not properly before the
superior court and is not properly before this court. See Progressive Specialty
Ins. Co. v. Farmers Ins. Co. of Ariz., 143 Ariz. 547, 548, 694 P.2d 835, 836 (App.
1985) (“It is not an appellate court’s function to declare principles of law
which cannot have any practical effect in settling the rights of litigants.”
(citation omitted)). As a matter of judicial restraint, courts should not give
advisory opinions. See Home Builders Ass’n of Cent. Ariz. v. Kard, 219 Ariz.
374, 377, ¶ 9, 199 P.3d 629, 632 (App. 2008). Accordingly, we vacate as
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whether CJF’s advertisement qualifies as express advocacy under
subsection (2) of A.R.S. § 16-901.01(A). We turn first to the question of
whether CJF’s advertisement qualifies as express advocacy under subpart
(a) of A.R.S. § 16-901.01(A)(2).
¶26 In his conclusions of law, the ALJ concluded that “CJF’s
advertisement constituted express advocacy pursuant to A.R.S. § 16-
901.01(A)(2).” Although not bound by the ALJ’s legal conclusion, we
nevertheless agree with his conclusion and note the factual findings
underpinning his reasoning are supported by substantial evidence. As the
ALJ recognized:
The advertisement referred by name to Tom Horne, who was
by that time clearly identified as the Republican candidate for
Attorney General. It was aired on Channel 12, which
broadcasts in the greater Phoenix metropolitan area and
beyond, and thus may be presumed to have targeted the
electorate for such a statewide office. Although the
advertisement only referred to Tom Horne in his then[-]
position of Superintendent of Public Instruction and called
upon viewers to contact him at his office in the Department of
Education, the only reasonable purpose for running an
advertisement, during an election campaign, which cost
approximately $1.5 million to produce and broadcast, to
critique Tom Horne’s past actions as a former member of the
inapplicable that portion of the superior court’s judgment finding
unconstitutional the portion of A.R.S. § 16-901.01(A)(1) containing the
phrase “or a campaign slogan or words that in context can have no
reasonable meaning other than to advocate the election or defeat of one or
more clearly identified candidates.” We also note the superior court’s
ruling with respect to that provision is in conflict with this court’s previous
opinion in Kromko. See 202 Ariz. at 502-03, ¶¶ 9-10, 47 P.3d at 1140-41.
Moreover, language nearly identical to that codified in subsection (A)(1)
has been examined with approval by federal courts. See, e.g., Free Speech v.
Fed. Election Comm’n, 720 F.3d 788, 793-94 (10th Cir. 2013) (stating that the
language of 11 C.F.R. § 100.22(a) is consistent with the Supreme Court’s
guidance in Buckley v. Valeo, 424 U.S. 1, 44 (1976)), cert. denied, 134 S. Ct. 2288
(2014); see also McConnell v. Fed. Election Comm’n, 540 U.S. 93, 190-94 (2003)
(recognizing “the presence or absence of magic words cannot meaningfully
distinguish electioneering speech from a true issue ad”), overruled in part on
other grounds by Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).
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legislature and as an occupant of a post he would soon vacate,
was to advocate his defeat as candidate for Attorney General.
¶27 These facts meet the test for express advocacy under A.R.S.
§ 16-901.01(A)(2)(a). The broadcast medium utilized by CJF for its public
communication, Phoenix television Channel 12, which broadcasts in the
greater Phoenix metropolitan area and beyond, clearly targeted a major
portion of the electorate for the statewide office of Attorney General, and it
did so within days of the election. In fact, nothing in the record indicates it
would have been possible to more narrowly target such a significant
portion of the electorate for that office.
¶28 Further, although CJF argues Horne was not a “clearly
identified candidate” because the advertisement did not specifically
identify him as a candidate for Attorney General, no question exists that
Horne was in fact a “clearly identified candidate” as defined under
Arizona’s statutory scheme. “‘Clearly identified candidate’ means that the
name, a photograph or a drawing of the candidate appears or the identity
of the candidate is otherwise apparent by unambiguous reference.” A.R.S.
§ 16-901(4). Accord 11 C.F.R. § 100.17. In the advertisement promulgated
by CJF, Horne was identified through his name, photographs, and his prior
and then-current public offices. Moreover, by the time the advertisement
was run, Horne had been clearly identified to the general populace as the
Republican candidate for Attorney General. It was unnecessary for the
advertisement to further identify the position he sought.
¶29 Finally, as the ALJ noted, the advertisement criticized Horne’s
past actions both as a former member of the legislature and as the
Superintendent for Public Instruction, a position he would soon vacate.
Contrary to CJF’s argument that the advertisement “addressed the
important issue of protecting Arizona[‘s] schoolchildren from statutory
rape and from teachers who view pornographic materials in the
classroom,” the only reasonable purpose for running such an advertisement
immediately before the election was to advocate Horne’s defeat as
candidate for Attorney General.
¶30 In sum, CJF as a political organization made a general public
communication in a broadcast medium referring to a clearly identified
candidate and targeted to the electorate of that candidate, that in context
could have no reasonable meaning other than to advocate the defeat of that
candidate, as evidenced by factors such as the presentation of the candidate
in an unfavorable light and the targeting, placement, and timing of the
communication. In this case, reasonable minds could not differ as to
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whether CJF’s advertisement encouraged a vote against Horne.12 As a
result, CJF’s advertisement was express advocacy as statutorily defined in
A.R.S. § 16-901.01(A)(2)(a).13 Therefore, under Arizona’s statutes, CJF was
a political committee that made independent expenditures and was
required to comply with Arizona’s political committee registration and
campaign contribution disclosure laws.
II. Are Arizona’s Disclosure Requirements Constitutional?
¶31 MCAO next argues the superior court erred in concluding
that A.R.S. § 16-901.01(A)(2)(a) and Arizona’s registration and disclosure
requirements, which closely parallel federal law, are unconstitutional. CJF
maintains Arizona’s definition of express advocacy under A.R.S. § 16-
901.01(A)(2)(a) is unconstitutional, and challenges its status as a political
committee and the resulting political committee registration and campaign
contribution disclosure requirements. We agree with MCAO.
12 See generally Citizens United, 558 U.S. at 326 (“[T]here is no reasonable
interpretation of [the film] Hillary other than as an appeal to vote against
Senator Clinton.”); Fed. Election Comm’n v. Furgatch, 807 F.2d 857, 864-65 (9th
Cir. 1987) (“There is vagueness in Furgatch’s message, but no ambiguity.”);
but see Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1098 (9th Cir. 2003)
(“[A] close reading of Furgatch indicates that we presumed express
advocacy must contain some explicit words of advocacy.”); Kromko, 202
Ariz. at 502-03, ¶¶ 10-11, 47 P.3d at 1140-41 (adopting in part Furgatch, but
appearing to limit its holding in light of criticism of Furgatch).
13 Because we hold that CJF’s advertisement qualifies as express
advocacy under subpart (a) of A.R.S. § 16-901.01(A)(2), we need not and do
not analyze whether the advertisement qualifies as express advocacy under
subpart (b) of the statute. Although the superior court’s final judgment
found unconstitutional both subparts (a) and (b) of A.R.S. § 16-901.01(A)(2),
the legislature repealed subpart (b) (and also made insignificant
amendments to subsection (A)(1)) before the court issued its final judgment.
See 2012 Ariz. Sess. Laws, ch. 257, § 1 (2nd Reg. Sess.). The superior court’s
ruling as to the constitutionality of subpart (b) was merely an advisory
ruling on a repealed subsection of the statute; consequently, we vacate that
portion of the superior court’s judgment and do not further analyze subpart
(b)’s constitutionality. See Home Builders Ass’n, 219 Ariz. at 377, ¶ 9, 199 P.3d
at 632; Progressive Specialty Ins. Co., 143 Ariz. at 548, 694 P.2d at 836.
14
CJF v. ARIZONA et al.
Opinion of the Court
A. Standard of Review – Exacting Scrutiny
¶32 The parties disagree as to the standard of review this court
should employ in analyzing the statutes at issue, either “strict scrutiny” or
a less stringent “exacting scrutiny” standard. Citing Federal Election
Commission v. Wisconsin Right to Life, Inc. (“WRTL”), CJF argues it was
involved in issue advocacy, and the strict scrutiny standard must be applied
to any statute attempting to regulate or prohibit such speech. See 551 U.S.
449, 464 (2007) (“Because [the statute] burdens political speech, it is subject
to strict scrutiny.”).14 Under strict scrutiny, the government must prove
that applying the challenged statutes to CJF’s advertisement “furthers a
compelling interest and is narrowly tailored to that interest.” Id. (citation
omitted).
¶33 In this case, however, because A.R.S. § 16-901.01(A)(2)(a) and
the statutes related to it ultimately implicate only disclosure requirements,
we apply the exacting scrutiny standard. See Free Speech, 720 F.3d at 792-93;
see also N.M. Youth Org. v. Herrera, 611 F.3d 669, 676 (10th Cir. 2010)
(indicating a challenge to regulations defining a political committee is a
challenge to disclosure regulations). Although disclaimer and disclosure
requirements may burden the ability to speak, they “impose no ceiling on
campaign-related activities,” and “do not prevent anyone from speaking.”
Citizens United, 558 U.S. at 366 (quoting Buckley, 424 U.S. at 64; McConnell,
540 U.S. at 201). The Supreme Court subjects disclosure and disclaimer
requirements to exacting scrutiny, which requires the government to
demonstrate “a ‘substantial relation’ between the disclosure requirement
and a ‘sufficiently important’ governmental interest.” Citizens United, 558
U.S. at 366-67 (citing Buckley, 424 U.S. at 64, 66; McConnell, 540 U.S. at 231-
32); accord Real Truth About Abortion (“RTAA”) v. Fed. Election Comm’n, 681
F.3d 544, 549 (4th Cir. 2012) (“[A]n intermediate level of scrutiny known as
‘exacting scrutiny’ is the appropriate standard to apply in reviewing
provisions that impose disclosure requirements, such as the regulation and
policy.” (citations omitted)), cert. denied, 133 S. Ct. 841 (2013); Human Life of
Washington, Inc. v. Brumsickle, 624 F.3d 990, 1005 (9th Cir. 2010) (citing Doe
v. Reed, 561 U.S. 186, 196 (2010)), cert. denied, 131 S. Ct. 1477 (2011).
14 WRTL applied the strict scrutiny standard when examining the
constitutionality of § 203 of the Bipartisan Campaign Reform Act of 2002
(“BCRA”), 2 U.S.C. § 441b(b)(2) (2000 ed., Supp. IV), as applied to specific
issue-oriented ads, which the Court held were not the functional equivalent
of express advocacy. See 551 U.S. at 455-57, 464-65, 476-77. WRTL does not,
however, support CJF’s premise that CJF’s advertisement was solely issue
advocacy. See id. at 455-76.
15
CJF v. ARIZONA et al.
Opinion of the Court
¶34 Moreover, CJF’s reference to Citizens United for its argument
in favor of the application of strict scrutiny is misplaced. See RTAA, 681
F.3d at 549. CJF notes the Citizens United majority’s reference to “onerous
restrictions” on political action committee speech, which would ordinarily
be subject to strict scrutiny, see 558 U.S. at 337-40, and argues that Arizona’s
statutory scheme is similar to the one in Citizens United. As the Fourth
Circuit Court of Appeals has recognized, however, the Supreme Court in
Citizens United “distinguished its application of the strict scrutiny standard
to expenditure restrictions from the exacting scrutiny standard applicable
to disclosure requirement provisions.” RTAA, 681 F.3d at 549. The statutes
at issue in this case do not prevent anyone from speaking or impose ceilings
on campaign-related activities. See RTAA, 681 F.3d at 554 (“In contrast, [the
regulation] does not restrain speech; it only implicates the requirement for
disclosing specified information.” (emphasis in original)). Accordingly, we
apply exacting scrutiny to determine whether the statutes implicating
Arizona’s registration and disclosure requirements are constitutional.
B. A.R.S. § 16-901.01(A)(2)(a) and Disclosure Requirements
¶35 CJF challenges on an as-applied and facial basis the
constitutionality of A.R.S. § 16-901.01(A)(2)(a) under the United States and
Arizona constitutions.15 CJF maintains subpart (a) of § 16-901.01(A)(2) is
both overbroad and vague, and impermissibly chills speech.16 We disagree.
15 Both the First Amendment to the United States Constitution and
Article 2, Section 6, of the Arizona Constitution protect speech from
government abridgment. The First Amendment restrains government
interference with speech rights, whereas the Arizona Constitution
guarantees each individual’s right to speak freely. State v. Stummer, 219
Ariz. 137, 142, ¶ 14, 194 P.3d 1043, 1048 (2008). Although noting that our
supreme court has stated “Article 2, Section 6 has ‘greater scope than the
first amendment,’” id. at 143, ¶ 17, 194 P.3d at 1049 (quoting Mountain States
Tel. & Tel. Co. v. Ariz. Corp. Comm’n, 160 Ariz. 350, 354, 773 P.2d 455, 459
(1989)), CJF provides no argument that our analysis of the issues presented
here under the Arizona Constitution should differ from that used by courts
under the United States Constitution.
16 A law is facially overbroad under the First Amendment if “a
substantial number of its applications are unconstitutional, judged in
relation to the statute’s plainly legitimate sweep.” United States v. Stevens,
16
CJF v. ARIZONA et al.
Opinion of the Court
1. Overbreadth
¶36 Relying on Colorado Ethics Watch (“CEW”) v. Senate Majority
Fund, LLC, 269 P.3d 1248 (Colo. 2012), CJF suggests express advocacy
cannot permissibly extend beyond the Buckley “magic words” or
substantially similar synonyms, as codified in subsection (A)(1) of A.R.S.
§ 16-901.01. See CEW, 269 P.3d at 1255-57. Recent Supreme Court and
federal appellate court decisions, however, have upheld an approach to
defining express advocacy not only in terms of Buckley’s “magic words”
and substantially similar synonyms as recognized in subsection (A)(1), but
also their “functional equivalent,” as provided in subpart (a) of subsection
(A)(2). See Free Speech, 720 F.3d at 794 (citing RTAA, 681 F.3d at 550).
¶37 In McConnell, the Supreme Court considered a facial
overbreadth challenge to Title II, § 201, of the BCRA, which included a
provision defining express advocacy for purposes of electioneering
communications. 540 U.S. at 190-91. In rejecting the challenge, the Court
noted Buckley‘s narrow construction of the Federal Election Campaign Act
of 1971 to require express advocacy “was a function of the vagueness of the
[original] statutory definition of ‘expenditure,’ not an absolute First
Amendment imperative.” Free Speech, 720 F.3d at 794 (bracketed portion
omitted from original) (quoting RTAA, 681 F.3d at 550 (citing McConnell,
540 U.S. at 191–92)). Consequently, the Court held “Congress could
permissibly regulate not only communications containing the ‘magic
words’ of Buckley, but also communications that were ‘the functional
equivalent’ of express advocacy.” Id. at 795 (quoting RTAA, 681 F.3d at 550-
51 (citing McConnell, 540 U.S. at 193)).17
559 U.S. 460, 473 (2010) (quoting Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 442, 449 n.6 (2008)).
17 In his dissent in McConnell, Justice Thomas noted that the majority
opinion “overturned” all Court of Appeals decisions that had interpreted
Buckley as creating a constitutionally mandated line, and the only express
advocacy decision McConnell possibly did not cast into doubt was Furgatch.
540 U.S. at 278 n.11 (Thomas, J., dissenting). Furgatch rejected Buckley‘s
“magic words” test, and inspired the federal test for express advocacy
codified at 11 C.F.R. § 100.22(b). Paul S. Ryan, Wisconsin Right to Life and the
Resurrection of Furgatch, 19 Stan. L. & Pol’y Rev. 130, 140, 159 (2008)
(surmising that “the 11 C.F.R. § 100.22(b) Furgatch-like standard for
defining express advocacy is on solid legal ground” after WRTL).
17
CJF v. ARIZONA et al.
Opinion of the Court
¶38 In WRTL, the Court adopted a “functional equivalent” test.
See Free Speech, 720 F.3d at 795 (citing WRTL, 551 U.S. at 474 n.7; RTAA, 681
F.3d at 552). The Court’s controlling opinion held “a court should find that
an ad is the functional equivalent of express advocacy only if the ad is
susceptible of no reasonable interpretation other than as an appeal to vote
for or against a specific candidate.” WRTL, 551 U.S. at 469–70. This test
closely correlates to the test set forth in A.R.S. § 16-901.01(A)(2)(a), which
provides that a communication “expressly advocates” if it “can have no
reasonable meaning other than to advocate the election or defeat of the
candidate(s).” See Free Speech, 720 F.3d at 795 (comparing the WRTL test to
11 C.F.R. § 100.22(b), which provides that a communication expressly
advocates if it “could only be interpreted by a reasonable person as
containing advocacy of the election or defeat of one or more clearly
identified candidate(s)”). The test provided in A.R.S. § 16-901.01(A)(2)(a) is
certainly no broader than WRTL’s functional equivalent test. See id.; see also
RTAA, 681 F.3d at 552 (refuting a vagueness challenge to 11 C.F.R. §
100.22(b)).
¶39 Citizens United reaffirmed the WRTL functional equivalent
test’s constitutionality and provided further support for the use of such a
test to define express advocacy. See Free Speech, 720 F.3d at 795. In Citizens
United, the Supreme Court applied the WRTL test to determine whether the
communication at issue (a film released by Citizens United entitled Hillary:
The Movie) would be prohibited by the corporate funding restrictions set
forth in Title II of the BCRA. 558 U.S. at 324-26. The Court ultimately
concluded that, “[u]nder the standard stated in McConnell and further
elaborated in WRTL, the film qualifies as the functional equivalent of
express advocacy.” Id. at 326. The Court also upheld federal disclaimer
and disclosure requirements applicable to “electioneering
communications,” id. at 366-72, while “reject[ing] Citizens United’s
contention that the disclosure requirements must be limited to speech that
is the functional equivalent of express advocacy.” Id. at 369. Thus, in
addressing the permissible scope of disclosure requirements, the Court not
only rejected the “magic words” standard urged here by CJF, but also found
“disclosure requirements could extend beyond speech that is the
‘functional equivalent of express advocacy’ to address even ads that ‘only
pertain to a commercial transaction.’” Free Speech, 720 F.3d at 795 (quoting
Citizens United, 558 U.S. at 369). Contrary to CJF’s assertions, Citizens United
supports the use of a functional equivalent test in defining “express
advocacy.” See id.; RTAA, 681 F.3d at 551. “If mandatory disclosure
requirements are permissible when applied to ads that merely mention a []
candidate, then applying the same burden to ads that go further and are the
functional equivalent of express advocacy cannot automatically be
18
CJF v. ARIZONA et al.
Opinion of the Court
impermissible.” RTAA, 681 F.3d at 552 (emphasis in original), quoted in Free
Speech, 720 F.3d at 795. As a result, Citizens United directly contradicts CJF’s
argument that the definition of express advocacy set forth in subpart (a) of
A.R.S. § 16-901.01(A)(2) is overly broad with respect to disclosure
requirements.
¶40 CJF’s reliance on Federal Election Commission v. Massachusetts
Citizens for Life, Inc. (“MCFL”), 479 U.S. 238 (1986), is also unavailing. In
MCFL, the Supreme Court held that a section of the Federal Election
Campaign Act prohibiting direct expenditure of corporate funds in
connection with any federal election violated the First Amendment as
applied to a nonprofit corporation that published a newsletter urging
readers to vote “pro-life” and listing approximately 400 candidates for state
and federal office in Massachusetts who either supported or opposed the
corporation’s views. Id. at 241-45, 263-65. CJF speculates the position
advocated by MCAO in this case (treating CJF’s advertisement as express
advocacy subject to Arizona’s disclosure requirements) could force issue
advocacy groups such as MCFL to register as political committees and be
subject to Arizona’s disclosure requirements by treating their
communications as express advocacy.
¶41 MCFL involved whether a nonprofit advocacy group that was
engaged in express advocacy could raise and spend general fund money
directly on an election. Id. at 249-65. Thus, it was a case challenging a
restriction on independent spending as applied to MCFL, see id. at 263-64,
not a case directly challenging the constitutionality of disclosure laws, and
we see no reason to speculate on the potential overbreadth of A.R.S. § 16-
901.01(A)(2)(a) on an as-applied basis to groups other than CJF. Moreover,
to the extent the issue is properly before us, A.R.S. § 16-901.01(B) would
appear to address a situation such as that posed by CJF:
A communication within the scope of subsection A,
paragraph 2 shall not be considered as one that expressly
advocates merely because it presents information about the
voting record or position on a campaign issue of three or more
candidates, so long as it is not made in coordination with a
candidate, political party, agent of the candidate or party or a
19
CJF v. ARIZONA et al.
Opinion of the Court
person who is coordinating with a candidate or candidate’s
agent.[18]
¶42 Consequently, under A.R.S. § 16-901.01(B), a group such as
MCFL, which is engaged in independent communications about the voting
record or position on a campaign issue of three or more candidates, is not
necessarily considered to be one that expressly advocates, even if its
communication falls within the scope of A.R.S. § 16-901.01(A)(2).
2. Vagueness
¶43 We also reject CJF’s argument that A.R.S. § 16-901.01(A)(2)(a)
is impermissibly vague. As the Fourth Circuit noted when considering the
propriety of 11 C.F.R. § 100.22(b), “cases that fall close to the line will
inevitably arise when applying [the statute]. This kind of difficulty is
simply inherent in any kind of standards-based test.” RTAA, 681 F.3d at
554 (citing United States v. Williams, 553 U.S. 285, 306 (2008) (“Close cases
can be imagined under virtually any statute. The problem that poses is
[not] addressed . . . by the doctrine of vagueness . . . .”); United States v.
Wurzbach, 280 U.S. 396, 399 (1930) (“Wherever the law draws a line there
will be cases very near each other on opposite sides.”)); accord Nat’l Org. for
Marriage, Inc. v. Roberts, 753 F. Supp. 2d 1217, 1221 (N.D. Fla. 2010) (“The
fact that ‘it may be difficult in some cases to determine whether these clear
requirements have been met’ does not mean that the statute is void for
vagueness.” (quoting Williams, 553 U.S. at 306)).
¶44 Additionally, the mere fact that A.R.S. § 16-901.01(A)(2)(a)
identifies certain factors for consideration, most specifically the “timing of
the communication,” does not mean it is inconsistent with WRTL. See
RTAA, 681 F.3d at 554 (examining 11 C.F.R. § 100.22(b)’s “proximity to the
election” language in light of WRTL). WRTL “simply held that the timing
of speech cannot be used as a proxy for a speaker’s intent.” Id. (citing
WRTL, 551 U.S. at 472 (“To the extent th[e] evidence [regarding the timing
of WRTL’s ads] goes to WRTL’s subjective intent, it is again irrelevant.”)).
Under both WRTL and subpart (a) of § 16-901.01(A)(2), subjective intent is
not a consideration, and as the Supreme Court noted in WRTL, by virtue of
their time-sensitive statutory definition, “[e]very ad covered by [the
electioneering communication regulation] will . . . air just before a primary
or general election.” Id. (citing WRTL, 551 U.S. at 472 (emphasis in
18 In 2012, the legislature amended subsection (B) of A.R.S. § 16-901.01.
See 2012 Ariz. Sess. Laws, ch. 257, § 1 (2nd Reg. Sess.). We quote the current
version of the statute, as the amendments are immaterial to our analysis.
20
CJF v. ARIZONA et al.
Opinion of the Court
original)). Consequently, although “considering timing with respect to
electioneering communications would prove redundant, a limited
reference to whether, for example, an ad airs in an election year, would
actually help limit the number of communications that are considered
independent expenditures.” Id. The same is true regarding A.R.S. § 16-
901.01(A)(2)(a).
3. Potential Chilling Effect
¶45 CJF maintains that the possibility citizens or groups might
have to register as a political committee and disclose their largest donors
could have an impermissible chilling effect on speech. Although the
potential exists for disclosure requirements to have an unconstitutional
chilling effect on speech if a “reasonable probability” exists an organization
or its members may face threats, harassment, or reprisals due to disclosure,
see McConnell, 540 U.S. at 197-98; Citizens United, 558 U.S. at 370, CJF has
identified no instance of harassment or retaliation involving CJF or its
donors, despite the fact that CJF discloses contributor information through
reports filed with the Internal Revenue Service. Additionally, CJF has not
presented evidence that it was unfairly targeted by MCAO, or that MCAO
or the ALJ had an inherent bias against CJF.19
¶46 CJF also notes that violations of Arizona’s disclosure laws
may result in civil or even criminal penalties. See generally A.R.S. §§ 16-
904(K), -919(D)-(E), -924(B). CJF points to no evidence that any potential
penalties have chilled its speech. It appears the statutes implicated in this
19 CJF speculates that § 16-901.01(A)(2)(a) has been “unfairly and
unconstitutionally applied to CJF because . . . MCAO and the ALJ’s specific
reference to CJF’s largest contributor (DAGA) demonstrates an inherent
bias and presumption that any group funded by Democrats must
necessarily be engaging in express advocacy for the defeat of a Republican.”
The ALJ’s finding that CJF’s primary financial contributor is the Democratic
Attorneys General Association was one of many findings of fact made by
the ALJ. At most, the finding lent support to the ALJ’s conclusion that “CJF
is a political committee, as defined by A.R.S. § 16-901(19), because of its
stated purpose ‘of accepting donations in order to make disbursements . . .
to indirectly influence the selection, nomination, election, or appointment
of individuals to state or local public office.’” We disagree that the ALJ’s
finding demonstrated an inherent bias against CJF on the part of either
MCAO or the ALJ or in any way infringed on CJF’s ability to speak.
21
CJF v. ARIZONA et al.
Opinion of the Court
case only involve civil penalties, and much of any speculative chilling effect
is addressed by our analysis finding § 16-901.01(A)(2)(a) is neither
overbroad nor vague.20
¶47 In sum, CJF has failed to show Arizona’s disclosure laws are
unconstitutional as applied to CJF or that any, much less a substantial
number, of the applications of the disclosure laws are unconstitutional. See
Stevens, 559 U.S. at 473; see also Ctr. for Individual Freedom v. Madigan, 697
F.3d 464, 470 n.1 (7th Cir. 2012) (recognizing numerous decisions by federal
courts of appeals upholding federal and state disclosure regulations against
facial attacks), aff’g 735 F. Supp. 2d 994 (N.D. Ill. 2010). Accordingly, we
find no constitutional infirmity in Arizona’s disclosure requirements,
including A.R.S. § 16-901.01(A)(2)(a), both facially and as applied to CJF.
4. Purpose of Disclosure
¶48 The purpose of a registration requirement is to ensure
disclosure. See, e.g., Madigan, 735 F. Supp. 2d at 1000 (equating “election-
law disclosure requirements” discussed in Citizens United with
“registration requirements, including related reporting, recordkeeping, and
disclosure requirements”). Disclosure serves “substantial governmental
interests,” including (1) providing voters with information to aid them in
evaluating candidates and the sources of a candidate’s support, (2)
deterring actual corruption and avoiding the appearance of corruption by
exposing large contributions and expenditures to public light, and (3)
providing a means of gathering the data necessary to detect violators.
Buckley, 424 U.S. at 67-68; accord McConnell, 540 U.S. at 196 (acknowledging
Buckley and recognizing the “important state interests” served by
disclosure, including “providing the electorate with information, deterring
actual corruption and avoiding any appearance thereof, and gathering the
data necessary to enforce more substantive electioneering restrictions”);
Citizens United, 558 U.S. at 371 (“The First Amendment protects political
speech; and disclosure permits citizens . . . to react to the speech . . . in a
proper way. This transparency enables the electorate to make informed
decisions and give proper weight to different speakers and messages.”); see
also Human Life of Washington, 624 F.3d at 1005-06 (recognizing the “vital
provision of information” to voters through disclosure laws “repeatedly
has been recognized as a sufficiently important, if not compelling,
governmental interest”). The requirement of disclosure in this case is
20 We also note that a party such as CJF can request assistance from the
Secretary of State in complying with its reporting requirements.
22
CJF v. ARIZONA et al.
Opinion of the Court
substantially related to a sufficiently important governmental interest. See
Citizens United, 558 U.S. at 366.
III. Attorneys’ Fees
¶49 Citing A.R.S. §§ 12-348 and 12-349, CJF requests an award of
its costs and attorneys’ fees associated with the preparation of its answering
briefs in response to the MCAO and amicus curiae brief of the Citizens
Clean Elections Commission (“CCEC”). CJF is not the prevailing party, and
the positions set forth in the briefs of MCAO and CCEC were reasonable;
accordingly, CJF’s request is denied.
CONCLUSION
¶50 We vacate the portion of the superior court’s judgment
holding unconstitutional A.R.S. § 16-901.01(A)(1) and now-repealed
subpart (b) of § 16-901.01(A)(2) , and reverse the remainder of the superior
court’s judgment, including its award of costs and attorneys’ fees to CJF.
Further, we reinstate the Final Decision of the Maricopa County Attorney
requiring CJF to register as a political committee and comply with the
reporting requirements of Arizona’s campaign finance laws.
:gsh
23