Arizona Court of Appeals Division One Holds That Independent Advertisement Critical of a Candidate for Elected Office That Does Not Refer to the Person as a Candidate and That Does Not Mention Any Other Candidate, Election, or Political Party Is Express Advocacy Qualifying as an Independent Expenditure Under Arizona’s Campaign Finance Statutes Requiring That the Sponsoring Organization Register and Make Required Disclosures, and That Arizona Campaign Disclosure Statutes, A.R.S. § 16-901.01(A)(1) and § 16-901.01(A)(2)(b) Are Constitutional.

In 2010, a national political organization called the Committee for Justice and Fairness (“CJF”) financed the creation and broadcast of a television ad in the Phoenix area critical of Tom Horne, who was at the time one of the candidates for Arizona Attorney General.  Before the election, the Arizona Secretary of State notified the Arizona Attorney General and issued a Reasonable Cause Notice to CJF for violation of A.R.S. §§ 16-902 and 16-912.  After Horne was elected as Attorney General, the Arizona Attorney General’s office referred enforcement and litigation of the matter to the Maricopa County Attorney’s Office (“MCAO”) to avoid a possible conflict of interest.  Because CJF had not followed the registration and disclosure requirements set forth in A.R.S. §§ 16-901 to -925 for political committees that raise and spend money to influence the outcome of an election in Arizona, the MCAO issued an order pursuant to A.R.S. § 16-924 requiring CJF to register and comply with the relevant statutes.  CJF requested an administrative hearing, and an Administrative Law Judge recommended that MCAO’s order be upheld.  The Maricopa County Attorney then issued a Final Decision ordering CJF to register and comply. CJF filed a complaint in Maricopa County Superior Court challenging the MCAO’s final decision.  The superior court reversed and vacated the Final Decision because the ad was merely issue-oriented speech and because A.R.S. §§ 16-901, -901.01, -902.01, -913, and related statutes were unconstitutional.  The Arizona Secretary of State and the MCAO appealed.

The Court of Appeals vacated in part and reversed in part.  The court rejected CJF’s argument that because the advertisement did not specifically refer to Horne as a candidate and did not “mention any other candidate, election, or political party,” it was just an issue-oriented ad to which Arizona’s campaign finance statutes did not apply.  Even though the ad did not specifically refer to Horne as a candidate for Attorney General, a person is a “[c]learly identified candidate” within the meaning of A.R.S. § 16-901(4) if “a photograph or a drawing of the candidate appears” in the ad or if “the identity of the candidate is otherwise apparent by unambiguous reference,” and Horne had been identified in the ad “through his name, photographs, and his prior and then-current public offices,” and the general populace was also already aware of his candidacy for Attorney General.  Quoting the Administrative Law Judge’s opinion, the court held that the ad was express advocacy because “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 . . . was to advocate his defeat as candidate for Attorney General.”  The court, therefore, concluded that CJF’s ad was “express advocacy” as defined in A.R.S. § 16-901.01(A)(2)(a) and that it, therefore, qualified as “an independent expenditure designed to influence the 2010 Attorney General election.”  Accordingly, the CJF was a political committee that had to register and make disclosures in compliance with the relevant statutes.  The court also concluded that A.R.S. § 16-901.01(A)(2)(a) and Arizona’s related registration and disclosure requirements were constitutional.  The proper standard of review of the statutes was the “less stringent ‘exacting scrutiny’ standard” because the relevant statutes involved only disclosure requirements and not restrictions on speech.  The court held that the statutes were not impermissibly overbroad or vague and that facially and as applied, the disclosure requirements did not have an unconstitutionally impermissible chilling effect.  Furthermore, the registration requirement’s purpose of ensuring disclosure was permissible because it was “substantially related to a sufficiently important governmental interest.”

Judge Winthrop authored the opinion.  Judges Orozco and Jones concurred.