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Why Idaho May Win And Lose Fight To Uncover Donors To Education Proposition Campaign

Anthony Johnstone
University of Montana

Idaho’s Secretary of State wants a court to order a group campaigning for Idaho’s ballot referenda to reveal its donors.

Education Voters of Idaho gave more than $200,000 to another, affiliated group for ads supporting propositions 1, 2, and 3. Those ask voters if they want to keep Idaho’s Students Come First education laws. Education Voters refused an ultimatum from Secretary of State Ben Ysursa to reveal its donors. Ysursa maintains Idaho’s Sunshine Law says Education Voters has to disclose. Education Voters insists the First Amendment and the Supreme Court decision Citizens United says it doesn’t.

Anthony Johnstone has some experience with state election law vs. Citizens United. As Montana’s state solicitor he worked on a case that went to the Supreme Court.

“Citizens United says in general, disclosure by political committees including disclosure of their funding sources, does not violate the First Amendment,” Johnstone says. “States have the power to require organizations that spend money in political campaigns to tell the voters where their money comes from.”

Johnstone, who now teaches law at the University of Montana, says there doesn’t appear to be much of an argument for why Education Voters of Idaho should not disclose. He says it’s different for the Idaho Education Association which has also spent heavily in the proposition campaign. The Secretary of State has asked the teachers union to release it donors as well. Johnstone says the High Court ruling isn’t entirely clear on this yet, but unions probably don’t have to disclose. The IEA has come to that conclusion as well. Wednesday it sent the state a list of reasons it should not be considered a political committee bound by the state’s Sunshine Law.

Friday Judge Deborah Bail will hear arguments on Secretary Ysursa’s request for a court order to get Education Voters donor list. Johnstone says even though the law seems to be with him, it doesn’t mean Ysursa will get what he truly wants: pre-election disclosure.

“I have seen more cases in which a political committee fights disclosure and then does not disclose until the proceedings play out as many as four years later, than I have seen cases where a court requires that disclosure in time for the election in which that campaign activity is taking place,” he says.

Johnstone says it’s up to the judge how to proceed. Bail will likely not make a decision at Friday’s hearing.