In Brief – As part of Colorado’s comprehensive campaign finance regulation, the state requires organizations with a major purpose of supporting or opposing a ballot issue to register with the state and file periodic reports disclosing contributions received and expenditures made by the committee.
Question Presented – Did the District Court err in concluding that Colorado’s registration and disclosure requirements for ballot issue committees did not violate the First Amendment because they served a legitimate state interest?
Procedural History – On September 18, 2008, the United States District Court for the District of Colorado rejected Plaintiffs’ claim that Colorado’s registration and reporting requirements for ballot issue committees violated the First Amendment. On February 19, 2009, Appellants filed their appeal of this decision with the Tenth Circuit Court of Appeals. The Center for Competitive Politics, the Independence Institute, the National Taxpayers Union and the Sam Adams Alliance filed an amicus brief in support of Appellants urging reversal in part and affirmance in part on February 27, 2009. Appellee Colorado Secretary of State Bernie Buescher filed his Principal and Response brief on April 24, 2009. The Brennan Center filed our brief amicus curiae in support of Appellee on May 5, 2009.
Summary of the Case
Appellant, a group of individual residents who joined together to oppose an annexation election, challenge Colorado’s reporting and registration requirements for ballot issue committees. Douglas County, Colorado conducted an annexation election via the ballot issue process. Appellants spoke publically and circulated fact sheets and postcards opposing the annexation. Appellants’ activities and the expenditures brought them within the state’s definition of a ballot issue committee; however, they did not register and report the ballot issue committee in accordance with Colorado law. As a result, a private enforcement action was brought against them and settled.
Shortly thereafter, Appellants filed suit in Federal District Court raising a facial and an as applied challenge to the reporting and registration requirements. Appellants and their supporting amici argue that the disclosure requirements burden First Amendment activity and that such burden is not justified by any state interest. In particular, they argue that since ballot issue committees directly advocate for ballot issues, and not candidates, disclosure provisions related to these committees are not justified by an anti-corruption interest.
Amicus Brief Summary
The amicus brief filed by the Brennan Center explained to the Court that there is indeed an anti-corruption interest that is served by Colorado’s reporting and registration requirements for ballot issue committees. Drawing on examples from Colorado’s candidate elections, recall elections and retention elections, the Brennan Center demonstrated that candidates are heavily invested in the success or defeat of a variety of ballot issues and candidates have used ballot issue committees to further their own candidacies. The brief also explained that the Supreme Court’s decisions in Citizens Against Rent Control v. City of Berkeley and First National Bank of Boston v. Bellotti created an asymmetrical regime of contribution limits between candidate committees and ballot issue committees. As a result of both candidate involvement with the ballot issue process and the asymmetrical contribution limits between ballot issue committees and candidate committees, large donors and candidates have used ballot issue committees as a conduit to circumvent candidate contribution limits.
As such, the state’s interest in preventing and detecting this circumvention is a compelling anti-corruption state interest. The Supreme Court’s opinion in McConnell v. FEC extended an unbroken line of Supreme Court cases holding that laws that prevent the circumvention of candidate contribution limits are justified by the state’s anti-corruption interest. Since the registration and reporting requirements are the only way for the State of Colorado to detect and deter the use of issue committees as conduits for the circumvention of candidate committees the requirements are justified by an anti-corruption rationale.
Related Court Documents
Brennan Center Amicus Brief (5/5/09)
Secretary’s Response to Plaintiff’s Motion (4/24/09)
Center for Competitive Politics, et al., Amicus Brief Supporting Plaintiff (2/27/09)
Appellants’ Opening Brief (2/19/09)