10th Circuit Urged to Uphold Colorado Disclosure Provisions


Today, the Campaign Legal Center, joined by Democracy 21 and Public Citizen, filed an amici brief in Independence Institute v. Gessler urging the Tenth Circuit Court of Appeals to affirm a District Court ruling upholding the Colorado Constitution’s “electioneering communications” disclosure provisions.  The state law is materially identical to the federal “electioneering communications” disclosure statute, which was upheld by the U.S. Supreme Court as recently as the 2010 Citizens United decision.  Plaintiff’s challenge to the federal statute (Independence Institute v. Federal Election Commission) was dismissed by the U.S. District Court for the District of Columbia on October 6, 2014, sixteen days before the challenge to the Colorado law was dismissed by the U.S. District Court for the District of Colorado.  The Campaign Legal Center filed amici briefs in both cases.

“From the challenge in Buckley v. Valeo to the Watergate reforms right through to the Roberts Court’s ruling in Citizens United, the U.S. Supreme Court has been unbending in its support for disclosure and in its recognition that the public has a vital interest in knowing the identities of those who are trying to influence their votes,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “The Independence Institute is asking the court to ignore Supreme Court precedent so that it and others can blanket the airwaves with ‘dark money’ ads in the final weeks before elections without ever revealing the interests bankrolling those ads.  Sadly, this case is just one of many similar challenges to disclosure laws nationwide, but fortunately the courts have been steadfast in upholding these laws.”

Independence Institute wished to run a broadcast ad referring to Governor John Hickenlooper (D-CO) shortly before Election Day without disclosing its donors.  The challenged law requires donor disclosure when groups spend more than $1,000 on “electioneering communications”—defined as certain television, radio and print ads that mention the name of a state candidate within 60 days of a general election or 30 days of a primary election. 

The U.S. Congress enacted the federal “electioneering communications” disclosure law, which is also being challenged by Independence Institute in a different case, to curb widespread evasion of earlier disclosure requirements that applied only to “express advocacy” ads.  Since then, the Supreme Court has twice upheld this law: first in McConnell v. FEC (2003) in a facial challenge, and again in Citizens United v. FEC (2010) in an as-applied challenge.

To read the amici brief filed today by the Campaign Legal Center, Democracy 21 and Public Citizen, click here

To read the U.S. District Court for the District of Colorado’s order and final judgment, click here and here.

To read the U.S. District Court for the District of Columbia order dismissing the challenge to the federal statute, click here.