District Court Rejects Challenge to Colorado Disclosure Provisions for Electioneering Communications

Today, in Independence Institute v. Gessler, the U.S. District Court for the District of Colorado dismissed a challenge to the “electioneering communications” disclosure provisions enshrined in Colorado’s state constitution.  The state measure is materially indistinguishable from the federal “electioneering communications” disclosure statute which was upheld by the U.S. Supreme Court as recently as the 2010 Citizens United decision.  On September 25, the Campaign Legal Center, joined by Democracy 21 and Public Citizen, filed an amici brief to defend Colorado’s law.

“Independence Institute asked the court to ignore Supreme Court precedent and permit it to conceal the ‘dark money’ donors underwriting its ad campaign on the eve of an election,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “The Supreme Court, by overwhelming 8-1 margins, has twice upheld a federal disclosure law nearly identical to Colorado’s.  We are pleased Judge Jackson acted quickly and decisively in rejecting this outrageous suit, which is just one of a flood of legal challenges to disclosure laws across the country.”

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.

The Legal Center was assisted in the filing of the amici brief by Steven K. Imig of Lewis, Bess, Williams & Weese P.C.

Click to read the court’s order and final judgment.

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