District Court Urged to Reject Challenge to Colorado Disclosure Provisions for Electioneering Communications

Today, the Campaign Legal Center, joined by Democracy 21 and Public Citizen, filed an amici brief in Independence Institute v. Gessler, urging the U.S. District Court for the District of Colorado to dismiss a challenge to 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 recently filed a suit challenging that federal statute as well.

“The Supreme Court has been very clear in supporting exactly this type of disclosure and in recognizing the vital public interest in informing voters as to whom is trying to influence their vote,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “Even under Chief Justice Roberts, the Court in Citizens United voted by an 8-1 margin to uphold a nearly identical federal statute, yet plaintiffs are asking this Colorado court to disregard that clear precedent and strike down its state’s law.  This case is just the latest in a wave of challenges to disclosure laws across the country as ‘dark money’ groups seek to hide the identities of their donors while running ads to influence election outcomes on the federal, state and local level.”

Plaintiff wishes 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 the plaintiff 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.

To read the brief, click here.