Tenth Circuit Rejects Challenge to Colorado Disclosure Provisions for Electioneering Communications


Today, in Independence Institute v. Williams, the U.S. Court of Appeals for the Tenth Circuit dismissed a challenge to the “electioneering communications” disclosure provisions enshrined in Colorado’s state constitution, affirming a federal district court decision upholding the law. The Campaign Legal Center, joined by Democracy 21 and Public Citizen, filed an amici brief with the Tenth Circuit to defend Colorado’s law on March 4, 2015, and also filed an amici brief with the lower court in 2014. The state measure is materially indistinguishable from the federal “electioneering communications” disclosure statute, which the U.S. Supreme Court upheld as recently as 2010 in its Citizens United decision.

“This ruling marks another resounding victory for disclosure against a nationwide flood of challenges to laws that require the reporting of nothing more than the identity of those spending significant sums on candidate-focused ads shortly before elections. 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 Deputy Executive Director. “But the Supreme Court, by overwhelming 8-to-1 margins, has twice upheld a federal disclosure law nearly identical to Colorado’s. We are pleased the Tenth Circuit recognized Coloradoans’ vital interest in knowing the identities of those who seek to influence them shortly before elections and rejected this brazen attempt to re-litigate binding Supreme Court precedent.”

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 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. Independence Institute’s parallel challenge to the federal law (Independence Institute v. Federal Election Commission) was rejected by the U.S. District Court for the District of Columbia on October 6, 2014, and is currently on appeal before the D.C. Circuit. The Campaign Legal Center filed amici briefs in both stages of the federal case.

To read the opinion, click here.

To read the Legal Center’s Tenth Circuit brief in the case, click here.