August 22, 2019

Colorado Court of Appeals: Political Party Can Establish Expenditure Committee Not Subject to Contribution Limits

The Colorado Court of Appeals issued its opinion in Colorado Republican Party v. Williams on Thursday, February 25, 2016.

Independent Expenditure Committee—Political Party—Contributions—Constitutional Limits—Campaign and Political Finance Amendment—Fair Campaign Practices Act.

The Colorado Republican Party (Party) is a Colorado unincorporated nonprofit association. The Party created an Independent Expenditure Committee (IEC) to make independent expenditures and raise funds through donations and otherwise in any amount from any permissible source to fund that committee. The Party filed the current lawsuit seeking declaratory relief to confirm its actions. The district court granted summary judgment, concluding that the current constitutional and statutory scheme allows a political party to create an IEC and that such a committee is not subject to any contribution limits applicable to political parties under the Campaign and Political Finance Amendment and the Fair Campaign Practices Act.

On appeal, intervenor Colorado Ethics Watch, a nonprofit organization authorized to do business in Colorado, contended that the district court erred when it interpreted the Fair Campaign Practices Act to allow a political party to establish an IEC not subject to the source and contribution limits set forth in the Colorado Constitution, article XXVIII (the Campaign and Political Finance Amendment) and CRS §§ 1-45-101 to -118 (the Fair Campaign Practices Act). The current legislative scheme and pertinent case law, however, provide no barrier to the Party’s establishment of the IEC.

Ethics Watch also asked the Court of Appeals to conclude as a matter of law, based on federal precedent, that any IEC established by a political party is per se incapable of independence in that it is always controlled by or coordinated with the party, therefore subjecting the committee to source and contribution limits. The Court declined to “read an exception to the law that is not there.”

The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Video: Campaign Finance and SB 203: “Is this genie out of the bottle now?”

Leave it to the U.S. Supreme Court to make campaign finance law “hot.” Today it was just that during a lunchtime panel in our classroom, which included Senator Morgan Carroll, Secretary Bernie Buescher, Scott Gessler, Martha Tierney and Richard Westfall. In 90 minutes, the panel discussed the intent, implementation and implications of SB 203, Colorado’s response to the Citizens United case that came out earlier this year.

Richard Westfall
, video excerpt below, spoke last and used some of his time to make general observations about what we heard from the panel.

He complimented the bill’s sponsor, Senator Carroll, noting that she has a ““very deep understanding of the nuances… of campaign finance law.”

He also pointed out that the panel might be able to boast at least one “first,” referring to the joint appearance of Secretary Buescher and Scott Gessler, who are both vying for the Secretary of State position in this year’s election:

I don’t recall ever, in my couple of decades of being involved in the political process, ever being on a panel where two candidates for the same office spoke—and spoke eloquently. With, again, deep understanding and deep sensitivity to what they’re doing. I think this is a first in Colorado history…
And, finally, he laid out the debate we watched, which he characterized as a “very deep substantive debate on, ‘Is this genie out of the bottle now?,'” or, more specifically, a debate over:
[w]hether or not political parties—like this Logan County filing that supposedly we have—can also create a separate, standalone Independent Expenditure Committee and get out from underneath the…  “source and contribution limits.”… And say, this is a separately regulated thing, and it’s called an Independent Expenditure Committee, and all these regulations that relate to political parties, including limitations on corporate contributions—they don’t apply anymore.
This program will soon be available by  MP3 and online video.
Watch more below:

July 9 Program: Key Players to Talk About Colorado Legislature’s Response to Citizens United

In direct response to the U.S. Supreme Court’s controversial holding in Citizens United v. Federal Election Commission earlier this year, the Colorado legislature carried and Governor Ritter signed into law SB 203SB 203 requires corporations and labor unions to register their election campaign donations with an independent agency, showing both the donor and the amount of the donation.

With mid-term elections swinging into full gear, how will this bill be implemented by the Secretary of State’s office? What was its intent? And what impact can we expect it to have on the 2010 elections and beyond?

Get answers to these questions and more at a lunchtime short program on Friday, July 9, when CBA CLE brings together all of the key players — from the legislator who sponsored the bill to the Secretary of State whose office is tasked with implementing it, along with Colorado’s go-to experts on election and campaign finance laws at Citizens United and SB 203: What’s in Store for Campaign Financing in Colorado’s Mid-Term Elections. The panel features:

  • Secretary Bernie Buescher was sworn in as Secretary of State on January 14, 2009. His office is responsible for implementing SB 203. Prior to his current position, he served two terms in the Colorado House of Representatives. At the legislature, he was appointed to the Joint Budget Committee, where he worked on behalf of Colorado to find innovative, bipartisan solutions to the difficult issues facing the state. He served as chair of the Budget Committee in 2006 and 2008, and as chair of the Appropriations Committee in 2007 and 2008.
  • Senator Morgan Carroll represents Colorado Senate District 29 and was a sponsor of SB 203. She serves as chair of Senate Judiciary and is a member of Senate Health and Human Services Committee, the Legislative Audit Committee, and the Legal Services Committee. She was appointed as a commissioner to the National Commission on Uniform Laws, and was recently appointed chair of the Interim Committee on Pinnacol Assurance. Prior to joining the Senate, she served in the Colorado House from 2005 to 2008, and acted as Majority Caucus Chair and vice-chair of the Judiciary Committee, and served on the Business Affairs and Labor committees.
  • Scott Gessler focuses his legal practice on concentrates on election law, constitutional law, public policy litigation, campaign finance, non-profit tax law, regulatory advocacy, and commercial litigation. He was appointed to and served on the Colorado Election Reform Commission. He is currently running against incumbent Secretary Buescher to serve as Colorado’s Secretary of State.
  • Martha Tierney specializes in specializes in election law, civil rights law, family law, and commercial litigation, including contractual, construction, and media disputes. She is a member of the Common Cause National Governing Board and a member of the Colorado Common Cause Board of Directors.
  • Richard A. Westfall is a partner at Hale Westfall in Denver. He is a member of the Colorado Lawyers Committee’s Elections Task Force, treasurer of the Colorado Republican Party, and member of the Secretary of State’s Campaign, Finance and Lobbyists Advisory Panel. He is also a contributor to the Rocky Mountain Appellate Blog.

Register today for this timely and important program. The presentation will also be available as a live webcast, an mp3 download, and video on demand for those unable to attend in person, and has been submitted for two general CLE credits.

Click here for Legal Connection’s previous coverage of SB 10-203.

Legislation: Ritter Closes Citizens United Loopholes by Enacting SB 10-203 Election Law Reform

On Tuesday, Governor Bill Ritter signed SB 10-203 (.pdf), a Democratic-sponsored bill that will help cinch closed any loopholes in state campaign finance laws that opened as a result of the United States Supreme Court’s controversial ruling in Citizens United v. Federal Election Commission (.pdf) in January of this year.

The bill, sponsored by Sen. Morgan Carroll, D-Aurora; Rep. Paul Weissmann, D-Boulder; and Rep. Karen Middleton, D-Aurora, requires corporations and labor unions to register their election campaign donations with an independent agency, showing both the donor and the amount of the donation. Said Sen. Morgan at yesterday’s signing:

American Democracy is built on a foundation of fair and free elections. To ensure fair and free elections, Colorado voters have consistently voted for transparency and accountability in the election process. We are protecting that legacy by holding corporations and unions to the same standards of accountability and transparency as we do for individuals.

With its Citizens United decision, the nation’s high court overturned a century-old position barring direct corporate advocacy of candidates running for political office, and gave corporations and unions the green light to purchase political ads in the 60-day run-up to elections. The decision quickly touched off a firestorm of criticism and controversy.

Of the state bill’s enactment, Colorado Secretary of State Bernie Buescher remarked, “Colorado has a strong commitment to transparency for political spending and Senate Bill 203 attempts to capture how those dollars are used to support and oppose candidates in the wake of the Supreme Court’s decision.”

Secretary Buescher was CBA CLE’s guest speaker at an expert panel discussion shortly after Citizens United was announced, at which he and fellow election law experts Ed Ramey, Martha Tierney, Richard Westfall, and Maurie Knaizer analyzed the constitutional ramifications of the SCOTUS opinion and reporting and compliance issues it was likely to raise.

To read Legal Connection’s previous coverage of legislative and case law developments following the Citizens United decision, see here.

Legislation: Federal, State Lawmakers Prepare Citizens United Bill Challenges

In response to the SCOTUS decision in Citizens United v. Federal Election Commission (.pdf), lawmakers at both the federal and state levels are proposing legislation that places limits on election campaign donations made by corporations and labor unions.

Later this week, Rep. Chris Van Hollen (D-MD) and Sen. Charles Schumer (D-NY) are expected to introduce two bills before the U.S. Congress to impose limitations on corporate spending during elections. According to the National Law Journal‘s Marcia Coyle, the two congressional bills will:

  • Require the head of a corporation, union, section 501(c)(4), (5), or (6) organization, or section 527 organization to say he or she “approves this message” in any campaign ad and the top contributor to “stand by” the ad.
  • Ban coordination between a candidate and outside groups on ads that reference a candidate and then run in the time period beginning 90 days before a primary and ending with the general election.
  • Require any covered organization to disclose within 24 hours to the FEC not just its campaign-related activity, but also transfers of money to other groups that then can be used for campaign-related activity. Additionally, a covered organization must disclose its donors.
  • Prohibit corporations controlled by foreign entities or foreign nationals from spending in U.S. elections.
  • Mandate disclosure by corporations, unions, and other groups to their shareholders and members in their annual and periodic reports.
  • Prohibit federal government contractors with a contract worth more than $50,000 from spending money on elections.

In local developments, Colorado State Sen. Morgan Carroll (D-Aurora) and House Majority Leader Paul Weissmann (D-Louisville) have co-sponsored SB 10-203, an end-of-session bill that would require corporations and labor unions to register their election campaign donations with an independent agency, showing both the donor and the amount of the donation. This morning’s Denver Post has the details.

Colorado’s 2010 legislative session ends May 12. If enacted, SB 10-203 would take effect before this fall’s election cycle begins.

For other Citizens United coverage on CBA-CLE Legal Connection, see here, here, and here.

Case Law: First Post-Citizens United Case Decided

If you were wondering how the first case following the landmark decision in Citizens United v. Federal Election Commission would shake out, wonder no more.

Just nine weeks after United States Supreme Court opened the field for political advertising directly funded by corporations and labor unions, the D.C. Circuit Court of Appeals has decided, en bancSpeechNow.org v. Federal Election Commission, the first case in Citizens United‘s wake.

At issue was whether SpeechNow.org, a 527 organization formed for the political advocacy of free speech (particularly free speech by way of campaign spending), was subject to the campaign contribution limits of a “policital committee” and whether such limits violate the First Amendment. Following the lead of the high court in Citizens United, the D.C. Circuit court found the spending limits unconstitutional. The donation reporting requirements remain unchanged by the court ruling.

See here for a comprehensive wrapup of SpeechNow.org — and, of course, keep your eyes on CBA-CLE Legal Connection for more Citizens United developments, coast to coast, as they happen.

Update: Citizens United Action Wrap-up

And so begins the campaign finance fallout from the recent SCOTUS decision in Citizens United v. Federal Elections Commission.

Responding to interrogatories submitted by Governor Bill Ritter, the Colorado Supreme Court on Monday issued an opinion elucidating the interplay between Citizens United and the Colorado Constitution.

The court found that the two contested articles of the state constitution, Sections 3(4) and 6(2) of Article XXVIII, violate the First Amendment under Citizens United:

… to the extent that Colo. Const. art. XXVIII, § 3(4) makes it unlawful for a corporation or labor organization to make expenditures expressly advocating the election or defeat of a candidate, it violates the dictates of the First Amendment of the U.S. Constitution. Similarly, it held that to the extent that Colo. Const. art. XXVIII, § 6(2) makes it unlawful for a corporation or a labor organization to provide funding for an electioneering communication, it violates the dictates of the First Amendment of the U.S. Constitution.

In another local development, a Denver Post article reports that several members of the Colorado legislature hope to close current and potential disclosure loopholes in post-Citizens United campaign finance before the 2010 election cycle.

In more related news, the Texas Tribune this week reported the first-known appearance of a corporate-funded political ad in the wake of Citizens United. Incumbent state representative Chuck Hopson (R-Jacksonville) was the target of an adversarial political ad appearing in East Texas newspapers in the leadup to a recent Republican primary for Hopson’s legislative seat. While the move is an early test of Citizens United, the ads themselves seemed to play little or no part in the primary outcome: Hopson bested his fellow Republican opponents by 61 percent. Hopson’s GOP credibility came under fire last November when he jumped the Democratic ship and became a Republican while in still office. He is running for re-election on the GOP ticket, to the apparent chagrin of some Republicans, who view the ex-Democratic legislator and his newly minted GOP credentials with suspicion.

With its Citizens United decision, the nation’s high court overturned a century-old position barring direct corporate advocacy of candidates running for political office, and gave corporations and unions the green light to purchase political ads in the 60-day run-up to elections.

Video: Bernie Buescher on Effect of Citizens United

During the Citizens United panel presentation we recently held in our classroom, we had a surprise visit from Colorado Secretary of State Bernie Buescher (video below). If you missed the program, you can order it now on-demand or as an MP3 download.

CLE: Citizens United v. Federal Election Commission

Last week’s Supreme Court decision has created a firestorm of new questions. What does the opinion say? How will it affect state constitutional provisions? What new reporting and compliance issues will it raise?

Join panelists Ed Ramey, Isaacson Rosenbaum P.C.; Martha Tierney, Kelly Garnsey Hubbell & Lass LLC; Richard Westfall, Hale Friesen LLP; and Maurie Knaizer, State Services Section, Colorado Attorney General’s Office, for a discussion of these issues.

Date: February 2, 2010

Time: Noon – 1pm

Formats: Live, Webcast