Case 1:14-cv-02850-CMA-KLM Document 28 Filed 11/28/14 USDC Colorado Page 1 of 29

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02850-CMA-KLM
ROCKY MOUNTAIN GUN OWNERS, a Colorado non-profit corporation, and
COLORADO CAMPAIGN FOR LIFE, a Colorado non-profit corporation,
Plaintiffs,
v.
SCOTT GESSLER, in his official capacity as Secretary for the State of Colorado, and
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, a Delaware nonprofit corporation, trading as Colorado Ethics Watch,
Defendants.
SECRETARY OF STATE'S RESPONSE IN OPPOSITION TO PLAINTIFFS' MOTION
FOR PRELIMINARY INJUNCTION
Defendant Scott Gessler, in his official capacity as Colorado Secretary of State,
opposes Plaintiffs Rocky Mountain Gun Owners (RMGO) and Colorado Campaign for
Lifes (CCFL) Motion for Preliminary Injunction (Doc. # 24). As discussed below, the
Motion should be denied because Plaintiffs fail to meet each of the preliminary
injunction factors.
INTRODUCTION
Plaintiffs, pro-gun rights and pro-life grassroots lobbying organizations, seek to
undo Colorados narrowly-tailored elections communications disclosure regulations by
claiming that their mailings to Republican voters just days before the June 2014 primary
election are simply issue ads, which Colorado is unconstitutionally subjecting to
disclosure requirements. Plaintiffs ads are not issue ads; they extend well beyond a

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discussion of policy issues and unquestionably appeal to voters to elect pro-gun rights
and pro-life candidates. Nevertheless, per Supreme Court precedent, Colorados
disclosure regulations for issue ads are constitutional. Additionally, Colorados
disclosure laws are hardly burdensome; based on the alleged facts, RMGO should have
filed two electioneering reports and CCFL should have filed one report. Plaintiffs
demand preliminary injunctive relief, barring enforcement of Colorados disclosure laws;
however, they fail to make any showing much less the requisite strong showing that
they are substantially likely to prevail on the merits. The undisputed facts are
unequivocal and do not support Plaintiffs request for extraordinary relief. Moreover,
Plaintiffs inappropriately seek this Courts intervention in a matter that can be fully
resolved in currently pending state judicial proceedings.
BACKGROUND
RMGO and CCFL are non-profit organizations that, by their own admission,
engaged in electioneering communications in the weeks leading to Colorados 2014
primary and general elections. In the Complaint, RMGO identifies itself as Colorados
largest state-based Second Amendment grassroots lobbying organization, with a
mission of defend[ing] Coloradans Second Amendment right to keep and bear arms
from all [their] enemies, and advanc[ing] those God-given rights by educating
[Coloradans] and urging them to take action in the public policy process. Doc. # 1 at
12, 13 (internal quotations omitted). It is also a membership organization. See RMGO
membership page, available at: https://www.rmgo.org/get-involved/join (last visited on
Nov. 19, 2014).
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CCFL identifies itself as a Colorado based and focused grassroots pro-life

lobbying organization, with a mission of promot[ing] the passing of pro-life legislation .
. ., lobby[ing] political candidates to support such public policy positions, and informing
[Coloradans] on the pro-life public policy positions of political candidates. Id. at 1517. Plaintiffs state that they engage in issue-driven speech to inform Coloradans about
the public policy positions of political candidates on the Second Amendment (RMGO)
and abortion (CCFL). Doc. # 24 at 3.
In the weeks leading to the June 24, 2014 primary election, Plaintiffs sent mass
mailings to Republican voters in Colorado Senate Districts 19 and 22, which
unambiguously referred to candidates for office in Colorado and identified the
candidates positions or track-records on gun-rights or pro-life issues. See Complaint,
Exs. A-C, Doc. # 1-1, at 2-11. RMGOs single mass mailing, which was sent within two
weeks of the primary, highlighted candidates Mario Nicolaiss and Tony Sanchezs
respective anti-gun and pro-gun stances, expressly urged pro-gun rights voters to
contact Mr. Nicolais and demand that he change his anti-gun stance, and implicitly
urged people to vote for Mr. Sanchez, the pro-gun rights candidate. Doc. # 1, at 32;
Doc. # 1-1 at 8-11. In RMGOs appeal for votes for Mr. Sanchez, the letter contained
the following statements:

You see, 2014 represents a tipping point in our states history, and
regular folks like you will determine which path Colorado takes. Thats
why its vital that gun owners know where every candidate for office
stands. Doc. # 1-1, at 8.

Sanchez is an RMGO member and has a track record of being a vocal

supporter of gun rights. Sanchez even temporarily suspended his
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campaign to volunteer his time to help Rocky Mountain Gun Owners

recall three anti-gun Democrats. Id. at 9 (emphasis omitted).

Nicolais wont answer [RMGOs] questions, which should make any gun
owner skeptical. Id. (emphasis omitted).

With all thats at stake this election year and with the Republican
caucuses fast approaching, its crucial that freedom-loving citizens in
Jefferson County know exactly where their candidates stand on the
Second Amendment. Id. at 10.

Similarly, just days before the primary election, CCFL sent two mass mailings to
Republican voters in Senate Districts 19 and 22 to inform them about the pro-life
positions of political candidates. Doc. # 1 at 30-31; Doc. # 1-1 at 2-6. Specifically,
CCFL highlighted the respective pro-choice and pro-life stances of Senate District 19
candidates Lang Sias and Laura Woods and Senate District 22 candidates Mario
Nicolais and Tony Sanchez, expressly urged voters to contact Sias or Nicolais and
[a]sk why he wont publically stand to defend the unborn, noted that Ms. Woods and
Mr. Sanchez are publically committed to defending the rights of the unborn by
answering [CCFLs] Survey 100% Pro-Life, and called like-minded Republican voters to
vote [their] values. Doc. # 1-1 at 2-6.
In this action, Plaintiffs attack Colorados disclosure requirements in the following
ways: (1) Colorados definition of electioneering communication is facially overbroad
and, therefore, violates the First and Fourteenth Amendments; (2) Colorados $1,000
reporting trigger is too low and, therefore, violates the First and Fourteenth
Amendments; (3) Colorados private enforcement scheme for alleged campaign finance
violations has a chilling effect on First Amendment freedoms; and (4) the reporting and
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disclosure requirements violate the free speech guarantees of Article II, Section 10 of
the Colorado Constitution. In their motion, Plaintiffs ask this Court to preliminarily enjoin
enforcement of any provision of Colorado law that relies upon the electioneering
communication definition. Doc. # 24 at 15.
STATUTORY AND LEGAL FRAMEWORK
Colorados disclosure and reporting requirements for electioneering
communication-related contributions and expenditures, which have been in place for
more than a decade and represent the status quo in this case, are contained in Article
XXVIII of Colorados constitution (Amendment 27) and Colorados Fair Campaign
Practices Act (FCPA), Colo. Rev. Stat. 1-45-101, et seq. Both RMGO and CCFL
concede, and the Secretary agrees, that their pre-election mass mailings fall within
Colorados electioneering communications definition. The pertinent provisions are
summarized in Appendix A, attached, and they demonstrate that Colorados
electioneering communications definition is not as broad as Plaintiffs claim.
STANDARD OF REVIEW AND BURDEN OF PROOF
I.

Standard of review for preliminary injunction motion

The following four well-known factors that Plaintiffs must establish in order to
obtain a preliminary injunction are: (1) a substantial likelihood that the movant will
eventually prevail on the merits; (2) a showing that the movant will suffer irreparable
injury unless the injunction issues; (3) proof that the threatened injury to the movant
outweighs whatever damage the proposed injunction may cause the opposing party;
and (4) a showing that the injunction, if issued, would not be adverse to the public
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interest. Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980). Because preliminary
injunctions are intended to preserve the status quo, Plaintiffs request, which will alter
the status quo, i.e., the enforcement of Colorados disclosure laws, is disfavored. See
Schrier v. Univ. of Colo., 427 F.3d 1253, 1259 (10th Cir. 2005). Therefore, they must
make a strong showing both with regard to the likelihood of success on the merits and
with regard to the balance of harms[.] Id. (emphasis added). Based upon the agreedupon facts, Plaintiffs have fallen entirely short of meeting this burden.
II.

Burdens of proof applicable to Plaintiffs as-applied and facial

challenges.

RMGO and CCFL raise both as-applied and facial challenges to Colorados
electioneering communications disclosure scheme. See, e.g., Doc. # 1, at 5, 60. In
an as-applied challenge to a law that might infringe on the exercise of First Amendment
rights, the proponent of the law (i.e., the government) bears the burden of establishing
its constitutionality. Colo. Right to Life Comm., 498 F.3d 1137, 1146 n.7 (10th Cir.
2007). [A]n as-applied challenge tests the application [of a law] to the facts of a
plaintiffs concrete case. Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1196 (10th
Cir. 2005).
In contrast, because a facial constitutional challenge broadly seeks to invalidate
a statute or regulation itself, a plaintiff must at least show that the challenged law is
invalid in the vast majority of its applications, Hernandez-Carrera v. Carlson, 547 F.3d
1237, 1256 (10th Cir. 2008), if not show that no set of circumstances exists under

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which the [challenged law] would be valid, Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 (2008).

ARGUMENT
I.

This Court should abstain from hearing the constitutional

claims because Plaintiffs have an adequate opportunity to
raise those claims in a currently pending state judicial
proceeding.

At the outset, the Court need not consider Plaintiffs preliminary injunction
request because abstention is warranted under Younger v. Harris, 401 U.S. 37 (1971).
Abstention is warranted in this case, even though the Supreme Court recently reiterated
that Younger abstention is only justified in three exceptional circumstances, including
ongoing civil enforcement proceedings, particularly those that the state, after
conducting an investigation, initiated to sanction the federal plaintiff . . . for some
wrongful act. Sprint Commcns v. Jacobs, 134 S. Ct. 584, 591-92 (2013).
Here, as alleged in the Complaint, civil enforcement proceedings have
commenced against Plaintiffs, as a result of their failure to comply with Colorados
reporting and disclosure requirements. Doc. # 1, at 35-45. Specifically, Defendant
Colorado Ethics Watch commenced a private enforcement action, pursuant to Article
XXVII, Section 9(2)(a) of Colorados Constitution, which allows any person who
believes that a violation of Colorados electioneering communications-related
disclosure requirements has occurred may file a complaint with the secretary of state,
who shall, in turn, refer the complaint to an administrative law judge within three days
of the filing of the complaint.
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Though Ethics Watch, not the State, commenced the underlying enforcement
proceeding, it is akin to a qui tam action under common law, which is brought by a
private citizen, on that individuals, as well as the States, behalf for violation of a civil or
criminal statute. See BLACKS LAW DICTIONARY 578 (2d pocket ed. 2001). Courts have
long recognized qui tam suits as legitimate tools for enforcing the law. See Trevor W.
Morrison, Private Attorneys General and the First Amendment, 103 Mich. L. Rev. 589,
598-601 (2005) (reasoning that the history of qui tam actions confirms that legislative
reliance on uninjured private parties to enforce public-regarding statutes is no recent
innovation); Osterberg v. Peca, 12 S.W.3d 31, 48-50 (Tex. 2000) (reasoning that
private enforcement of campaign finance laws is designed to deter violators and
encourage enforcement by those involved in the process instead of placing the entire
enforcement burden on the government). Therefore, the underlying civil enforcement
proceedings falls squarely into one of the Supreme Courts recently reiterated
exceptional circumstances.
Moreover, Plaintiffs have an adequate opportunity to assert their constitutional
claims in the pending enforcement proceedings. See Leatherwood v. Whetsel, 537 F.
Appx 794, 796 (10th Cir. 2013) (affirming lower courts abstention, because the plaintiff
could have, but failed, to assert his constitutional claims in state court proceedings); see
also Deatley v. Keybank Natl Assn, No. 12-cv-02973, 2013 U.S. Dist. LEXIS 120235,
at *12 (D. Colo. Aug. 23, 2013) (unpublished) (noting that the abstention doctrine
applies to equitable relief claims). Although administrative law judges do not have
authority to consider facial constitutional challenges, a party is free to first raise those
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constitutional questions on appeal of the administrative law judges decision. See

Cerbo v. Protect Colo. Jobs, Inc., 240 P.3d 495, 504 (Colo. App. 2010). As-applied
constitutional challenges, however, may be raised in the administrative proceedings.
See Horrell v. Dept of Admin., 861 P.2d 1194, 1198 n.4 (Colo. 1993) (noting the State
Personnel Boards authority to consider the possibly unconstitutional application of a
state statute to a particular personnel action).
Because Plaintiffs have an adequate opportunity to assert their constitutional
claims in the underlying proceedings, their present appeal to this Court for a declaration
of the Colorados disclosure and reporting schemes constitutional invalidity is
inappropriate. See Gonzalez v. Waterfront Commn of the N.Y. Harbor, 748 F.3d 127,
183 (3d Cir. 2014) (assuming that an administrative adjudication and the subsequent
state courts review of it count as a unitary process for Younger purposes); Fieger v.
Cox, 524 F.3d 770, 774-76 (6th Cir. 2008) (affirming lower courts Younger abstention in
First Amendment lawsuit arising from campaign finance enforcement proceedings and
noting the important state interests surrounding campaign finance-enforcement
matters). Once the underlying proceedings and all appeals have run their course,
Plaintiffs are free to seek the United States Supreme Courts review of any final state
court decision that has sustained the validity of a state statute challenged on federal
constitutional grounds[.] Huffman v. Pursue, 420 U.S. 592, 605-06 (1975) (applying
Younger to a First Amendment challenge arising from a civil nuisance proceeding
against an adult movie theater); see also 28 U.S.C. 1257(a) (permitting Supreme

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Court review of final judgment or decrees rendered by a states highest court where the
constitutional validity of a state statute is drawn into question).
II.

Plaintiffs fail to establish a substantial likelihood of success

on the merits of their First Amendment and Colorado
Constitution claims.
A.

The parties agree that Colorados disclosure and

reporting requirements are subject to the
exacting scrutiny standard of review.

The strict scrutiny test, which requires law to be narrowly tailored to a

compelling state interest, Citizens United v. Fed. Election Commn, 558 U.S. 310, 340
(2010), does not apply to disclosure laws like the electioneering provisions at issue
here. Instead, the Supreme Court applies a more relaxed standard exacting scrutiny
because disclosure requirements impose no ceiling on campaign-related activities,
Buckley v. Valeo, 424 U.S. 1, 64 (1976), they do not prevent anyone from speaking.
McConnell v. Fed. Election Commn, 540 U.S. 93, 201 (2003). Here, Plaintiffs do not
and cannot allege that they are prevented from speaking; thus, exacting scrutiny
applies. Under exacting scrutiny, a substantial relation between the disclosure
requirement and a sufficiently important governmental interest must exist. Citizens
United, 558 U.S. at 366-67; Free Speech v. Fed. Election Commn, 720 F.3d 788, 79293 (10th Cir. 2013).

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B.

Disclosure laws serve sufficiently important

governmental interests.

Disclosure and reporting requirements serve the well-established, important

governmental interest of providing information about the sources of election-related
spending for voters use in evaluating candidates. See Citizens United, 558 U.S. at
368-69 (finding that the publics interest in knowing who is speaking about a candidate
shortly before an election justified application of the Bipartisan Campaign Reform Acts
disclosure requirements to a movie about then-Senator Hillary Clinton); Free Speech,
720 F.3d at 798 (explaining that disclosure requirements are necessary to provide the
electorate with information and to insure that the voters are fully informed about the
person or group who is speaking.). Even though disclosures also serve to deter
corruption and the appearance of corruption, which can take many forms, 1 and help in
the detection of violations of contribution limitations, 2 the governments informational
interest alone is sufficient to justify application of Colorados disclosure requirements to
Plaintiffs mailings. Citizens United, 558 U.S. at 369 (finding it unnecessary to consider
other governmental interests beyond the informational interest).

See Citizens United, 558 U.S. 310 U.S. at 447-48 (Stevens, Ginsburg, Breyer & Sotomayor,
JJ., dissenting in part and concurring in part).
2

See McConnell, 540 U.S. at 196 (concluding that these governmental interests support
application of the Federal Election Campaign Acts disclosure requirements to an entire range
of electioneering communications); Buckley, 424 U.S. at 66-67.

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C.

This case does not implicate the regulation of

issue speech.

Plaintiffs chief argument against Colorados electioneering law is that it reaches

issue-driven political expression outside the sphere of express election advocacy.
Doc. # 24 at 8. The facts unequivocally demonstrate, however, that Plaintiffs mailings
are not issue speech.
In no uncertain terms, RMGO appeals to voters to elect the pro-gun rights
candidate, Tony Sanchez by stating:

Sanchez is an RMGO member and has a track record of being a vocal

supporter of gun rights.

Nicolais wont answer [RMGOs] questions, which should make any gun
owner skeptical.

[T]he upcoming elections will have a greater impact on our Second

Amendment rights than any other election in our lifetime. And with so
much at stake, [w]e really have no choice but to go above and beyond to
make sure every person in Colorado who cares about the Second
Amendment knows exactly where their candidates stand.

Doc. # 1-1, at 9-10 (emphasis omitted).

Similarly, CCFL appeals to like-minded voters to vote [their] values and elect the prolife candidates Ms. Woods and Mr. Sanchez, who are publically committed to
defending the rights of the unborn by answering [CCFLs] Survey 100% Pro-Life. Doc.
# 1-1 at 2-6.
For these reasons, Plaintiffs mailings are not issue advocacy they are
functionally equivalent to express advocacy because they reference the 2014 elections
and candidates for office, take positions on candidates character, qualifications, or
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fitness for office, and invite the recipients to factor the information into their voting
decisions; Plaintiffs mailings extend well beyond informing and educating voters. See
Fed. Election Commn v. Wis. Right to Life, Inc., 551 U.S. 449, 470 (2007)
(distinguishing between an issue ad and a communication that is functionally equivalent
to express advocacy); see also FEC Federal Elections Rule, 11 C.F.R. 100.22(b)
(stating, when taken as a whole . . . [r]easonable minds could not differ as to whether
[the communication] encourages actions to elect or defeat one or more clearly identified
candidate(s)); Citizens United, 558 U.S. at 324-26 (finding that movie was functionally
equivalent to express advocacy because of its concentration on alleged wrongdoing
during the Clinton administration, Hillary Clintons qualifications and fitness for office,
and policies she might pursue if elected President); Fed. Election Commn v. Mass.
Citizens for Life, Inc. (MCFL), 479 U.S. 238, 249-50 (1986) (concluding that an election
newsletter constituted express advocacy because it went beyond issue discussion by
provid[ing] in effect an explicit directive: vote for these (named) candidates and was
distributed to members of the general public).
Plaintiffs concede that the electioneering laws may reach the very speech that is
at issue here speech that is functionally equivalent to express advocacy. Doc. # 24 at
8. By Plaintiffs own logic, their claims fail. 3

The disclosure requirements do not violate the free speech provisions of Colorados
constitution, Article II, Section 10. Plaintiffs contention to the contrary (i.e., Claim 4 of the
Complaint) would require this Court to conclude that the Colorado Constitution violates itself,
something no state court has ever suggested. Cf. Colo. Common Cause v. Bledsoe, 810 P.2d
201, 207 (Colo. 1991) (stating, [e]ach provision of the constitution, both original and amended,

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D.

Even by its own terms, Plaintiffs claim that they

engaged in issue advocacy only fails.

Colorados elections communication definition and related disclosure and

reporting requirements are not unconstitutionally overbroad, even under Plaintiffs
implausible theory that their mailings consist of issue advocacy. The Supreme Court
has directly held that disclosure and reporting requirements may constitutionally
encompass speech that is not functionally equivalent to express advocacy. See
Citizens United, 558 U.S. at 368-69 (stating, [W]e reject Citizens Uniteds contention
that the disclosure requirements must be limited to speech that is the functional
equivalent of express advocacy.). Every circuit to address the question including the
Tenth Circuit has hewed to that ruling. 4

should be construed if possible to avoid any conflict between the different parts of the
constitution.).
4

See, e.g., Vt. Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118 (2d Cir. 2014) (Citizens United
removed any lingering uncertainty . . . . [T]he Supreme Court expressly rejected the contention
that the disclosure requirements must be limited to speech that is the functional equivalent of
express advocacy . . . . (citation omitted)); Iowa Right to Life Comm., Inc. v. Tooker, 717 F.3d
576, 591 n.1 (8th Cir. 2013) (Iowas disclosure law covers both express advocacy and issue
advocacy. Disclosure requirements need not be limited to speech that is the functional
equivalent of express advocacy. (citations omitted)); Center for Individual Freedom v. Madigan,
697 F.3d 464, 484 (7th Cir. 2012) (noting that state electioneering laws may constitutionally
cover more than just express advocacy and its functional equivalent); Real Truth About
Abortion v. FEC, 681 F.3d 544, 552 (4th Cir. 2012) (explaining that mandatory disclosure
requirements are permissible when applied to ads that merely mention a candidate); Natl Org.
for Marriage v. McKee, 649 F.3d 34, 5455 (1st Cir. 2011) (We find it reasonably clear, in light
of Citizens United, that the distinction between issue discussion and express advocacy has no
place in First Amendment review of these sorts of disclosure-oriented laws.) Human Life of
Wash. v. Brumsickle, 624 F.3d 990, 101416 (9th Cir. 2010) ([The plaintiffs] position is that . . .
express advocacy[ ] may be subject to disclosure requirements, whereas [issue advocacy] is
constitutionally sacrosanct . . . . [this] argument has been foreclosed by the Supreme Courts
opinion in Citizens United.).

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Moreover, this Court recently upheld the constitutionality of Colorados reporting

and disclosure requirements as applied to communications that were arguably closer to
true issue advocacy than Plaintiffs communications. See Independence Inst. v.
Gessler, No. 14-cv-02426, 2014 U.S. Dist. LEXIS 150272, at *15-22 (D. Colo. 2014)
(Jackson, J.) (unpublished) (upholding requirements as-applied to a non-profit
corporations pre-election ads that advocated for an audit of Colorados healthcare
exchange and urged viewers to call Governor Hickenlooper, a candidate for re-election,
to tell him to support legislation for the audit). The District Court for the District of
Columbia came to the same conclusion. Independence Inst. v. Fed. Election Commn,
No. 14-1500, 2014 U.S. Dist. LEXIS 141526, at *20-22, 34-36 (D.D.C. Oct. 6, 2014)
(unpublished) (rejecting Independence Institutes analogous constitutional challenge to
the Bipartisan Campaign Reform Acts reporting and disclosure requirements).
E.

RMGOs and CCFLs mailings do not subject them

to PAC-like burdens.

Plaintiffs heavily rely on the inapposite decision in Wisconsin Right to Life, Inc. v.
Barland, 751 F.3d 804 (7th Cir. 2014), to support their unsubstantiated assertions that
Colorados definition of electioneering communication subjects them to PAC [political
action committee] 5-like regulations. Doc. # 1, at 59-60, 63-64; Doc. # 24 at 8-10.
In Barland, the Seventh Circuit struck down a law specifically designed to bring
issue advocacy within the scope of the states PAC regulatory system, upon finding

Political committees are groups that support or oppose candidates for election and may
coordinate their activities with candidates. See COLO. CONST. art. XXVIII, 2(12).

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that the law serious[ly] chill[ed] debate about public issues, without substantive
justification for the extraordinary reach of this rule. 751 F.3d at 834, 837. Specifically,
the law required anyone spending over $300 on candidate-related communications to,
among other things: (1) appoint a treasurer who would be personally liable for
violations of the reporting duties and other requirements of the regulatory system; (2)
maintain a separate depository account; (3) keep detailed records of all contributions
and disbursements exceeding $10 . . . and maintain those records for a minimum of
three years; (4) file a registration document and keep it up to date; (5) pay an annual
registration fee; and (6) file frequent, detailed reports and thereby open their books to
public inspection in both election years and non-election years. Id. at 813-15. In
striking down that law, however, Barland specifically distinguished far more modest
laws such as Colorados one-time, event-driven framework for disclosure of
electioneering communications. Id. at 836.
Colorados disclosure requirements for electioneering communications are
much less onerous and simply require the filing of reports with the Secretary once
spending on electioneering communications exceed $1,000 per calendar year; the
required reports must also include the name, address, occupation, and employer of any
person that contributed more than $250 and earmarked that contribution for the
electioneering communication. Thats all that Colorado requires speakers are not
required to register, appoint a treasurer, maintain a separate depository account, pay an
annual registration fee, or open their books to public inspection. Simply put, Colorados

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electioneering communication disclosure laws are nothing like the onerous

requirements struck down in Barland.
Moreover, Colorados disclosure laws for electioneering communications are
more modest than its reporting requirements for PACs, which include the following:

Contribution limitation of $500 per contributor per election cycle. 6

Must report all contributions of $20 or more on an itemized basis, including

the name and address of each contributor. 7

For each contribution of $100 or more made by a natural person, political

committees must also report the contributors occupation and employer. 8

Must register with the Secretary of State, and must update their
registration within 10 days of any change. 9

Must regularly report their contributions and expenditures, even in offelection years; the regular reporting requirement continues until the PAC
files a notice of termination with the Secretary. 10

Termination of the PAC is only permitted if it no longer intends to receive

contributions or make expenditures and it has a zero balance with no
cash or assets on hand and no outstanding debts or obligations. 11

Finally, to the extent that Plaintiffs contend that Colorados reporting

requirements are burdensome because a failure to comply would subject them to a civil
penalty of at least double and up to five times the amount contributed, received, or

See COLO. CONST. art. XXVIII, 2(12) (defining political committee), 3(5) (setting per
house of representatives election cycle limit for contributions to political committees); 8 COLO.
CODE REGS. 1505-6, Campaign Finance Rule 10.14.2(f) (adjusting the original $500
contribution limit to $550 for inflation) (attached as Appendix B).
7

COLO. REV. STAT. 1-45-108(1)(a)(I).

COLO. REV. STAT. 1-45-108(1)(a)(II).

COLO. REV. STAT. 1-45-108(3); 8 COLO. CODE REGS. 1505-6, Campaign Finance Rule 12.1
(attached as Appendix B).

10

COLO. REV. STAT. 1-45-108(2).

11

8 COLO. CODE REGS. 1505-6, Campaign Finance Rule 12.3 (attached as Appendix B).

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spent, Doc. # 1 at 26; Doc. # 24 at 5, such contention should be rejected. That civil
penalty only applies to violations of the contribution or voluntary spending limits
articulated in Article XXVIII of Colorados constitution. See COLO. CONST. art. XXVIII,
10(1). Reporting-requirement violations are only subject to a penalty of [$50] per day
for each day that a statement or other information required to be filed . . . is not filed by
the close of business on the day due. Id. at 10(2).
In sum, Colorado employs targeted disclosure requirements to further the goal of
an informed electorate, and the disclosure requirements are substantially related to that
goal.
F.

Colorados $1,000 reporting trigger is

constitutional.

Plaintiffs contend that Colorados $1,000 reporting trigger is unconstitutional

because: (1) it imposes burdensome PAC-like reporting and disclosure requirements
to speech that is neither express advocacy nor the functional equivalent thereof; (2) it
creates disincentives to speaking; (3) it burdens donors associational privacy interests;
and (4) it is not substantially related to an important governmental interest. Doc. # 24 at
10-13. In support, Plaintiffs rely on Sampson v. Buescher, 625 F.3d 1247 (10th Cir.
2010) and Coalition for Secular Government v. Gessler, No. 12-cv-01708, 2014 U.S.
Dist. LEXIS 144389 (D. Colo. Oct. 10, 2014) (Kane, J.). For the reasons discussed
below, however, Plaintiffs reliance on Sampson 12 and Coalition for Secular Government

12

In a recent decision, Circuit Judge Harris Hartz emphasized the narrow scope and effect of
his majority opinion in Sampson decision. See Citizens United v. Gessler, No. 14-1387, slip op.
at 36 (10th Cir. Nov. 12, 2014) (referring to Sampson as holding that Colorado disclosure

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(CSG) both fact-specific and narrow decisions is misplaced, and their arguments
concerning the reporting triggers unconstitutionality should be rejected.
First, as already discussed in section II(E), infra, Colorados reporting
requirements for electioneering communications are far more relaxed than the reporting
and disclosure requirements for PACs.
Second, the governmental interests of ensuring an informed electorate, deterring
corruption, and detecting campaign finance violations outweigh the burdens imposed on
RMGO and CCFL. Both RMGO and CCFL are sophisticated non-profit corporations;
they are unlike the Sampson plaintiffs, the small group of private citizens who banded
together in a small-scale effort to oppose a municipalitys attempt to annex their
neighborhood and spent no more than $782.02 on signs, banners, postcards, and
postage to generate support for their local ballot initiative. On its website, RMGO
boasts that it is Colorados largest state-based gun lobby and Colorados only pro-gun
PAC, with staff . . . [that] regularly defend [Second Amendment] rights on local and
national news programs, radio talk shows and through the print media. See
http://www.rmgo.org/about/request-info/learn-more (last visited on Nov. 21, 2014).
Moreover, RMGOs founder and executive director is an experienced gun lobbyist and a
former aide to a U.S. Senator and state representative. See
http://www.rmgo.org/about/materials/staff (last visited on Nov. 21, 2014). For its part,
CCFL boasts that its grass-roots lobbying efforts of state wide members and pro-life
requirements could not be imposed on a neighborhood organization opposing annexation to an
adjacent town.)

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advocates, have garnered a record level of support and cosponsors for . . . substantive
[pro-life] measures. See http://coloradocampaignforlife.org/about-ccfl (last visited on
Nov. 21, 2014).
Because neither RMGO nor CCFL is akin to the loosely-organized group of
neighborhood activists in Sampson, that narrow ruling should not apply to this case.
The Tenth Circuits decision hinged on the disconnect between the avowed purpose of
the constitutional disclosure requirements and their effect on the Sampson plaintiffs.
625 F.3d at 1254. The court also noted the attenuated governmental interests that
disclosure serves in the context of ballot issues (which was at issue in Sampson), as
opposed to candidate elections (which is at issue in this case), and distinguished ballot
issues from candidate elections as follows:
[In a candidate election,] [t]he voter must evaluate a human being,
deciding what the candidates personal beliefs are and what influences are
likely to be brought to bear when he or she must decide on the advisability
of future governmental action. The identities of those with strong financial
ties to the candidate are important data in that evaluation. In contrast,
when a ballot issue is before the voter, the choice is whether to approve or
disapprove of discrete governmental action, such as annexing territory . . .
No human being is being evaluated.
Id. at 1256-57. With that limited informational interest in mind, the court concluded that
the imposed burdens (and consequent chilling effect) greatly outweighed the asserted
governmental interests. This case is nothing like Sampson. The Sampson plaintiffs
banded together and raised and spent nominal funds for the sole purpose of defeating
an annexation measure that affected their neighborhood, a much smaller operation in
comparison to RMGO and CCFL.
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Plaintiffs also wrongly rely on CSG for the broad proposition that the at-issue
$1,000 reporting trigger for electioneering communications cannot survive if the $3,500
trigger for issue-committee registration and reporting was deemed unconstitutionally low
as applied to a small-scale issue committee. Plaintiffs compare apples to oranges.
Unlike CSG, this case is not about whether Plaintiffs must register and report as an
issue committee; rather, this case concerns the more relaxed reporting requirements for
electioneering communications. Further, Plaintiffs mailings do not concern ballot
initiatives; rather, they concern candidates positions on issues. Finally, Plaintiffs allege
no facts to suggest that they are a small-scale operation like CSG, which was
expected to receive total monetary and non-monetary contributions of $3,500 in 2014,
and planned to spend no more than that amount to conduct all its business, which was
limited to defeating a Personhood Amendment to Colorados constitution. See CSG,
2014 U.S. Dist. LEXIS 144389, at *4-5, *14-16. In sum, this case is nothing like CSG,
and Plaintiffs have failed to cite to any authority that mandates a finding that the $1,000
reporting trigger for electioneering communications is unconstitutional on its face or asapplied to Plaintiffs. 13

13

Not only does Colorados reporting trigger for electioneering communications survive exacting
scrutiny, it survives the even more relaxed wholly without rationality test that two circuit courts
have recognized. See Worley v. Cruz-Bustillo, 717 F.3d 1238, 1251-1252 (11th Cir. 2013)
(finding First Circuits wholly without rationality test instructive and noting deference needed for
disclosure thresholds, which are inherently inexact); Natl Org. for Marriage v. McKee, 649 F.3d
34, 59-62 (1st Cir. 2011) (applying, in accordance with Buckley, judicial deference to a
legislatively-determined reporting threshold and finding that it was not wholly without
rationality, even though it was not indexed to inflation); see also Justice, Jr. v. Hosemann, No.
13-60754, slip op. cite at 25 n.13 (5th Cir. Nov. 14, 2014) (acknowledging, but not deciding the
application of, the much lighter wholly without merit standard of review).

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Third, Plaintiffs have not established that Colorados narrowly-tailored disclosure

requirements burden their donors associational privacy interests. Neither RMGO nor
CCFL is required to identify its donors unless either has (1) spent $1,000 or more per
calendar year on electioneering communications and (2) received a donation from
someone in the amount of more than [$250] per year for an electioneering
communication. COLO. CONST. art. XXVIII, 6. Thus, unlike the situation presented in
Barland, upon which Plaintiffs rely, neither RMGO nor CCFL is required to open their
books to public inspection and reveal the identities of each of their donors. 751 F.3d
804, 813-15 (7th Cir. 2014). Plaintiffs need only identify the donors who have
earmarked their donations for use in connection with the at-issue mailings. Plaintiffs
have not alleged that they are ill-equipped to identify the donors who have earmarked
their contributions for Plaintiffs mailings.
Moreover, Plaintiffs have not established a reasonable probability that any of
their donors would be subjected to harassment or death threats upon disclosure of their
identities. See Citizens United, 558 U.S. at 367; NAACP v. Alabama ex rel. Patterson,
357 U.S. 449, 462-66 (1985) (concluding that disclosure would substantially restrain
members associational freedoms because, on past occasions, members were exposed
to economic reprisal, loss of employment, threat of physical coercion, and other
manifestations of public hostility); Buckley, 424 U.S. at 74; Brown v. Socialist Workers
Party, 459 U.S. 87, 101-02 (1974) (holding that a disclosure laws application to an
unpopular minor political party would unconstitutionally chill political participation due to
the risk of threats, harassment, or reprisals from either government officials or private
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parties); cf. McIntyre v. Ohio Elections Commn, 514 U.S. 334, 356-57 (1995)
(overturning ban on the distribution of anonymous campaign literature, as applied to a
lone pamphleteer, but noting that the States enforcement interest might justify a more
limited identification requirement). This case does not rise to the level of peculiar
circumstances in which the compelled disclosure of a [donors] identity would
unconstitutionally deter the exercise of First Amendment associational rights; Plaintiffs
have not shown that their donors require anonymity. McIntyre, 514 U.S. at 379-80
(1995) (Scalia, J., dissenting) (reasoning that the right to anonymity does not trump
governmental interests in protecting the electoral processs integrity).
Finally, Plaintiffs have not and cannot allege that Colorados reporting
triggers are complete outliers when compared with other states reporting triggers. As
evidenced by a survey of other states reporting triggers for electioneering
communication that is attached as Appendix C, states triggers range from a low of $100
(Idaho, 14 Maine, 15 and South Dakota 16) to a high of $50,000 (California 17), and some
states require reporting regardless of the amount spent (Louisiana 18 and New York 19).

14

IDAHO CODE ANN. 67-6630(b); Id. at 67-6602(f) (defining electioneering communication in

the same way as Colorado).

15

ME. REV. STAT. ANN. Tit. 21-A, 1019-B(4).

16

S.D. CODIFIED LAWS 12-27-17 (defining electioneering communication in the same way as
Colorado, but not limiting the definition to communications disseminated, broadcast, or
published within a certain time period in advance of a primary or general election).

17

CAL. GOVT CODE 85310 (applying reporting requirement to certain communications

disseminated, broadcast, or published within 45 days of an election).

18

LA. REV. STAT. ANN. 19:1463(C)(2), (5).

19

N.Y. ELEC. LAW 14-107.

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Although some states limit electioneering communications to those that are the
functional equivalent to express advocacy in a likely attempt to protect pure issue
advocacy from reporting requirements, 20 (see, e.g., Alabama, Hawaii, Illinois, Vermont),
the fact that Colorado does not similarly limit its definition of electioneering
communications does not render its laws facially unconstitutional. To facially invalidate
Colorados disclosure laws, Plaintiffs must demonstrate that that the laws are invalid in
the vast majority of their applications. Hernandez-Carrera v. Carlson, 547 F.3d 1237,
1256 (10th Cir. 2008). This Plaintiffs cannot do.
G.

The private enforcement provisions of Article

XXVIII do not violate Plaintiffs rights to free
speech and association.

Plaintiffs seek to preliminarily enjoin the underlying private enforcement action

because it is potentially ruinous in time and cost to them, exposes possibly sensitive
strategy information to political opponents, forces them to divert from their mission to
defend against Ethics Watchs claims at the time when the public is most inclined to
hear their message. Doc. # 24 at 14. Despite their bemoaning, however, Plaintiffs
cannot demonstrate that Colorados private enforcement scheme for campaign finance
violations is overly broad or violates their First Amendment freedoms.
Article XXVIII, 9(2)(a) of Colorados Constitution permits any person who
believes that a violation of reporting requirements has occurred may file a written

20

See Vt. Right to Life v. Sorrell, 758 F.3d 118, 131-32, n.11 (2d Cir. 2014) (upholding
Vermonts electioneering statute, which appeared to sweep more broadly than the functional
equivalent test, because the law does not reach pure express issue advocacy).

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complaint with the Secretary within 180 days after the date of the alleged violation. The
Secretary must refer the complaint to an administrative law judge within three days of
receiving the complaint.
The hearing on the complaint is governed by the Colorado Administrative
Procedure Act. COLO. REV. STAT. 24-4-107. The parties, i.e., the person who filed the
complaint (Ethics Watch) and the person against whom the complaint is filed (RMGO
and CCFL), have the right to discovery and other procedures in accordance, to the
extent practicable, with the procedures in the district court. COLO. REV. STAT. 24-4105(4).
As explained in Section I, infra, this private enforcement scheme is analogous to
a qui tam action under common law, which is a well-established and legitimate tool for
enforcing the law. Moreover, courts have consistently rejected First Amendment claims
lodged by individuals who feared the threat of suits brought by private citizens to
enforce campaign finance laws. See King St. Patriots v. Tex. Democratic Party, No. 0312-00255, 2014 Tex. App. LEXIS 11096, at *12-23 (Tex. App. 2014) (unpublished)
(rejecting First Amendment-based facial challenge arising from private enforcement
scheme for Elections Code violations because of safeguards to protect against
unnecessary or overly intrusive discovery and remedies for frivolous suits); Osterberg v.
Peca, 12 S.W.3d 31, 49-50 (Tex. 2000) (rejecting First Amendment challenge to states
private enforcement scheme for campaign finance violations); Fritz v. Gordon, 517 P.2d
911, 933-34 (Wash. 1974) (finding no problem of constitutional dimension and noting

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that losing plaintiffs may be required to pay the defendants costs and attorneys fees,
which could be hefty given the high cost of legal services).
Just like Texass and Washingtons private enforcement schemes, which
withstood facial and as-applied constitutional challenges, Colorados scheme protects
against frivolous lawsuits by requiring the assessment of attorneys fees against any
party whose complaint or defense is found by an administrative law judge to be
substantially frivolous, vexatious, groundless, or abusive of the discovery process. See
COLO. REV. STAT. 1-45-111.5(2).
For these reasons, Plaintiffs have no likelihood of success on their constitutional
challenge to Colorados private enforcement scheme for campaign finance violations.
III.

Because a preliminary injunction would run against the public

interest, the balance of harms favors the State.

Plaintiffs assert that enjoining Colorados disclosure requirements would be in the

public interest, and that the balance of equities tips in their favor. Doc. # 24 at 14-15.
These elements are best considered together because the public interest in this case is
expressed in Amendment 27 itself: the interests of the public are best served by . . .
providing for full and timely disclosure of campaign contributions, independent
expenditures, and funding of electioneering communications[.] COLO. CONST. art.
XXVIII, 1.
Plaintiffs identify a myriad of harms that would supposedly result if the Court
denies preliminary injunctive relief, and suggest that neither the Secretary nor Ethics
Watch would incur any corresponding cost or hardship if preliminary injunctive relief
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was granted. Doc. # 24 at 14. The Secretary readily acknowledges that he would not
be injured by an order enjoining enforcement of Colorados disclosure scheme; the
entire electorate of Colorado, however, would be injured because prospective voters
would be deprived of their ability to make informed choices in the political marketplace.
McConnell, 540 U.S. at 197.
Colorados voters approved Amendment 27s disclosure framework in 2002 by a
2-1 margin for the specific purpose of ensuring voter access to information that will help
them weigh and assess the value of elections-related messaging. In no uncertain
terms, the voter information guide for that election (a/k/a the Blue Book) identified one
of the amendments goals as providing more information about who is spending money
to influence elections. Blue Book, Appendix D, at 6. The Blue Book, which assists the
electorate in understanding the intentions of the proposed amendment, advised voters
that before 2002, 21 some types of political advertisements [were] not regulated and
therefore [could] be paid for anonymously. The proposal gives people information about
who is paying for these advertisements right before an election. Appendix D.
The voters intent in adopting Amendment 27 is critical in this Courts
consideration of Plaintiffs request for preliminary injunctive relief. See Cerbo v. Protect
Colo. Jobs, Inc., 240 P.3d 495, 501 (Colo. App. 2010) (emphasizing that courts must
must ascertain and give effect to the intent of the electorate when interpreting a voter-

21

See Grossman v. Dean, 80 P.3d 952, 962 (Colo. App. 2003).

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approved constitutional amendment). Injunctive relief in Plaintiffs favor would obliterate

the voters will, as well as the well-intended purposes of Amendment 27.
CONCLUSION
For the foregoing reasons, the Secretary respectfully requests that the Court
deny Plaintiffs Motion for a Preliminary Injunction (Doc. # 24). In sum, Plaintiffs have
an adequate opportunity to assert their constitutional claims in ongoing state court
proceedings; Colorados disclosure laws do not prohibit Plaintiffs from speaking and
constitutionally apply to Plaintiffs non-express advocacy communications, in accord
with Supreme Court precedent; the narrowly-tailored disclosure requirements do not
subject Plaintiffs to PAC-like burdens or burden donors associational privacy interests;
and the private enforcement scheme is analogous to qui tam actions, which are
legitimate tools for law enforcement. Plaintiffs have failed to: (a) make a strong showing
that they are substantially likely to succeed on the merits; (b) demonstrate that
Colorados laws are unconstitutional as applied to them; and (c) show that Colorados
laws are valid under no set of circumstances.
Respectfully submitted this 28th day of November, 2014.

JOHN W. SUTHERS
Attorney General

s/Kathryn A. Starnella

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FREDERICK R. YARGER*
Assistant Solicitor General
KATHRYN A. STARNELLA*
Assistant Attorney General
Public Officials Unit
State Services Section
Attorneys for Scott Gessler, in his official
capacity as Colorado Secretary of State
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 6th Floor
Denver, Colorado 80203
Telephone: 720-508-6168; 720-508-6176
FAX: 720-508-6041
E-Mail: fred.yarger@state.co.us;
kathryn.starnella@state.co.us
*Counsel of Record

CERTIFICATE OF SERVICE
I hereby certify that on November 28, 2014, I served a true and complete copy of
the foregoing Secretary of States Response in Opposition to Plaintiffs Motion for
Preliminary Injunction upon all counsel of record through electronic filing using the
Courts CM/ECF filing system.
s/ Kathryn Starnella

29