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08 October 2012

Questions for the Colorado Supreme Court in CSG's Lawsuit

By Diana Hsieh

On October 2nd, the Center for Competitive Politics posted a press release about the questions that Judge Kane is sending to the Colorado Supreme Court for CSG's campaign finance lawsuit. It's very interesting news, because until very recently, I didn't even know that this could be part of the legal process. (Look, it's federalism in action! Nifty!)

CONTACT: Sarah Lee, Communications Director, 770.598.7961

ALEXANDRIA, Va. - A federal judge today issued an order seeking clarification by the Colorado Supreme Court of the state's campaign finance laws. Senior Judge John L. Kane of the United States Court for the District of Colorado asked the state Supreme Court to "provide clear guidance... as to the scope and meaning" of provisions that have been challenged under the First Amendment to the US Constitution

Judge Kane's order was made in connection with a case brought by the Center for Competitive Politics (CCP) on behalf of the Coalition for Secular Government (CSG). The case, over which Judge Kane presides, is Coalition for Secular Government v. Gessler, No. 12-cv-1708.

The judge's order noted that the "lawsuit raises First Amendment challenges to several provisions of Colorado campaign finance law that remain undefined by the Colorado Constitution, Article XXVIII's implementing legislation, or caselaw from Colorado courts."

CSG alleges that, even though it plans to raise no more than $3,500--nearly all of which will go toward updating and disseminating a public policy paper--the state constitution appears to demand that CSG register as an issue committee if its papers take a position on ballot measures. Such registration would force CSG to maintain several new types of records, file periodic reports, turn over the names and addresses of contributors who donate as little as $20 toward financing the policy paper, and risk substantial fines should it err in its public filings.

Judge Kane certified four questions. These include:
  • Does the Colorado Constitution treat money spent on a policy paper, including one that suggests how the reader should vote on a ballot initiative, as the equivalent of money spent on political ads?
  • Does the state constitution entitle policy papers distributed over the internet to be treated in the same way as newspaper and magazine editorials for purposes of campaign finance law?
  • In light of a federal decision declaring certain groups too small to be regulated by the state of Colorado, what is the monetary trigger for an issue committee under the state constitution? Is it the roughly-$1,000 mentioned in the federal opinion? The $3,500 contemplated by CSG? The $200 mentioned in the constitution itself? Or another number altogether?
While the Colorado Supreme Court is not required to answer Judge Kane's questions, doing so would provide some welcome guidance on these important questions.

"For years, organizations in Colorado have been unsure how to comply with Colorado's campaign finance rules, or have been subject to politically-motivated complaints for making minor errors," CCP Legal Director Allen Dickerson said. "Some choose not to speak at all in the face of this situation. The Colorado Supreme Court now has the option of bringing a measure of predictability to some of the state constitution's more difficult provisions."

Judge Kane's order, which includes a brief description of the case, may be found here.
Here are the four questions certified in their technical language:
1. Is the policy paper published by the Coalition for Secular Government (CSG) in 2010 "express advocacy" under Art. XXVIII, S 2(8)(a) of the Colorado Constitution?

2. If the policy paper is express advocacy, does it qualify for the press exemption found at Art. XXVIII, S 2(8)(b)?

3. Is the policy paper a "written or broadcast communication" under S 1-45-103(12)(b)(II)(B), C.R.S.? If not, did it become a "written or broadcast communication" when it was posted to CSG's blog or Facebook page?

4. In light of Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010), what is the monetary trigger for Issue Committee status under Art. XXVIII S2(10)(a)(II) of the Colorado Constitution?
I'll be very interested to see how the Colorado Supreme Court rules on these questions -- and then what Judge Kane says about that. I'm excited by the prospect of at least clarifying Colorado campaign finance law, let alone striking down some of its most burdensome elements.

Also, I'll have some news about the forthcoming updates to Ari Armstrong's and my 2010 paper -- The "Personhood" Movement Is Anti-Life -- soon. Although "personhood" won't be on the ballot in Colorado due insufficient signatures, the movement has grown dramatically in influence over the past year, as seen in the GOP primary. Hence, Ari and I are determined to update the policy paper to reflect that.

Alas, my being so sick last week blew apart our plans. We've made a new plan, and it's a better plan, I think. You can expect some announcements about that later this week. Just know that, once again, we will need your support to make it happen!

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