Colorado Secretary of State's Response in Opposition to RMGO PI Motion

8/10/2019 Colorado Secretary of State's Response in Opposition to RMGO PI Motion

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02850-CMA-KLM

ROCKY MOUNTAIN GUN OWNERS, a Colorado non-profit corporation, andCOLORADO CAMPAIGN FOR LIFE, a Colorado non-profit corporation,

Plaintiffs,

v.

SCOTT GESSLER, in his official capacity as Secretary for the State of Colorado, andCITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, a Delaware non-profit corporation, trading as Colorado Ethics Watch,

Defendants.

SECRETARY OF STATE'S RESPONSE IN OPPOSITION TO PLAINTIFFS' MOTIONFOR 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

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


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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 15-

17. 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, andregular folks like you will determine which path Colorado takes. Thatswhy its vital that gun owners know where every candidate for officestands. Doc. # 1-1, at 8.

Sanchez is an RMGO member and has a track record of being a vocalsupporter of gun rights. Sanchez even temporarily suspended his



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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 injuncti on 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 irreparableinjury 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 agreed-

upon facts, Plaintiffs have fallen entirely short of meeting this burden.

II. Burdens of proof applicable to Plaintiffs as-applied and facialchallenges.

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 consti tutionalclaims because Plaintiffs have an adequate opportuni ty toraise those claims in a currently pending state judicialproceeding.

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-relateddisclosure 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 L AW 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 successon the merits of their First Amendment and ColoradoConstitution claims.

A. The parties agree that Colorados disc losure andreporting 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, 792-

93 (10th Cir. 2013).



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B. Disclosure laws serve sufficiently importantgovernmental 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).

1 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 supportapplication of the Federal Election Campaign Acts disclosure requirements to an entire rangeof electioneering communications); Buckley , 424 U.S. at 66-67.



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C. This case does not implicate the regulation ofissue 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 vocalsupporter of gun rights.

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

[T]he upcoming elections will have a greater impact on our Second Amendment rights than any other election in our lifetime. And with somuch at stake, [w]e really have no choice but to go above and beyond tomake 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 pro-

life 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

3 The disclosure requirements do not violate the free speech provisions of Coloradosconstitution, Article II, Section 10. Plaintiffs contention to the contrary ( i.e. , Claim 4 of theComplaint) 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.2d201, 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 theyengaged in issue advocacy on ly 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 Unitedremoved any lingering uncertainty . . . . [T]he Supreme Court expressly rejected the contentionthat the disclosure requirements must be limited to speech that is the functional equivalent ofexpress advocacy . . . . (citation omitted)); Iowa Right to Life Comm., Inc. v. Tooker , 717 F.3d576, 591 n.1 (8th Cir. 2013) (Iowas disclosure law covers both express advocacy and issueadvocacy. Disclosure requirements need not be limited to speech that is the functionalequivalent 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 constitutionallycover 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 disclosurerequirements 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 lightof Citizens United , that the distinction between issue discussion and express advocacy has noplace in First Amendment review of these sorts of disclosure-oriented laws.); Human Life ofWash. 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] isconstitutionally sacrosanct . . . . [this] argument has been foreclosed by the Supreme Courtsopinion 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 themto 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

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



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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 mor e 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, politic al

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 off-

election years ; the regular reporting requirement continues until the PACfiles a notice of termination with the Secretary. 10

Termination of the PAC is only permitted if it no longer intends to receivecontributions or make expenditures and it has a zero balance w ith nocash 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

6 See COLO. CONST . art. XXVIII, 2(12) (defining political committee), 3(5) (setting perhouse of representatives election cycle limit for contributions to political committees); 8 C OLO. CODE REGS . 1505-6, Campaign Finance Rule 10.14.2(f) (adjusting the original $500contribution limit to $550 for inflation) (attached as Appendix B).7 COLO. REV. STAT . 1-45-108(1)(a)(I).8 COLO. REV. STAT . 1-45-108(1)(a)(II).9 COLO. REV. STAT . 1-45-108(3); 8 C OLO. CODE REGS . 1505-6, Campaign Finance Rule 12.1(attached as Appendix B).10 COLO. REV. STAT. 1-45-108(2).11 8 C OLO. 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 isconstitutional.

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 ofhis 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 anadjacent 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 arelikely to be brought to bear when he or she must decide on the advisabilityof future governmental action. The identities of those with strong financialties 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 ordisapprove 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 as-

applied to Plaintiffs. 13

13 Not only does Colorados reporting trigger for electioneering communications survive exactingscrutiny, it survives the even more relaxed wholly without rationality test that two circuit courtshave 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 fordisclosure thresholds, which are inherently inexact); Natl Org. for Marriage v. McKee , 649 F.3d34, 59-62 (1st Cir. 2011) (applying, in accordance with Buckley , judicial deference to alegislatively-determined reporting threshold and finding that it was not wholly withoutrationality, 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 theapplication 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. C OLO. 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 inthe same way as Colorado).15 ME. REV. STAT . ANN. Tit. 21-A, 1019-B(4).16 S.D. CODIFIED L AWS 12-27-17 (defining electioneering communication in the same way as

Colorado, but not limiting the definition to communications disseminated, broadcast, orpublished within a certain time period in advance of a primary or general election).17 C AL. GOVT CODE 85310 (applying reporting requirement to certain communicationsdisseminated, broadcast, or published within 45 days of an election).18 L A. REV. STAT . ANN. 19:1463(C)(2), (5).19 N.Y. ELEC. L AW 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 provis ions of ArticleXXVIII do not violate Plainti ffs r ights to freespeech 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) (upholdingVermonts electioneering statute, which appeared to sweep more broadly than the functionalequivalent 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. C OLO. REV. S TAT . 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. C OLO. REV. STAT . 24-4-

105(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. 03-

12-00255, 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. S TAT . 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 injunc tion would run against the publicinterest , 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[.] C OLO. 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 GeneralPublic Officials UnitState Services Section

Attorneys for Scott Gessler, in his officialcapacity as Colorado Secretary of State

Ralph L. Carr Colorado Judicial Center1300 Broadway, 6th FloorDenver, Colorado 80203Telephone: 720-508-6168; 720-508-6176FAX: 720-508-6041E-Mail: [email protected];

[email protected]*Counsel of Record

CERTIFICATE OF SERVICE

I hereby certify that on November 28, 2014, I served a true and complete copy ofthe foregoing Secretary of States Response in Opposition to Plaintiffs Motion forPreliminary Injunction upon all counsel of record through electronic filing using theCourts CM/ECF filing system.

s/ Kathryn Starnella


Colorado Secretary of State's Response in Opposition to RMGO PI Motion

Documents

Transcript of Colorado Secretary of State's Response in Opposition to RMGO PI Motion