Colorado District Court Urged to Reject Another Challenge to Electioneering Communications Disclosure Provisions

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Today, Democracy 21 joined the Campaign Legal Center and Public Citizen in filing an amici brief in Rocky Mountain Gun Owners v. Gessler, urging the U.S. District Court for the District of Colorado to dismiss a challenge to the Colorado Constitution’s “electioneering communications” disclosure provisions and deny a preliminary injunction.  The state law is materially identical to the federal “electioneering communications” disclosure statute, which has been repeatedly upheld by the U.S. Supreme Court, most recently in the 2010 Citizens United decision.

Last month, in Independence Institute v. Gessler, the same Colorado district court dismissed a challenge to the same provisions of Colorado law as they applied to broadcast advertisements.  The Campaign Legal Center, joined by Democracy 21 and Public Citizen, also filed an amici brief in that case in defense of the law.

According to Democracy 21 President Fred Wertheimer:

This is another in a growing line of cases where those who favor dark money are attempting to strike down disclosure laws.  But these cases almost always fail because the Supreme Court has strongly and consistently upheld disclosure requirements, even when striking down other campaign finance rules.  This new case should fail as well because it is directly foreclosed by Supreme Court rulings on disclosure.  The Colorado rules are intended to shed light on those who are funding electioneering communications so that voters have the information they need in order to know who is trying to influence their vote.  This transparency is entirely constitutional.

In June 2014, plaintiffs Rocky Mountain Gun Owners and Colorado Campaign for Life sent mailers to Colorado voters without making required disclosures.  The mailers referred to candidates for office in Colorado and were sent within 30 days of the primary election at a cost of more than $1,000.  They were thus “electioneering communications” subject to the modest disclosure requirements under Colorado law that plaintiffs now challenge as unconstitutionally overbroad.

The Colorado provisions are based on the federal “electioneering communications” disclosure law, which Congress enacted in 2002 to curb widespread evasion of earlier disclosure requirements that applied only to “express advocacy” ads.  The U.S. Supreme Court has twice upheld this law: first in a facial challenge in McConnell v. FEC (2003), and more recently in an as-applied challenge in Citizens United v. FEC (2010).

The Legal Center was assisted in the filing of the amici brief by Steven K. Imig of Lewis, Bess, Williams & Weese P.C.

To read the brief filed today: click here.