Tenth Circuit Rejects Challenge to Colorado Disclosure Provisions for Electioneering Communications
Today, in Independence Institute v. Williams, the U.S. Court of Appeals for the Tenth Circuit dismissed a challenge to the “electioneering communications” disclosure provisions enshrined in Colorado’s state constitution, affirming a federal district court decision upholding the law. Democracy 21 joined the Campaign Legal Center and Public Citizen in filing an amici brief with the Tenth Circuit to defend Colorado’s law on March 4, 2015, and also filed an amici brief with the lower court in 2014. The state measure is materially indistinguishable from the federal “electioneering communications” disclosure statute, which the U.S. Supreme Court upheld as recently as 2010 in its Citizens United decision.
“The Tenth Circuit has correctly joined a growing list of federal appellate courts which have rejected constitutional challenges to campaign finance disclosure laws,” said Donald Simon, general counsel to Democracy 21. “As bad as the Supreme Court’s Citizen United decision was, the one thing it got right was to uphold the law requiring disclosure of federal electioneering expenditures. The Tenth Circuit followed that precedent today in upholding a similar Colorado disclosure law. The fact that vast amounts of undisclosed money are being spent in this year’s presidential election shows the need for strengthening current disclosure laws, and today’s Tenth Circuit opinion again demonstrates that such disclosure requirements are constitutional.”
Independence Institute wished to run a broadcast ad referring to Governor John Hickenlooper (D-CO) shortly before Election Day without disclosing its donors. The challenged law requires donor disclosure when groups spend more than $1,000 on “electioneering communications”—defined as certain television, radio and print ads that mention the name of a state candidate within 60 days of a general election or 30 days of a primary election.
The U.S. Congress enacted the federal “electioneering communications” disclosure law to curb widespread evasion of earlier disclosure requirements that applied only to “express advocacy” ads. Since then, the Supreme Court has twice upheld this law: first in McConnell v. FEC (2003) in a facial challenge and again in Citizens United v. FEC (2010) in an as-applied challenge. Independence Institute’s parallel challenge to the federal law (Independence Institute v. Federal Election Commission) was rejected by the U.S. District Court for the District of Columbia on October 6, 2014, and is currently on appeal before the D.C. Circuit. The Campaign Legal Center, Democracy 21 and Public Citizen filed amici briefs in both stages of the federal case.
To read the opinion: click here.
To read the Tenth Circuit brief filed by the Campaign Legal Center, Democracy 21 and Public Citizen: click here.
