Citizens United v. Gessler

Decision Date22 September 2014
Docket NumberCivil Action No 14–cv–002266–RBJ
Citation69 F.Supp.3d 1148
PartiesCitizens United, a Virginia Non–Stock Corporation, Plaintiff, v. Scott Gessler, in his official capacity as Secretary of State of the State of Colorado; and Suzanne Staiert, in her official capacity as Deputy Secretary of State of the State of Colorado, Defendants, and Colorado Democratic Party, Garold A. Fornander, Lucía Guzmán, and Dickey Lee Hullinghorst, Intervenor–Defendants.
CourtU.S. District Court — District of Colorado

Amir Cameron Tayrani, Lucas C. Townsend, Matthew Dempsey McGill, Theodore B. Olson, Gibson Dunn & Crutcher, LLP, Washington, DC, for Plaintiff.

Kathryn Anne Teresa Starnella, Leeann Morrill, Matthew David Grove, Colorado Attorney General's Office, Denver, CO, for Defendants.

Edward T. Ramey, Martha Moore Tierney, Heizer Paul, LLP, Denver, CO, for IntervenorDefendants.

ORDER

R. Brooke Jackson, United States District Judge

The case presented today is rather straightforward. Citizens United argues that its free speech rights are violated when the law requires it to disclose its donors while effectively exempting traditional print media and broadcasters from the same requirement. It contends that Colorado's reporting and disclosure exemptions are a form of content- or viewpoint-based discrimination compelling the invalidation of the entire disclosure scheme. I am not convinced and therefore deny plaintiff's motion for a preliminary injunction.

BACKGROUND

The plaintiff, Citizens United, is a Virginia non-stock corporation that regularly engages in political speech and media activities. Its principal purpose is “to promote social welfare through informing and educating the public on conservative ideas and positions on issues, including national defense, the free enterprise system, belief in God, and the family as the basic unit of society.” See Federal Election Commission Advisory Opinion 2010–8 [ECF No. 1–1] at 1. Citizens United produces, markets, and distributes films on various political topics as part of its effort to advocate, recruit members, and disseminate information. One of those films, Rocky Mountain Heist (hereinafter “the Film”), is set to be completed by September 24, 2014 and to be released and distributed in the first week of October. The Film concerns various Colorado advocacy groups and their impact on Colorado government and public policy. Complaint [ECF No. 1] at ¶ 27. It will include “unambiguous references to elected Colorado officials who are candidates for office in this year's general elections....” Id. Although the Film will not editorially endorse specific candidates, it will “likely include events where participants expressly advocate the election or defeat of one or more candidates in the November 4, 2014 elections.” Id. In total, $548,975 has been dedicated to the production of the Film, and $225,000 has been set aside for marketing. Id. at ¶ 29.

In 2002, Colorado's voters overwhelmingly approved Amendment 27 to the state constitution, which has been incorporated as Article XXVIII. Section 1, entitled “Purposes and findings,” states:

The people of the state of Colorado hereby find and declare that large campaign contributions to political candidates create the potential for corruption and the appearance of corruption; that large campaign contributions made to influence election outcomes allow wealthy individuals, corporations, and special interest groups to exercise a disproportionate level of influence over the political process; that the rising costs of campaigning for political office prevent qualified citizens from running for political office; that because of the use of early voting in Colorado timely notice of independent expenditures is essential for informing the electorate; that in recent years the advent of significant spending on electioneering communications, as defined herein, has frustrated the purpose of existing campaign finance requirements; that independent research has demonstrated that the vast majority of televised electioneering communications goes beyond issue discussion to express electoral advocacy; that political contributions from corporate treasuries are not an indication of popular support for the corporation's political ideas and can unfairly influence the outcome of Colorado elections; and that the interests of the public are best served by limiting campaign contributions, establishing campaign spending limits, providing for full and timely disclosure of campaign contributions, independent expenditures, and funding of electioneering communications, and strong enforcement of campaign finance requirements.

Colo. Const. art. XXVIII, § 1. Colorado has also enacted the Fair Campaign Practices Act (“FCPA”), which declares:

The people of the state of Colorado hereby find and declare that large campaign contributions to political candidates allow wealthy contributors and special interest groups to exercise a disproportionate level of influence over the political process; that large campaign contributions create the potential for corruption and the appearance of corruption; that the rising costs of campaigning for political office prevent qualified citizens from running for political office; and that the interests of the public are best served by limiting campaign contributions, establishing campaign spending limits, full and timely disclosure of campaign contributions, and strong enforcement of campaign laws.

C.R.S. § 1–45–102. These constitutional and statutory provisions impose various reporting and disclosure requirements on speakers engaged in electioneering communications and independent expenditures.

Article XXVIII and the FCPA define an “electioneering communication” as:

[A]ny communication broadcasted by television or radio, printed in a newspaper or on a billboard, directly mailed or delivered by hand to personal residences or otherwise distributed that:
(I) Unambiguously refers to any candidate; and
(II) Is broadcasted, printed, mailed, delivered, or distributed within thirty days before a primary election or sixty days before a general election; and
(III) Is broadcasted to, printed in a newspaper distributed to, mailed to, delivered by hand to, or otherwise distributed to an audience that includes members of the electorate for such public office.

Colo. Const. art. XXVIII, § 2 (7)(a); C.R.S. § 1–45–103(9). The term “electioneering communication” does not include:

(I) Any news articles, editorial endorsements, opinion or commentary writings, or letters to the editor printed in a newspaper, magazine or other periodical not owned or controlled by a candidate or political party;
(II) Any editorial endorsements or opinions aired by a broadcast facility not owned or controlled by a candidate or political party;
(III) Any communication by persons made in the regular course and scope of their business or any communication made by a membership organization solely to members of such organization and their families;
(IV) Any communication that refers to any candidate only as part of the popular name of a bill or statute.

Colo. Const. art. XXVIII, § 2 (7)(b); C.R.S. § 1–45–103(9).

Article XXVIII and the FCPA define an “expenditure” as:

[A]ny purchase, payment, distribution, loan, advance, deposit, or gift of money by any person for the purpose of expressly advocating the election or defeat of a candidate or supporting or opposing a ballot issue or ballot question. An expenditure is made when the actual spending occurs or when there is a contractual agreement requiring such spending and the amount is determined.

Colo. Const. art. XXVIII, § 2 (8)(a); C.R.S. § 1–45–103(10). The term “expenditure” does not include:

(I) Any news articles, editorial endorsements, opinion or commentary writings, or letters to the editor printed in a newspaper, magazine or other periodical not owned or controlled by a candidate or political party;
(II) Any editorial endorsements or opinions aired by a broadcast facility not owned or controlled by a candidate or political party;
(III) Spending by persons, other than political parties, political committees and small donor committees, in the regular course and scope of their business or payments by a membership organization for any communication solely to members and their families;
(IV) Any transfer by a membership organization of a portion of a member's dues to a small donor committee or political committee sponsored by such membership organization; or payments made by a corporation or labor organization for the costs of establishing, administering, or soliciting funds from its own employees or members for a political committee or small donor committee.

Colo. Const. art. XXVIII, § 2 (8)(b); C.R.S. § 1–45–103(10). Article XXVIII and the FCPA define an “independent expenditure” as “an expenditure that is not controlled by or coordinated with any candidate or agent of such candidate.” Colo. Const. art. XXVIII, § 2 (9); C.R.S. § 1–45–103(11).

Section 6 of Article XXVIII provides that any person expending $1000 or more per calendar year on electioneering communications must submit reports to the Colorado Secretary of State, which include spending on the electioneering communication as well as the name, address, occupation, and employer of any person that contributed more than $250 to fund the communication. Colo. Const. art. XXVIII, § 6 (1). Section 1–45–108 of the Colorado Revised Statutes governs the timing and contents of such reports.

Section 5 provides that any person making an independent expenditure in excess of $1000 per calendar year must file a notice with the Secretary of State describing the independent expenditure and disclosing the candidate who it is intended to support or oppose. Colo. Const. art. XXVIII, § 5 (1). The person making the independent expenditure must also prominently disclose its identity in the resulting communication. Id. § 5 (2). C.R.S. 1–45–107.5 governs the timing and contents of such notice. Just as in the case of electioneering communications, any...

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