Colorado Right to Life Committee, Inc. v. Davidson, 03-cv-1454-WDM-PAC.
| Decision Date | 30 September 2005 |
| Docket Number | No. 03-cv-1454-WDM-PAC.,03-cv-1454-WDM-PAC. |
| Citation | 395 F.Supp.2d 1001 |
| Parties | COLORADO RIGHT TO LIFE COMMITTEE, INC., Plaintiff, v. Donetta DAVIDSON, in her official capacity as Secretary of State, Defendant. |
| Court | U.S. District Court — District of Colorado |
Eric Christian Bohnet, Foley & Pool, LLP, Indianapolis, IN, James Bopp, Jr., Bopp, Coelson & Bostrom, Terre Haute, IN, for Plaintiff.
Maurice G. Knaizer, Monica Marie Marquez, Colorado Attorney General's Office-Depart. of Law, Denver, CO, for Defendant.
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
This matter is before me on the parties' motions for summary judgment. Having considered the parties' motions, stipulated statement of undisputed facts, oral argument, and supplemental filings, I find that both motions should be granted in part and denied in part.
This action revolves around the constitutionality of Article XXVIII of the Colorado Constitution, a citizen passed campaign finance reform amendment designed to limit the influence of money on state elections, particularly money from corporations and special interest groups.1 The Article finds and declares that large political contributions "create the potential for corruption and the appearance of corruption," and, in particular "that political contributions from corporate treasuries ... can unfairly influence the outcome of Colorado elections; and that the interests of the public are best served by limiting campaign contributions, encouraging voluntary campaign spending limits, providing for full and timely disclosure of campaign contributions, independent expenditures, and funding of electioneering communications ..." Art. XXVII, § 1.
As described in Research Publication No. 502-10 and entitled "2002 Ballot Information Booklet, Analysis of Statewide Ballot Issues and Recommendation on Retention of Judges," which was mailed to all Colorado voters, the proposed amendment would regulate political advertisements, require certain disclosures by individuals and organizations which spent certain amounts on an annual basis for such advertisements and prohibit corporations and labor unions from directly funding the regulated political advertisements.2
Plaintiff Colorado Right to Life Committee (CRLC), a non-profit advocacy corporation, fears that enforcement of Article XXVIII will apply to its traditional communications and activities. As a consequence it has filed this action seeking declaratory and injunctive relief against Donetta Davidson, in her official capacity as Secretary of State (Davidson),3 arguing that the Article provisions concerning (1) "electioneering communications"; (2) "Political Committees"; and (3) political contributions and expenditures by corporations are unconstitutional under the First and Fourteenth Amendments of the United States Constitution. In particular, and as summarized in the pretrial order, CRLC makes the following claims:
1. Sections 2(7) and 6, dealing with "electioneering and communications" are impermissibly vague and overbroad and cannot be constitutionally applied to CRLC's communications not directly or indirectly advocating the election or defeat of any candidate;
2. Section 6(2)'s ban on direct corporate funding for electioneering and communications is unconstitutional as applied to CRLC because it is a non-profit ideological corporation that does not engage in business activities and receives only insubstantial or de minimis contributions from business corporations;
3. Section 2(12)'s definition of "political committee" is unconstitutional on its face and as applied to organizations such as CRLC that do not have a major purpose of electing candidates;
4. Section 3(4)(a)'s ban on corporate contributions and expenditures is unconstitutional as applied to CRLC because the non-profit exemption is too narrow; and
5. The section 3(4)(a) ban on corporate expenditures is unconstitutional because it is vague and overbroad.
The parties present no dispute of fact.4 CRLC is a nonprofit, ideological, membership corporation, incorporated in Colorado. Its purposes, according to its Articles of Incorporation, are to (1) promote "reverence and respect for human life, without regard to condition, quality, age, race, religion, creed, or color, whether born or unborn"; (2) educate the community "to the dangers of abortion, euthanasia, infanticide, and compulsory sterilization and also to any form of repressive or permissive legislation which would allow the debasement of man or otherwise weaken or destroy the moral fibre of the community"; and (3) promote "a favorable spiritual, physical, and cultural environment consistent with the above purposes." Ex. A. to complaint. It has several chapters throughout the state.
CRLC is tax-exempt under 26 U.S.C. § 501(c)(4)5 and has a policy of not contributing to, accepting contributions from, or engaging in express advocacy regarding, political parties or candidates. Likewise, it is not associated with any political candidate, political party, or campaign committee, and is not aware of ever receiving any donations at the request of, or solicited by, a political candidate, party or elected official.
CRLC was not established by a business corporation or labor union, and has no shareholders or other persons affiliated with it that would have a claim on its assets and earnings. CRLC has two types of members: (1) contributing members, who include any one who donates money to the organization, unless that person or entity asks not to be a member; and (2) voting members, who include any one who supports CRLC's objectives, indicates a desire to join CRLC, and pays the prescribed dues, unless waived.
CRLC is funded almost exclusively by "membership dues" from individual donors. In 2001, CRLC had 1,529 donors, including 15 who gave more than $200. In 2002, CRLC had 2,101 donors, including 19 who gave more than $200. In 2003, CRLC had 1,333 donors, including 7 who gave more than $200.
CRLC does not have a policy against accepting contributions from business corporations, and it received $50 in corporate contributions in 2001, 2002, and 2003.6 Its gross revenues for the same years were $121,000, $132,000, and $128,000. Additionally, it participates in a long distance telephone service carrier program in which subscribers may designate it as the recipient of a portion the subscriber's bill. In 2003, CRLC received $358.30 from its participation.
CRLC also engages in fund-raising activities including the "sale" of baby feet pins and bumper stickers at various public events like the State Fair. Although there is a suggested donation for the items, they are often given away as well. CRLC's treasurer gives a "wild estimate" that CRLC received approximately $300 per year from these activities. Additionally, once, about a decade ago, CRLC sold a portion of its mailing list to a political candidate.
CRLC has not had a political committee or other segregated account since 1986. It has no record of ever receiving donations earmarked for the type of communications at issue in this case.
CRLC seeks to achieve its purposes by communicating with the public regarding its issues, including information about elected officials, and encourages Colorado citizens to communicate with their representatives on these issues.
CRLC publishes a periodic newsletter, entitled "The Colorado LifeLight," approximately every other month. The newsletter often mentions the names of candidates and their positions on life issues. It is distributed year round, including within 30 days before the primary and 60 days before the general election. The newsletter is sent to members, and sometimes new membership "prospects." The total mailing approximates 3,000 to 3,500 recipients.
CRLC also maintains a website that contains a section on politics and law. Some of its articles in that section mention candidates and are available to the public year round, including immediately preceding elections. Additionally, CRLC "might" have placed voter guides on the website in the past.
Although CRLC asserts its general focus is not on political advocacy, in recent election cycles, it has made communications that unambiguously refer to candidates within 30 days before primary elections and 60 days before general elections to inform voters of candidate's views on abortion, on which it has spent over $1000 per year. These communications include voter guides, radio ads and pre-recorded phone messages, and direct-mail and email. Some historical examples are:
• In July 2000 CRLC sent "Rapid Response Cards," which provided the responses from primary candidates in five districts to a CRLC survey regarding life-related issues, to individuals from those five districts in its mailing list database.7 (Id. at 82-87.) In the September newsletter CRLC noted that in all five pro-life candidates had won and expressed confidence that "the cards had an impact" on the election results. CRLC spent $200 on this effort.
• Before the primaries and general elections in 2000, CRLC circulated the results of its 2000 Candidate Questionnaire which provided the responses of some candidates to a variety of abortion and life-related issues.
• In August 2002, CRLC arranged for a pre-recorded phone call made to identified pro-life supporters in Morgan County before a primary election in which Jack Darnell and Greg Brophy were running. The message compared the views of the two candidates on abortion, and asked the recipient to urge Darnell to "abandon his pro-abortion views" and to "thank" Brophy for defending unborn children. CRLC spent $335 on this activity.
• At the same time, CRLC, in partnership with the Christian Coalition, sent form letters to registered pro-life voters in House District 55 comparing the two candidates views on abortion, and asked recipients, when voting in the...
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