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

Democracy 21 and Public Citizen joined the Campaign Legal Centerin filing an amici brief in Independence Institute v. Gessler,urging theU.S. District Court for the District of Colorado to dismiss a challenge to the Colorado Constitution’s “electioneering communications” disclosure provisions. The state law is materially identical to the federal “electioneering communications” disclosure statute which was upheld by the U.S. Supreme Court as recently as the 2010 Citizens United decision.  Plaintiff recently filed a suit challenging that federal statute as well.

Plaintiff wishes 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.

“This is yet another frivolous lawsuit that without any legal basis attempts to convince a lower court to ignore the Supreme Court’s eight to one controlling decision in Citizens United upholding disclosure requirements for groups that make expenditures on “electioneering communications,” said Democracy 21 President Fred Wertheimer. “The effort to preserve “dark money” in our elections ignores a fundamental lesson of history that secret money in American politics is a formula for government corruption.”

The U.S. Congress enacted the federal “electioneering communications” disclosure law, which is also being challenged by the plaintiff in a different case, 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.

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