The First Amendment vs. Campaign Finance:

John Kramer
John Kramer · January 26, 2007

Arlington, Va.—A Colorado court will hear arguments today to decide whether the First Amendment protects the right of policy groups to speak freely about ballot issues—or whether they must first register with the government simply to express an opinion about such issues.

The Independence Institute, a non-profit, pro-free-market think tank based in Golden, Colo., brought a constitutional challenge against the State’s restrictions on political speech after finding itself in the cross hairs of a politically motivated lawsuit for speaking out about state referenda. The Institute for Justice, a national public interest law firm that defends First Amendment rights, represents the Independence Institute in the case.

“In America, you shouldn’t be forced to register with the government and comply with burdensome regulations in order to speak out about politics,” said Steve Simpson, an Institute for Justice senior attorney and lead counsel in Independence Institute v. Richard Evans and Gigi Dennis, Secretary of State, State of Colorado, which will be heard by the District Court of Denver County at 1:30 p.m. today. “But Colorado’s vague laws can sweep up educational non-profits and ordinary citizens alike in bureaucratic red tape or even litigation just for voicing an opinion. That’s exactly what the First Amendment is supposed to prevent.”

In 2005, the Independence Institute was sued for criticizing Referenda C and D, which it believed would raise taxes and increase government spending, and failing to register as an “issue committee” under Colorado law—even though it isn’t one. That would compel the Institute to comply with onerous tracking and reporting requirements and to disclose the identities and employers of all of its contributors—regardless of whether those supporters had any intention of making a public stand on those particular referenda.

The complaint against the Institute was not filed by an ordinary citizen, but by Richard Evans, who worked for a campaign supporting Referenda C and D. His complaint was eventually thrown out as unwarranted, but it cost the Institute tens of thousands of dollars to defend its right to speak. Unfortunately, Colorado’s vague laws permit and even encourage such politically motivated litigation, leaving other policy groups vulnerable to similar attacks.

In fact, more than 500 Colorado non-profits spoke out and endorsed Referenda C and D according to the Colorado Nonprofit Association, which itself undertook a large campaign including radio ads to support the referenda. Groups such as local chapters of the League of Women Voters, the Colorado Children’s Campaign and the Colorado Cross-Disability Coalition also spoke and organized in support of the referenda.

Understanding the danger to its right to speak, the Colorado Cross-Disability Coalition (CCDC) filed a statement with the Denver court in support of the Independence Institute’s challenge—even though it was on the other side of the referenda.

Like the Independence Institute, the CCDC is a non-profit policy group that spoke extensively about its position on Referenda C and D. Also like the Institute, the CCDC recognizes that to have to register as an issue committee would effectively ban it from speaking on such ballot initiatives ever again. The tracking and reporting requirements alone would be an enormous burden for a staff with limited time and resources and a huge diversion from its core activities of advocating for the disabled. It would also expose CCDC donors, who expect confidentiality, to unwanted public scrutiny—and likely force some to withdraw their support.

IJ argues that under Colorado’s campaign finance laws the definition of “issue committee” is so vague, it is impossible for an organization to know if it is one until after it has spoken—and possibly been dragged into court. Prompted by this litigation, the Colorado Secretary of State tried to clarify the rules, but questions remain, such as whether a group has a “major purpose” of supporting or opposing a ballot issue—or even what “support or oppose” means. Moreover, the Secretary’s clarification is not permanent law and can change at any time without a ruling from the courts or a change by the Legislature.

“The First Amendment is not a guessing game,” Simpson said. “Speech can’t be free if subjected to laws that no one understands and that political opponents can manipulate to sue their opposition.”

IJ also argues that the First Amendment protects the right of donors to remain confidential if they choose. The Secretary’s new rules also limited donor disclosures to contributions earmarked for ballot issue activities—protecting the anonymity of only some donors. But government forcing any donors to disclose their support or opposition to an issue is no different than forcing them to disclose which way they vote.

“Requiring donors to disclose their names, addresses and employers violates their privacy and makes a mockery of the right to a secret ballot,” added Simpson.

“Across the nation, the growing regulation of political speech is threatening to silence ordinary citizens and shut them out of the political process,” concluded Chip Mellor, Institute for Justice president and general counsel. “We are fighting to turn back the tide of regulation and restore free and robust political debate.”

IJ is defending free political speech from government regulation in cases nationwide:

  • Sampson v. Coffman—IJ filed a federal lawsuit challenging Colorado campaign finance laws used to sue a small band of neighbors in Parker North who placed signs in their yards opposing annexation to a nearby town—without registering as an “issue committee.” They were sued by neighbors in favor of annexation.
  • San Juan County v. No New Gas Tax—IJ recently argued before the Washington Supreme Court, challenging the application of that State’s campaign finance regulations to media. Again, advocates on one side of a ballot issue sued a group on the other side, but this time it was for failing to disclose as “in-kind” contributions the on-air discussions of the issue by two talk radio hosts.
  • Association of American Physicians and Surgeons v. Brewer—IJ is challenging in federal court a State scheme for taxpayer-funded campaigns that punishes those who opt to raise only private funds for their political campaigns.