Arlington, Va—The Institute for Justice today asked the U.S. Supreme Court to review a Colorado campaign finance law that prevents nonprofit policy groups like Colorado’s Independence Institute from freely speaking out about political issues—and exposes them to high-priced litigation if they do. The case is Independence Institute v. Buescher.
When the Independence Institute in 2005 wrote op-eds and aired radio ads discussing the negative impact on taxpayers of two tax referenda, a member of a campaign supporting the referenda sued the group, claiming it should have registered with the government as an “issue committee” and complied with burdensome and intrusive reporting regulations just to speak. After incurring thousands of dollars in legal fees defending itself, the group joined with the Institute for Justice to challenge Colorado’s abusive campaign finance laws as a violation of First Amendment rights. Last December, a state appellate court denied that claim, and the Colorado Supreme Court let the ruling stand.
“Colorado is regulating commentary on public issues, extending campaign finance regulations far beyond what Supreme Court precedents have allowed, and it is now up to the High Court to rein in this and similar state laws,” said Bill Maurer, an Institute for Justice attorney and lead counsel on the petition. “Americans should not have to register with the government to engage in public debates about the direction of their state. If the First Amendment means anything, it means the government cannot require people to get the government’s okay before they can speak.”
The seminal campaign finance case, 1976’s Buckley v. Valeo, permitted the regulation only of groups whose “major purpose” is campaign activity. But under Colorado law, any group of people that “supports or opposes” a ballot issue must comply with registration, administrative and reporting requirements regardless of whether the group’s primary or central purpose is campaign activity. The Independence Institute, for example, has many purposes, including commenting on legislation, both in the state legislature and on the ballot, and other public matters like tax policy. Colorado’s law effectively shuts such groups out of debate on ballot issues.
Jon Caldara, the president of the Independence Institute said, “This case should alarm anyone who believes in the First Amendment rights of issue-oriented organizations, on the left or the right, that want to comment on public policy without being litigated into the ground. Colorado’s law directly regulates speech at the core of the First Amendment.”
As an “issue committee,” the Independence Institute would have had to track and report contributions, including the names and addresses of anyone who gave $20 or more, and track and report the employer and occupation of anyone gave $100 or more.
“Colorado requires issue committees to ‘name names’ of anyone who has given as little as $20 so that the government can post their identities on a publicly available online database,” said Steve Simpson, an IJ senior attorney, and an author on the petition. “These databases are increasingly becoming a source for harassment and retaliation by political activists across the country and create an enormous disincentive for ordinary Americans to participate in the political process. Laws like Colorado’s violate the right of all Americans to engage in anonymous political speech, an American right dating back to the days of the Federalist Papers.”
The Supreme Court has long recognized that forced disclosure of political views and associations poses a serious threat to the First Amendment rights to free speech and association, and Buckley allowed disclosure of political contributions only as a means to prevent quid pro quo corruption of candidates. But a ballot issue cannot be corrupted. Nonetheless, subsequent Court rulings have allowed the question of disclosure for ballot issue campaigns to remain open—leading to the kind of harassment now seen surrounding controversial ballot issues.
The Supreme Court will consider whether it will review the case this fall.
Download the Cert Petition (August 2009)