Major Legal Victory for Free Speech

John Kramer
John Kramer · November 9, 2010

Arlington, Va.—A federal appellate court today held that six neighbors in the tiny subdivision of Parker North, Colo., should not have been forced to register with the government and comply with burdensome campaign finance laws simply for opposing a ballot issue involving the annexation of their neighborhood.

In Sampson v. Buescher, Judge Harris L. Hartz of the 10th U.S. Circuit Court of Appeals, writing for a unanimous court, recognized the severe burden Colorado’s campaign finance laws imposed on grassroots political activists. In his opinion, he wrote, “The average citizen cannot be expected to master on his or her own the many campaign financial-disclosure requirements set forth in Colorado’s constitution, the Campaign Act, and the Secretary of State’s Rules Concerning Campaign and Political Finance.”

Watch IJ Senior Attorney Steve Simpson discuss the victory.

IJ client Karen Sampson said, “This ruling is a complete vindication of what we’ve said all along. Campaign regulations and red tape serve no purpose in local ballot issue elections other than to make political participation more difficult for ordinary citizens.”

For a brief and funny video discussing this lawsuit, visit:

Sampson and her neighbors first learned about Colorado’s campaign finance laws when they organized to oppose the annexation of their neighborhood into the adjacent town of Parker. The group talked to neighbors, circulated postcards and planted yard signs. But in Colorado and other states, when two or more people spend more than $200 to speak out about a ballot issue, they must register with the state as an “issue committee” and comply with rules and regulations that rival the tax laws in their complexity. Issue committees must appoint a registered agent, open separate bank accounts, and disclose all contributions and expenditures of more than $20 for such things as yard signs and fliers. Because Sampson and the others failed to register with the government before speaking, the principal proponents of the annexation used Colorado’s campaign finance laws to sue them.

“This ruling means that grassroots political activists in Colorado and the other states that compose the 10th Circuit can speak freely without fear of being sued by their political opponents,” said Steve Simpson, an Institute for Justice senior attorney who represents the neighbors in Parker North. “The Court recognized that the states have little or no interest in requiring groups that simply wish to speak out for and against ballot issues to register and comply with complicated disclosure rules.”

A recent study by campaign finance expert Dr. Jeffrey Milyo of the University of Missouri asked 255 people to comply with the registration and disclosure laws, and not one participant managed to do so correctly. The average correct score was just 41 percent. Each person could have been subject to fines and penalties in real life. Like those in Parker North, participants found the red tape was, “Worse than the IRS!” and said it would make them less likely to get involved in politics.

This is yet another important victory in the Institute for Justice’s efforts to protect free speech from government-imposed restrictions in the guise of so-called campaign finance “reforms.”

In March of this year, the Institute for Justice, working together with the Center for Competitive Politics, scored an important legal victory in the D.C. Circuit Court of Appeals on behalf of, a group of individuals who wanted to pool their money to run independent political ads for or against candidates based on their support for the First Amendment. The ruling struck down federal campaign finance laws that made it practically impossible for new and independent groups of individuals to join together, raise money and advocate for the election or defeat of political candidates.

In May 2009, the Institute for Justice scored another important victory for free speech when a federal court struck down Florida’s “electioneering communications” law—the broadest regulation of political speech in the nation. The ruling freed community groups and educational non-profits across Florida and the nation to speak about candidates and issues on the Florida ballot without registering with the government and navigating bureaucratic red tape.

And on November 23, the U.S. Supreme Court will consider whether to accept the Institute for Justice’s challenge to Arizona’s so-called “Clean Elections” system. That system funnels “matching funds” to government-funded political candidates and punishes those politicians who reject taxpayer money for their campaigns and instead raise money as most politicians have for the history of our nation—through private, voluntary contributions.

Plaintiff Becky Cornwell, who had to comply with Colorado’s laws for the Parker North group, said, “Individuals should not have to comply with complicated rules just to speak. As the group’s registered agent, I was constantly worried about making a small error that would lead to another lawsuit and possibly fines. Thanks to this ruling, I finally feel like my neighbors and I can join together to speak out about the issues we care about.”

In its ruling, the court also rejected the idea that Colorado’s disclosure laws for ballot issues could be supported by an “informational interest,” noting that such disclosure facilitated “ad hominem arguments.” Said the court, “When many complain about the deterioration of public discourse—in particular, the inability or unwillingness of citizens to listen to proposals made by particular people or by members of particular groups—one could wonder about the utility of ad hominem arguments in evaluating ballot issues. Nondisclosure could require the debate to actually be about the merits of the proposition on the ballot.”

Steve Simpson said, “Freedom of speech means that citizens, not government, get to decide whether to disclose their identities when they speak out about ballot issues. For those who don’t trust anonymous speech, the solution is not to listen to it.”

And indeed, research shows that most people do not use such information anyway. IJ Director of Strategic Research Dr. Dick Carpenter surveyed views on disclosure of ballot issue contributors in six states, including Colorado, and found that most people—about 60 percent—do not even know where to find contributor information, nor do they seek it out before voting.

“This is yet another example of an important judicial trend the Institute for Justice has advocated since our founding—that of judicial engagement,” said Institute for Justice President and General Counsel Chip Mellor. “Judges are becoming rightfully more engaged in defending vital rights and striking down laws that exceed constitutionally enshrined limits on legislative powers.”

Download Milyo’s study, “Campaign Finance Red Tape.” Carpenter’s research is also available for download, “Disclosure Costs,” and “Mandatory Disclosure for Ballot-Initiative Campaigns.”