U.S. Supreme Court Declines to Review Independence Institute Free Speech Case

John Kramer
John Kramer · November 16, 2009

Arlington, Va.—The U.S. Supreme Court today denied review of a Colorado campaign finance law that threatens Colorado nonprofit policy groups with costly litigation for merely speaking out about important public issues in elections.  The case—Independence Institute v. Buescher—centered on the Independence Institute’s 2005 effort to warn the public about the negative impact on taxpayers of two tax referenda.

The Independence Institute did what any think tank might do to alert the public to its views:  It published op-eds in newspapers and purchased radio ads.  But in a bid to silence the think tank and drain it of both focus and resources, a member of a campaign supporting the ballot measures sued the Independence Institute, claiming the think tank should have registered with the government as an “issue committee” and complied with burdensome and intrusive reporting regulations just to speak.  After incurring tens of thousands of dollars in legal fees defending itself, the group challenged Colorado’s abusive campaign finance laws as a violation of First Amendment rights.  In December 2008, a state appellate court denied that claim, and the Colorado Supreme Court let the ruling stand.  And now the U.S. Supreme Court has declined review allowing the lower court decision to stand in violation of the Independence Institute’s free speech rights.

“You’re not supposed to have to register with the government before you can express a political view, yet that is what this decision now mandates in Colorado,” said Steve Simpson, a senior attorney with the Institute for Justice.  “This is a dangerous precedent that we will work to overturn until we have the kind of free, open and robust public discussions the First Amendment was designed to protect.”

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.”

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 who gave $100 or more.

Executive Director of the Institute for Justice Washington Chapter Bill Maurer, said, “The citizens of Colorado are now left with a system that allows the government to regulate their speech in ballot issue campaigns.  This denial also means that anyone’s private political opponents can now use the force of government to haul them into expensive and time-consuming hearings merely for exercising their First Amendment rights.  Although this particular fight might be over, IJ will continue to challenge laws like this across the country until all Americans, including Coloradoans, can freely exercise their First Amend rights.”

On Wednesday, November 18, the 10th U.S. Circuit Court of Appeals will hear another important free speech case arising out of Colorado.  This involves six neighbors from Parker North, Colo., who merely wanted to voice their opposition to a plan that would annex their neighborhood into the nearby town of Parker.  They were hauled into court by their political opponent because they hadn’t first registered with the government as an “issue committee.”  IJ, which is arguing the case on behalf of the neighbors, believes that if the First Amendment means anything, it means no one should be hauled into court and subjected to endless red tape simply for speaking out about a political issue they care about.