Will Colorado’s Supreme Court Protect Free Speech?

Denver—Think tanks should be free to think and speak out on public affairs issues.

But nationwide, laws are being used to silence and intimidate think tanks, politicians and even everyday Americans.  Under so-called “campaign finance reform,” citizens must now register with the government before they speak out on politics.

Colorado is among the nation’s worst abusers.  In a case that will be appealed to the Colorado Supreme Court on Friday, January 9, the Independence Institute—a state-based think tank—spoke out against two 2005 ballot initiatives that raised taxes—a political debate.  In a blatant effort to silence the think tank, advocates of higher taxes sued the Independence Institute because it did not register with the government as an “issue committee” before exercising its First Amendment rights.

“Every high school student learns that Americans are free and even encouraged to voice their views on elections, but, unfortunately, Colorado’s Legislature and courts have forgotten that lesson,” said Steve Simpson, a senior attorney for the Institute for Justice, which represents the Independence Institute in this case.  “Under campaign finance restrictions in Colorado and nationwide, you now need a lawyer and an accountant to voice your views on political issues.  Simply put, this case seeks to restore the freedoms of speech that campaign finance laws have regulated out of existence.”

In 2005, the Independence Institute ran radio ads criticizing two ballot initiatives that would gut the state’s popular Taxpayers Bill of Rights.  An activist who favored the referenda filed a complaint against the think tank for failing to register with the State of Colorado before speaking and tried to force the group into complying with disclosure laws—naming the names and addresses of supporters who could then be intimidated into withdrawing their support.

Simpson said, “The U.S. Supreme Court recognized in the 1950s that allowing states to obtain membership lists of civil rights organizations could lead to harassment and intimidation.  The same principle applies here and the courts should prevent this modern violation of the First Amendment.”

Colorado law requires an “issue committee” to register with the government, but the definition of “issue committee” (any group that raises or spends more than $200 to support or oppose a ballot issue and has “a major purpose” of doing so) is so vague as to be meaningless.  Groups like the Independence Institute, which debate a wide scope of public policy issues among many other activities, have to choose between silence or invasive government regulation of their political speech.

“The First Amendment does not allow the government to burden speech with such vague and overly broad rules that make silence the only practical choice,” Simpson said.  “This law must be struck down by the Colorado Supreme Court if free speech is to mean anything in the Mile High State.”

Before the Institute for Justice began representing the think tank for free, the Independence Institute spent $50,000 to defend itself.  This illustrates how political operatives use campaign finance laws to silence their opposition:  by making it too expensive to speak.

Jon Caldara, president of the Independence Institute, said, “Think tanks like ours must either be quiet or worry about being prosecuted.  These are all the wrong choices.  The Colorado Supreme Court must take seriously its responsibility as a protector of our constitutional rights.  All Americans have the right to freely express themselves.  We shouldn’t have to register with the government before we speak.”

Not An Isolated Case
Unfortunately, this is not the only Colorado campaign finance case IJ is litigating.  Six neighbors who opposed their neighborhood’s annexation into the nearby town of Parker, Colo., made yard signs, printed fliers and spoke to neighbors about why annexation was a bad idea.  But no sooner did they start speaking than their political opponent filed suit against them for not registering with the government under Colorado’s campaign finance laws.  Complying with this law is so complicated that when the actual state campaign finance disclosure forms for ballot issue committees were tested on 255 people using a simple scenario of typical grassroots activity—based on the neighbors in Parker North—not a single person filled them out correctly.  Anyone in the real world who makes an error on these forms faces fines and other penalties.  (To appreciate how complex Colorado’s campaign finance restrictions are, consider the fact that the manual alone explaining how to fill out the forms is 98 pages.)  Just as in the Independence Institute case, the courts have so far sided with the state.

In Florida, IJ earned a victory right before Election Day 2008 against the state’s “electioneering communications” law—the broadest regulation of political speech in the nation under which any group that merely mentioned a candidate or a ballot issue in a public newsletter or on a website had to register with the government and report all of its spending and donors.

In Washington, D.C., IJ represents SpeechNow.org, an independent group of citizens who want to advocate the election of federal candidates who favor free speech and the defeat of those who favor speech restrictions in the name of campaign finance “reform.”  So far, the group has been silenced by the very campaign finance laws it opposes.  According to federal law and the Federal Election Commission, any time two or more people pool their resources to support or oppose a federal candidate, they become a “political committee” subject to government regulations and limits, which make it virtually impossible for new independent groups like SpeechNow.org to raise start-up funding and effectively reach voters.

In Arizona, IJ represents Arizona political candidates and two independent political groups in a challenge to that state’s “clean elections” law which provides “matching funds” for political candidates who forgo traditional fundraising in favor of taxpayer money.  Such matching fund schemes create a chilling effect on candidates who run on voluntary donations and on the political advocacy of independent groups.

Other state courts and the 4th U.S. Circuit Court of Appeals have struck down similar laws to Colorado’s because they were vague and overbroad.