Coloradans for a Better Future v. Campaign Integrity Watchdog , 409 P.3d 350 ( 2018 )

1 Opinions of the Colorado Supreme Court are available to the
2 public and can be accessed through the Judicial Branch’s homepage at
3 http://www.courts.state.co.us. Opinions are also posted on the
4 Colorado Bar Association’s homepage at http://www.cobar.org.
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6 ADVANCE SHEET HEADNOTE
7 January 29, 2018
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9 2018 CO 60
1 No. 16SC637, Coloradans for a Better Future v. Campaign Integrity Watchdog—
2 Election Law—Disclosure.
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4 A lawyer filed a report for Coloradans for a Better Future (“Better Future”), a
5 political organization, without charging a fee. The supreme court reverses the court of
6 appeals’ determination that that Better Future was required to report the donated legal
7 service as a “contribution” under Colorado’s campaign-finance laws. The constitutional
8 definition of “contribution” does not address political organizations, and neither part of
9 the statutory definition relied on by the court of appeals covers legal services donated to
0 political organizations. Section 1-45-103(6)(b), C.R.S. (2017), does not apply to political
1 organizations, and the word “gift” in section 1-45-103(6)(c)(I), C.R.S. (2017), does not
2 include gifts of service.
1 The Supreme Court of the State of Colorado
2 2 East 14th Avenue • Denver, Colorado 80203
3 2018 CO 64 Supreme Court Case No. 16SC637
5 Certiorari to the Colorado Court of Appeals
6 Court of Appeals Case No. 14CA2073
7 Petitioner:
8 Coloradans for a Better Future,
9 v.
0 Respondent:
1 Campaign Integrity Watchdog.
2 Judgment Reversed
3 en banc
4 January 29, 2018
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6 Attorneys for Petitioner:
7 Paul M. Sherman
8 Samuel B. Gedge
9 Arlington, Virginia
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1 KBN Law, LLC
2 Mario Nicolais
3 Lakewood, Colorado
4 Authorized Representative of Respondent:
5 Matthew Arnold
6 Denver, Colorado
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8 Attorneys for Amici Curiae Diana Brickell, Tammy Holland, and Karen Sampson:
9 Wiley Rein LLP
0 Robert L. Walker
1 A. Louisa Brooks
2 Washington, DC
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4 Beem & Isley, P.C.
5 Clifford L. Beem
6 A. Mark Isley
7 Denver, Colorado
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2 Attorneys for Amicus Curiae Colorado Secretary of State:
3 Cynthia H. Coffman, Attorney General
4 Frederick R. Yarger, Solicitor General
5 Matthew D. Grove, Assistant Solicitor General
6 Grant T. Sullivan, Assistant Solicitor General
7 Denver, Colorado
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9 Attorneys for Amicus Curiae Institute for Free Speech:
0 Allen Dickerson
1 Tyler Martinez
2 Alexandria, Virginia
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4 JUSTICE HOOD delivered the Opinion of the Court.
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¶1 Colorado’s campaign-finance laws require political organizations like
Coloradans for a Better Future to report contributions. Jonathan Anderson, a lawyer,
filed a termination report for Better Future without requiring payment for his legal
work, and Better Future didn’t report his service as a contribution. Campaign Integrity
Watchdog complained to Colorado’s Secretary of State that Better Future should have
done so. An Administrative Law Judge, or ALJ, dismissed Watchdog’s complaint on
the merits.
¶2 The court of appeals reversed in part, holding that Anderson’s service counted as
a “contribution” to Better Future as the word is defined in section 1-45-103(6), C.R.S.
(2017), of the Fair Campaign Practices Act, §§ 1-45-101 to -118, C.R.S. (2017) (“FCPA”).
If the service was donated, the court reasoned, it was a “gift” under section
1-45-103(6)(c)(I). If it was billed but not paid, it was an undercompensated service
under section 1-45-103(6)(b). Either way, the service constituted a reportable
contribution under the FCPA.
¶3 We conclude that the uncompensated legal services at issue here are not
“contributions” to a political organization under Colorado’s campaign-finance laws.
The constitutional definition of “contribution” does not address political organizations,
and neither part of the FCPA definition relied on by the court of appeals covers legal
services donated to political organizations. Section 1-45-103(6)(b) does not apply to
political organizations, and the word “gift” in section 1-45-103(6)(c)(I) does not include
gifts of service. Accordingly, the court of appeals erred in holding that Better Future
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was required to report Anderson’s donated legal services. We reverse and remand for
further proceedings consistent with this opinion.
I. Facts and Procedural History
¶4 Coloradans for a Better Future (“Better Future”) engaged in the 2012
primary-election campaign as a registered political organization. In that campaign,
Matthew Arnold ran for Regent at Large of the University of Colorado. Better Future
purchased one radio advertisement criticizing Arnold and another supporting his
opponent, Brian Davidson. Arnold lost the primary to Davidson.
¶5 Arnold, or his organization Campaign Integrity Watchdog (“Watchdog”), has
since filed a series of campaign-finance complaints against Better Future; this is the
fourth. Arnold filed the first two complaints individually. He then created Watchdog,
of which he is the sole member. Watchdog filed the third and fourth complaints.
¶6 First, Arnold alleged campaign-finance violations based on Better Future’s radio
advertisements in the 2012 primary. Jonathan Anderson represented Better Future in
the matter, which was litigated in 2012 and early 2013. The Administrative Law Judge
(“ALJ”) rejected some of the allegations, but fined Better Future $4525 for failing to
properly report the advertisements as electioneering communications.
¶7 Second, Arnold complained that Better Future should have, but had not,
reported Anderson’s legal work on the first complaint as either an expenditure or a
contribution under the Colorado FCPA. Arnold argued that if Better Future had paid
Anderson, then that was a reportable expenditure; and if Better Future had not paid
him, then it had received a reportable contribution of services. This time, Better Future
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didn’t show up to defend itself and wasn’t represented by counsel. The ALJ dismissed
the complaint all the same, concluding that paying for an attorney is not an
“expenditure.” Because no evidence showed that Anderson had worked for free, the
ALJ did not reach Arnold’s contribution argument. The court of appeals affirmed the
ALJ’s decision in an unpublished decision. Arnold v. Coloradans for a Better Future,
No. 14CA122 (Colo. App. Feb. 5, 2015).
¶8 Third, Watchdog complained that Better Future had failed to report a
contribution when a third party had paid for costs that Better Future had owed. An ALJ
determined that Better Future had, in fact, reported the contribution.
¶9 Fourth, Watchdog filed the complaint at issue here, alleging once again that
Better Future had failed to report contributions or spending related to Anderson’s
representation of Better Future. Anderson had represented Better Future in 2012 and
2013 on the first campaign-finance claim, winding down his representation in February
2013. But he had acted on Better Future’s behalf again in January 2014 when he filed a
contribution and termination report for Better Future. Watchdog complained that
Better Future should have reported all of Anderson’s services, either as spending or
contributions. Again, Better Future did not appear in administrative court.
¶10 Watchdog subpoenaed Anderson’s law firm for billing records related to Better
Future, and Anderson filed a motion to quash the subpoena. The ALJ denied that
motion, and the firm turned over documents showing that it had invoiced Better Future
about $5000 in March 2013 for Anderson’s work through February 2013 on the first
claim, but that it had not invoiced Better Future for Anderson’s January 2014 work.
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¶11 The ALJ inferred that Better Future had paid for the invoiced 2012–2013 legal
services, and it rejected Watchdog’s claim that Better Future was required to report that
spending.1 The ALJ also rejected the argument that Better Future should have reported
Anderson’s un-invoiced 2014 services as a contribution. It reasoned that the services
were not provided “for the purpose of promoting” a candidate’s election or nomination
under the definition of “contribution” in article XXVIII, section 2(5)(a)(IV) of the
Colorado Constitution.
¶12 Watchdog appealed, and the court of appeals affirmed the ALJ’s determination
that Better Future had not been required to report the invoiced 2012–2013 services, but
it reversed the ALJ’s determination that the un-invoiced 2014 services were not
reportable contributions. It held that the ALJ erred by applying only the constitutional
definition of “contribution,” and it went on to apply the statutory definition of
“contribution” in section 1-45-103(6). It explained that the un-invoiced 2014 services
were a “contribution” either as undercompensated services under section 1-45-103(6)(b)
or as a “gift” under section 1-45-103(6)(c)(I).
¶13 Better Future petitioned for review of the court of appeals’ holding that the
un-invoiced 2014 services were a contribution,2 and we granted certiorari.3
1 You may wonder why the complaint relating to the 2012–2013 legal services was
decided a second time on the merits. The ALJ determined that issue preclusion was
inapplicable here, and that determination is not before us.
2 Watchdog did not file a cross-petition seeking review of the court of appeals’ holding
that the invoiced 2012–2013 services were not reportable. So, that issue is not before us.
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II. Analysis
¶14 We begin with the standard of review and principles of interpretation. Next, we
survey the meaning of “contribution” under Colorado’s multi-layered
campaign-finance scheme, and we determine that the statutory definition, but not the
constitutional definition, applies to political organizations. Turning to the statutory
definition, we consider whether a contribution under section 1-45-103(6)(b), the amount
of which is to be “determined by the candidate committee,” can apply to a political
organization like Better Future. We conclude it cannot. Finally, we examine the term
“gift” in the phrase, “Any payment, loan, pledge, gift, advance of money, or guarantee
of a loan made to any political organization.” § 1-45-103(6)(c)(I). We conclude that
contributions under this subsection are limited to monetary aid to political
organizations, and therefore the term “gift” does not include donated services.
A. Standard of Review and Principles of Interpretation
¶15 We review questions of constitutional and statutory interpretation de novo.
Gessler v. Colo. Common Cause, 2014 CO 44, ¶ 7, 327 P.3d 232, 235.
¶16 In construing statutes and citizen initiatives, we seek to give effect to the General
Assembly’s and the electorate’s intent, respectively. See Teague v. People, 2017 CO 66,
¶ 8, 395 P.3d 782, 784 (statute); People v. Lente, 2017 CO 74, ¶ 16, 406 P.3d 829, 832
(citizen initiative). We read words and phrases in context, § 2-4-101, C.R.S. (2017),
3We granted certiorari on the following issue: “Whether the court of appeals erred in
concluding that pro bono and reduced cost legal services are ‘contributions’ within the
meaning of Colorado’s campaign-finance laws.”
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according them their plain and ordinary meanings, Teague, ¶ 8, 395 P.3d at 784; Lente,
¶ 16, 829 P.3d at 832. If the language is clear, we apply it as written. Teague, ¶ 8, 395
P.3d at 784; Lente, ¶ 16, 829 P.3d at 832.
B. The Fair Campaign Practices Act, Not the Constitution,
Defines “Contribution” to Political Organizations
¶17 Three primary sources provide campaign-finance law in Colorado. Article
XXVIII of the Colorado Constitution, a citizen initiative, limits and requires reporting of
some political contributions and spending, and it provides for private enforcement of
campaign-finance law. The FCPA covers more of the same ground. Finally, the
Colorado Secretary of State (the “Secretary”) promulgates additional campaign-finance
rules. Dep’t of State, 8 Colo. Code Regs. 1505-6 (Dec. 15, 2017).
¶18 During the time at issue here, Better Future was registered with the Secretary as
a political organization, and neither party disputes that status. Reporting requirements
for political organizations are covered under section 1-45-108.5, C.R.S. (2017), of the
FCPA. That section requires a political organization to report “[a]ny contributions it
receives.” § 1-45-108.5.
¶19 So what is a contribution? The answer is surprisingly complex. “Contribution”
is defined in both the FCPA, § 1-45-103(6), and in article XXVIII of the constitution, and
the FCPA definition incorporates the constitutional definition. § 1-45-103(6)(a)
(“‘Contribution’ shall have the same meaning as set forth in section 2(5) of article
XXVIII of the state constitution.”). Each of those definitions has multiple subparts. And
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if that weren’t enough, the meaning varies depending on the class of political actor to
which the term “contribution” is being applied.
¶20 Before we decide whether the donated legal service to Better Future counted as a
“contribution,” we must first establish which parts of the two definitions apply to
political organizations like Better Future.
¶21 The constitutional definition, which was implemented in 2002, contains subparts
that govern a range of political entities, but makes no mention of political organizations:
(5)(a) “Contribution” means:
(I) The payment, loan, pledge, gift, or advance of money, or
guarantee of a loan, made to any candidate committee, issue
committee, political committee, small donor committee, or political
party;
(II) Any payment made to a third party for the benefit of any
candidate committee, issue committee, political committee, small
donor committee, or political party;
(III) The fair market value of any gift or loan of property made to
any candidate committee, issue committee, political committee,
small donor committee or political party;
(IV) Anything of value given, directly or indirectly, to a candidate
for the purpose of promoting the candidate’s nomination, retention,
recall, or election.
(b) “Contribution” does not include services provided without
compensation by individuals volunteering their time on behalf of a
candidate, candidate committee, political committee, small donor
committee, issue committee, or political party; a transfer by a membership
organization of a portion of a member’s dues to a small donor committee
or political committee sponsored by such membership organization; or
payments by a corporation or labor organization for the costs of
establishing, administering, and soliciting funds from its own employees
or members for a political committee or small donor committee.
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Colo. Const. art. XXVIII, § 2(5) (emphases added).
¶22 Not until the FCPA was amended in 2007 did Colorado’s campaign-finance laws
specifically address political organizations. See Ch. 289, 2007 Colo. Sess. Laws 1224.
That amendment added (1) an entry for “political organization” to the FCPA’s
definitions section and (2) a new section, 1-45-108.5, to require disclosures for political
organizations. Ch. 289, secs. 1, 3, §§ 1-45-103, -108.5, 2007 Colo. Sess. Laws 1224,
1224–25.
¶23 The 2007 amendment also added section 1-45-103(6)(c) to the FCPA definition of
“contribution,” almost mirroring subsections (I)–(III) of article XXVIII, section 2(5)(a),
but expanding them to apply to a “political organization.” Ch. 289, sec. 2, § 1-45-103,
2007 Colo. Sess. Laws 1224, 1225. Compare:
(c) “Contribution” also includes: (5)(a) “Contribution” means:
(I) Any payment, loan, pledge, gift, (I) The payment, loan, pledge, gift, or
advance of money, or guarantee of a loan advance of money, or guarantee of a loan,
made to any political organization; made to any candidate committee, issue
committee, political committee, small
donor committee, or political party;
(II) Any payment made to a third party on (II) Any payment made to a third party for
behalf of and with the knowledge of the the benefit of any candidate committee,
political organization; or issue committee, political committee, small
donor committee, or political party;
(III) The fair market value of any gift or (III) The fair market value of any gift or
loan of property made to any political loan of property made to any candidate
organization. committee, issue committee, political
committee, small donor committee or
political party;
....
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§ 1-45-103(6) (emphases added). Colo. Const. art. XXVIII, § 2(5) (emphases
added).
¶24 We conclude that only the FCPA definition applies to political organizations.
The FCPA specifically addresses political organizations, but article XXVIII does not.
And no subpart of the constitutional definition is generally applicable; every subpart
lists the specific class or classes to which it applies.
¶25 We disagree with the Secretary’s argument that the limitation in subsection 5(b)
of the constitutional definition applies to political organizations. True, the FCPA
definition incorporates the constitutional definition. See § 1-45-103(6)(a). But article
XXVIII, section 2(5)(b) explicitly lists the political entities to which the definition
applies, and “political organization” isn’t among them. See Colo. Const. art. XXVIII,
§ 2(5)(b) (“‘Contribution’ does not include services provided without compensation by
individuals volunteering their time on behalf of a candidate, candidate committee,
political committee, small donor committee, issue committee, or political party . . . .”
(emphasis added)). Had the legislature intended to extend the entire constitutional
definition to political organizations merely by incorporating the constitutional
definition into the FCPA definition, then it would not have bothered to expressly extend
three specific provisions of the constitutional definition to political organizations.
Compare § 1-45-103(6)(c)(I)–(III), with Colo. Const. art. XXVIII, § 2(5)(a)(I)–(III).
¶26 By the same logic, the ALJ erred by applying article XXVIII, section 2(5)(a)(IV) to
a political organization like Better Future. That subsection counts as a contribution
“[a]nything of value given, directly or indirectly, to a candidate for the purpose of
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promoting the candidate’s nomination, retention, recall, or election.” Colo. Const. art.
XXVIII, § 2(5)(a)(IV) (emphasis added). It applies exclusively to things given to
candidates, not to things given to other classes of political speakers like Better Future.
Even if the phrase “given . . . indirectly . . . to a candidate” could be read to sweep in
things given to other speakers supporting the candidate, context suggests the electorate
had something different in mind. Other provisions in the same series demonstrate that
where a meaning is intended to apply to multiple classes, it lists out those classes. See
Colo. Const. art. XXVIII, § 2(5)(a)(I)–(III). We therefore presume that section 2(5)(a)(IV)
also lists the only class to which it applies: “a candidate.”
¶27 Accordingly, whether Anderson’s 2014 services counted as a reportable
contribution for Better Future—a political organization—turns on the FCPA definition
of “contribution.” The court of appeals applied the FCPA definition and held that
donated legal services count as contributions under subsections (6)(b) or (6)(c)(I) of
section 1-45-103, and Better Future challenges that holding. We turn to those
subsections now.
C. Section 1-45-103(6)(b) Applies Only to Candidate
Committees
¶28 Section 1-45-103(6)(b) says:
“Contribution” includes, with regard to a contribution for which the
contributor receives compensation or consideration of less than equivalent
value to such contribution, including, but not limited to, items of
perishable or nonpermanent value, goods, supplies, services, or
participation in a campaign-related event, an amount equal to the value in
excess of such compensation or consideration as determined by the
candidate committee.
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(Emphasis added.)
¶29 Because the amount of the contribution is “determined by the candidate
committee,” Better Future argues that section 1-45-103(6)(b) applies only to candidate
committees, and we agree. We interpret statutes in a way that gives effect to every
word. Spahmer v. Gullette, 113 P.3d 158, 162 (Colo. 2005). Were this subsection to
apply to entities other than candidate committees, then the phrase “as determined by
the candidate committee” would be superfluous in those cases. We will not adopt such
a construction. See id. Thus, the plain meaning of the statute is that section
1-45-103(6)(b) applies only to candidate committees.
¶30 Watchdog points out that we should avoid constructions that would lead to
absurd results, see Pineda-Liberato v. People, 2017 CO 95, ¶ 22, 403 P.3d 160, 164, and it
argues that treating undercompensated services as a contribution when given to
candidate committees but not when given to other entities would be absurd.
¶31 But it is not absurd to make contribution laws stricter for candidate committees
than for other entities. “The hallmark of corruption is the financial quid pro quo:
dollars for political favors.” Fed. Election Comm’n v. Nat’l Conservative Political
Action Comm., 470 U.S. 480, 497 (1985). Quid pro quo corruption, or even just the
appearance of it, threatens the “integrity of our system of representative democracy,”
Buckley v. Valeo, 424 U.S. 1, 26–27 (1976). Given the significance of society’s interest in
preventing such corruption, the First Amendment tolerates limits on contributions to
candidates even when it prohibits limits for other political speakers. See Citizens
United v. Fed. Election Comm’n, 558 U.S. 310, 359 (2010). Because a candidate
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committee is comprised only of the candidate and those under the candidate’s
authority, see Colo. Const. art. XXVIII, § 2(3), this same interest in preventing the
appearance of quid pro quo corruption justifies defining contributions to candidate
committees more broadly than contributions to other political entities. Indeed, the
constitution itself defines “contribution” more broadly for candidates than it does for
other entities. Compare Colo. Const. art. XXVIII, § 2(5)(a)(I)–(III) (definitions applicable
to five types of entities), with § 2(5)(a)(IV) (definition applicable only to a “candidate”).
¶32 We conclude that undercompensated services to political organizations are not
contributions under section 1-45-103(6)(b). But could donated services be a “gift” under
section 1-45-103(6)(c)(I)? We consider that now.
D. The Term “Gift” Under Section 1-45-103(6)(c)(I) Means
Monetary Gift and Does Not Cover Donated Services
¶33 Under section 1-45-103(6)(c)(I), “contribution” includes “[a]ny payment, loan,
pledge, gift, advance of money, or guarantee of a loan made to any political
organization.” The court of appeals held that donated services could count as a “gift”
under this provision, but Better Future contends that “gift” here means only a monetary
gift.
¶34 The statute does not define “gift,” so we look to the ordinary meaning of the
word when read in context. See Roup v. Commercial Research, LLC, 2015 CO 38, ¶ 8,
349 P.3d 273, 276 (“When a statute does not define a term, we assume that the General
Assembly intended to give the term its usual and ordinary meaning.”); § 2-4-101, C.R.S.
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(2017) (“Words and phrases shall be read in context and construed according to the
rules of grammar and common usage.”).
¶35 The word “gift,” standing alone, could refer to uncompensated service. “Gift,”
as relevant here, is defined merely as “something given.” Gift, Webster’s New College
Dictionary (2005). The related definition of “give” is “to turn over the possession or
control of to someone without cost or exchange; make a gift of.” Give, Webster’s New
College Dictionary (2005) (emphasis added). It would not be unordinary to say that one
could “make a gift of” service.
¶36 But “gift” does not stand alone in section 1-45-103(6)(c)(I), and two aspects of the
statutory context suggest that the General Assembly used “gift” narrowly to mean a
monetary gift.
¶37 First, because the General Assembly deposited the word “gift” among monetary
terms, we infer that it meant monetary gift. “It is a familiar principle of statutory
construction that words grouped in a list should be given related meaning.” Third
Nat’l Bank v. Impac Ltd., Inc., 432 U.S. 312, 322 & n.16 (1977) (describing the
associated-words canon, or “noscitur a sociis”); Young v. Bright Sch. Dist. 27J, 2014 CO
32, ¶ 24, 325 P.3d 571, 579 (“Under noscitur a sociis, ‘a word may be known by the
company it keeps.’” (quoting Graham Cty. Soil & Water Conservation Dist. v. United
States ex rel. Wilson, 559 U.S. 280, 287 (2010)). For example, “if a statute is said to apply
to ‘tacks, staples, nails, brads, screws, and fasteners,’ it is clear from the words with
which they are associated that the word nails does not denote fingernails and that
staples does not mean reliable and customary food items.” Antonin Scalia & Bryan A.
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Garner, Reading Law: The Interpretation of Legal Texts 196 (2012). Of course,
fingernails and framing nails are apples and oranges; service gifts and monetary gifts
are not. But the canon does more than just rule out totally different meanings like
fingernails from clasping devices; it most commonly limits “a general term to a subset
of all the things or actions that it covers.” Id.¶38 The statute here lists words that refer to money: “payment, loan, pledge, gift,
advance of money, or guarantee of a loan.” § 1-45-103(6)(c)(I). While “loan” could be
used slightly more broadly to refer to property, it could not in any usual or ordinary
way refer to services. And although “pledge” in the sense of being “a promise,” pledge,
Webster’s New College Dictionary (2005), could refer to a pledge of service, it, like
“gift,” takes the common monetary meaning from the surrounding words. Therefore,
the word “gift” in this list is best read to mean a monetary gift.
¶39 Second, the definitional scheme suggests that “gift” in subsection (6)(c)(I) should
be construed narrowly; were we to construe “gift” in subsection (6)(c)(I) broadly
enough to cover non-monetary gifts, we would render subsection (6)(c)(III) superfluous.
Subsection (6)(c)(III) counts as a contribution the “fair market value of any gift or loan
of property.” If subsection (6)(c)(I) included the value of non-monetary gifts, then it
would swallow subsection (6)(c)(III). Because that construction would leave subsection
(6)(c)(III) meaningless, we avoid it. See Lente, ¶ 21, 406 P.3d at 833 (“Were we to
construe one term to swallow the other, or to be its equal, then the other term would be
superfluous. We avoid such constructions.”).
¶40 Therefore, we conclude section 1-45-103(6)(c)(I) does not include a gift of service.
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III. Conclusion
¶41 We hold that the uncompensated legal services at issue here are not
“contributions” to a political organization under Colorado’s campaign-finance laws.
Accordingly, the court of appeals erred in holding that Better Future was required to
report Anderson’s donated legal services. We reverse and remand for further
proceedings consistent with this opinion.
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