Common Sense Alliance v. Davidson ( 2000 )

Justice SCOTT,

dissenting:

“For of all sad words of tongue or pen, the saddest are these: ‘It might have been!’” These words ring as true in this case regarding a 1996 citizen initiative seeking campaign reform as when they were first penned by John Greenleaf Whittier.¹

I agree with the majority that in 1996 “[a] group of individuals in Pitkin County originally formed [Common Sense] Alliance ... for political purposes,” maj. op. at 749, and that “in 1997 and 1998, the group became active on a particular ballot issue by drafting and promoting an initiative.” Id. I also agree with the majority that “constitutional rights concerning freedom of association and freedom of speech are implicated” in laws imposing campaign finance reform. Maj. op. at 749. I further agree that the Fair Campaign Practices Act “imposes reporting and disclosure requirements on issue committees ... [and] sets out criminal sanctions for failure to comply with those requirements.” Id. at 749. However,-1 cannot agree with the majority that “the statute is insufficiently clear to include [Common Sense] Alliance within the reach of the issue committee definition.” Maj. op. at 749. Therefore, I must respectfully dissent.

I. The Purpose of Colorado’s Fair Campaign Practices Act: Sunlight and Public Disclosure

There is much to be said for the wisdom of Justice Louis Brandéis and the application of that wisdom here today: “Publicity is justly commended as a remedy for social ... [wrongs]. Sunlight is said to be the best of disinfectants, electric light the most efficient policeman.” Louis Brandeis, Other People’s Money and How the Bankers Use It 62 (Harper & Row 1967) (1914).

A.

By passing Colorado’s Fair Campaign Practices Act, the electorate most certainly intended to require those who “come together as partners, Mends, or companions” to affect the outcome of elections to disclose contributions and expenditures; our citizens sought nothing more and nothing less. By an overwhelming vote of 928,148 to 482,551, the Fair Campaign Practices Act was adopted through a citizen-initiated ballot measure in our 1996 general election.

Previously, citizens were unable to obtain sufficient campaign reform through efforts to petition them representatives in the political branches of government. Therefore, in 1996, our citizens took refuge from this failure to act through the Colorado Constitution and its reservation of the right of citizen initiative. See Colo. Const. art. V, § 1. Thus, citizens proposed and adopted reforms setting forth certain requirements for political “issue committees,” including notice and disclosure of independent expenditures, reporting of contributions and expenditures, and registering with the secretary of state.

To be sure, of course, these reforms constitute a modest disclosure requirement for candidate support committees and certain special interest groups, in particular issue committees that act to affect the outcome of Colorado elections. This campaign reform effort was straightforward. We are not here called upon to address the wisdom of or necessity for campaign finance reform. We are also not here to decide whether such reform is unconstitutional, the issue not certified to us but more properly remaining before the United States District Court, the Honorable John Kane presiding. Within the scope of our acceptance of certification, in my view we are only to disclose to the United States District Court what our citizens intended by answering the questions certified to and accepted by this court. Hence, I would leave questions of constitutional dimension or that have implications under the First Amendment of the United States Constitution for the United States District Court. I would not, in effect, attempt to usurp its authority by exceeding the scope of Colorado Appellate Rule 21.1, which limits our review to “questions of law of this state.”²

B.

In 1996, to make their actions and intent clear, “[t]he people of the state of Colorado” concluded and “declare[d] that large campaign contributions ... allow wealthy contributors and special interest groups to exercise a disproportionate level of influence over the political process.” § 1-45-102, 1 C.R.S. (1999) (emphasis added). Thus, in 1996, four years before candidates now running for national office would propose campaign finance reform as a national concern, the Colorado electorate concluded “that the interests of the public are best served by ... full and timely disclosure of campaign contributions, and strong enforcement of campaign laws.” Id. (emphasis added).

The purpose of such campaign reform is to secure the elective and political process and thus to protect the interests of citizens from undue influence by special interest groups. As was most recently stated by the United States Supreme Court addressing state regulation of elections and upholding such reforms, “[l]eave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.” Nixon v. Shrink Mo. Gov’t PAC, — U.S. -, 120 S.Ct. 897, 906, 145 L.Ed.2d 886 (2000).

Today, however, the majority’s judgment and its opinion, in my view, fail to fairly construe the intent of the electorate. I therefore cannot join in the majority’s result for at least two fundamental reasons. First, the majority obliterates the citizens’ plain effort to answer their “perception of impropriety,” simply in anticipation of legal issues not ripe for our resolution. Second, in its effort to construe our Fair Campaign Practices Act, the majority consciously reads out of the statute the term, “have associated themselves,” which in my view would cause any reasonable reader to conclude that Common Sense Alliance is an “issue committee.” That phrase, absent in the majority’s examination of our statute, otherwise cures the defect it finds in the plain and straightforward language. Finally, as noted above, the United States Supreme Court has most recently affirmed the authority of states to regulate political campaigns by the use of contribution limits, which by their nature must necessarily include contribution disclosure that the majority seeks to avoid. See Shrink Mo. Gov’t, 120 S.Ct. at 901 (“Buckley [v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), is] authority for ... state regulation” of political campaigns).

The majority denies the citizens of Colorado the full force and effect of their substantial and popular efforts at campaign reform.³ Further, in my view, the decision of the majority to “decline to give the statute [a] broad reading,” maj. op. at 749, to answer the statutory interpretation questions we agreed to address is unsound and its reliance upon the legislative history of a repealed act unpersuasive.

II. Certification under C.A.R. 21.1

A.

By accepting certification of the legal questions posed to us by the United States District Court, we agreed, in essence, to decide questions regarding the intent of the electorate when adopting section 1-45-103(8), 1 C.R.S. (1999). We undertook to decide whether, under the Fair Campaign Practices Act (FCPA), the people of Colorado intended to exclude from the definition of “issue committee,” and therefore except from disclosure requirements, an organization that admits that it is organized and operates today/‘for the purpose of accepting contributions and making expenditures to support or oppose ... ballot issue[s] or ballot ques-üon[s].” To meet its purpose it actively accepts contributions and makes expenditures to support or oppose ballot questions. Because “two or more persons ... associated themselves” to do so, I do not believe we are powerless to give effect to section 1^45-103(8) and the campaign reform that government failed to provide, but which citizens sought through the initiative process. Therefore, I cannot follow the analysis of the majority, which fails in obvious fashion to address the particular language of the statute that clearly includes the conduct of Common Sense Alliance (CS Alliance), the issue committee before us.

Under the Colorado Constitution the people have reserved to themselves the power to adopt legislation when their representatives are unable or refuse to so act. See Colo. Const. art. V, § 1. In light of that important reservation of authority, I find the minimal regulation here reasonable, especially in light of the Supreme Court’s decision in Nixon v. Shrink Missouri Government, despite the majority’s reliance, instead, upon Citizens for Responsible Government State Political Action Committee v. Buckley, 60 F.Supp.2d 1066 (D.Colo.1999). See maj. op. at 752 n. 7.

Unlike the majority, I would answer the first question in the affirmative. In doing so, I see the Fail’ Campaign Practices Act as a sufficient citizen effort merely to place into the sunlight the contributions of those with wealth and to turn on the light of public disclosure, placing in plain view the political expenditures of the powerful and others “associated” for that purpose. This, in my view, is reasonable self-governance that is neither too complex for us to understand nor so onerous as to unduly burden the rights of those who wish to affect the outcome of Colorado political elections.

B.

The majority is reluctant “to provide judicial answers to the questions left unanswered in the statute” in part because it concludes that “constitutional rights concerning freedom of association and freedom of speech are implicated” by the FCPA’s disclosure requirements. Maj. op. at 749. The constitutionality of the FCPA, however, is not the issue before us. That issue is pending before the federal district court. While the federal district court certified questions of state law to us, that certification did not abdicate the federal district court’s jurisdiction to decide the constitutional question that will then resolve the dispute in the federal, not our state, court.

C.A.R.-21.1 permits us to answer certified questions only “if there is involved in any proceeding before [the federal court] questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of [this court].” (Emphasis added.) If a certified question requires consideration of any law other than Colorado’s, we should not agree to answer it.

In this case, we agreed to determine whether, under Colorado law,

an association which was formed and operated for purposes other than “accepting contributions or making expenditures to support or oppose any ballot issue or ballot question” become[s] an “issue committee” as defined in C.R.S. § 1-45-103 if, at a future point in time, it engages in those activities with regard to a specific ballot issue or ballot question.

Implicitly, by accepting this certified question, we agreed to answer it. My vote to do so contemplated our resolution of this question solely on the basis of state law. See Campbell v. Orchard Mesa Irrigation Dist., 972 P.2d 1037, 1038 n. 3 (Colo.1998) (“Our answer to the certified question should be limited by the record and the question of law certified for determination.”); Garman v. Conoco, Inc., 886 P.2d 652, 661 (Colo.1994) (Erickson, J., concurring) (same); see also Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (“[O]ne court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.”) (internal quotation marks omitted).

In my view, our review of federal constitutional issues is beyond the scope of the questions certified and should not be applied, as it is a legal matter over which the federal district court’s determination is not subordinate to our holdings. See People n Barber, 799 P.2d 936, 940 (Colo.1990) (per curiam) (noting opposite proposition, that lower federal courts’ decisions are not conclusive on state courts, even on questions of federal law).

Thus, I cannot accept the majority’s decision to refrain from answering the very question certified to us by assuming the answer to the ultimate question before the district court.

III. The Majority Fails to Follow the Plain Language

The fundamental question in this proceeding is one of intent: By adopting section 1-45-103(8), did the people of Colorado intend to exclude from the definition of “issue committee” an organization that accepts contributions and makes expenditures to support or oppose a ballot issue or question solely because at some earlier date, prior to engaging in such conduct, it was originally formed for some other stated purpose? I cannot agree with the majority that they did.

The statute, by its plain language, reaches an “association]” of two or more persons when it accepts campaign contributions and makes expenditures to support or oppose a ballot issue or question in an upcoming election. See § 1-45-103(8) (providing that an issue committee exists when two or more persons “have associated” in order to support or oppose a ballot issue). My reading of section 1-45-103(8) and other provisions of the FCPA fails to disclose any exclusion from the definition of “issue committee” based on an organization’s prior activities.

The majority correctly notes that in order to determine the electorate’s intent in passing an initiated measure, we turn first to the plain language of the measure. See Zaner v. City of Brighton, 917 P.2d 280, 283 (Colo.1996) (“When construing a[n] [initiated] constitutional amendment courts must ascertain and give effect to the intent of the electorate adopting the amendment.”); Urbish v. Lamm, 761 P.2d 756, 760 (Colo.1988) (same); see also Bickel v. City of Boulder, 885 P.2d 215, 228 n. 10 (Colo.1994) (construing a statute adopted by initiative according to the same or analogous rules for construing a statute adopted by the General Assembly). Thus, “[i]f the [electorate’s] intent is immediately conveyed by the commonly understood and accepted meaning of the statutory language, we need look no further.” Farmers Ins. Exch. v. Bill Boom Inc., 961 P.2d 465, 469 (Colo.1998). Yet it is also true that statutes must be construed as a whole. See People v. District Court, 713 P.2d 918, 921 (Colo.1986) (Matthews).

The flaw in the majority’s reasoning is that it ignores entirely a critical phrase in the definition of issue committee — “associated for the purpose.” (Emphasis added.) An examination of that phrase leads to a construction of the statute that is no doubt closer to the electorate’s intention in adopting the initiative, which after all is our primary task in construing an initiated measure. See Colorado Common Cause v. Meyer, 758 P.2d 153, 160 (Colo.1988); Matthews, 713 P.2d at 921.

The statute itself does not define “associated.” We thus rely on the plain and ordinary meaning of that term. See Colorado Common Cause, 758 P.2d at 160. To associate, according to Webster’s Dictionary, is “to come or be together as partners, friends, or companions.” Webster’s Ninth New Collegiate Dictionary 110 (1985) (emphasis added). Thus, individuals who “have associated themselves” for a particular purpose would oi'di-narily include people who are currently pursuing, together as “friends[ ] or companions,” an identifiable purpose. Such “companions,” then, may pursue that purpose as a formal or informal organization or group, without the necessity of following corporate or other formalities, including carrying out that purpose without articles of association and without any stated purpose. This is true even when the two or more persons so associated originally formed the group for a different reason, but have now arrived at a different purpose for their association.

The majority is driven by a rationale that attempts to avoid allowing the actions of individual members or agents, acting together, to bind the organization to a particular purpose and subject it unwittingly to potential sanctions. It is basic Hornbook law that refutes the reasoning from which the majority result springs. Courts in most jurisdictions readily acknowledge the ability of an agent or a person with apparent authority to bind his or her principal to a third party. See Harold Gill Reuschlein & William A. Gregory, The Law of Agency and Partnership § 13, at 33 (2d ed.1990). Nonetheless, strict concepts of agency applicable to partnerships would not subject associations like CS Alliance to liability under the FCPA. “An agent may have the power to bind his principal in a contract with a third person although he may not have the authority to do so.” Id. Nevertheless, while this may be true under strict concepts of agency and contract law, I would not apply that notion under my reading of the FCPA.

Generally, then, unauthorized actions by a group within a larger group would not subject the entire group to the FCPA’s registration and disclosure requirements. Rather, the smaller group of associated persons would itself become an issue committee, with the concomitant registration and disclosure requirements. If, for example, a renegade group of five members of the Sierra Club decided, in the Sierra Club’s name, but without its authorization, to collect and spend money in support of a ballot question, actions taken in pursuit of that decision would not subject the entire Sierra Club to the FCPA’s registration and disclosure requirements. Only the smaller, renegade group would then be required to register as an issue committee and disclose its contributions and expenditures.

Our laws regarding unincorporated associations, including partnership and agency law, provide a useful analogy here. A partnership is formed upon “the association of two or more persons to carry on as co-owners of a business for profit,” regardless of whether the partners formalize their agreement with a written document. § 7-64-202(1), 2 C.R.S. (1999). Under long-standing Colorado law, a partnership is formed at the time of the agreement to associate; it requires no formal proceedings. See Yoder v. Hooper, 695 P.2d 1182, 1187 (Colo.App.1984), aff'd, 737 P.2d 852 (Colo.1987); see also Grau v. Mitchell, 156 Colo. 111, 114, 397 P.2d 488, 489 (1964) (defining partnership as a “contract, express or implied, between two or more persons ... to place their money, effects, labor[,] or skill ... into a business”) (emphasis added). Admittedly, the analogy to a partnership is not complete, as organizations like CS Alliance are not entrepreneurial enterprises. Nonetheless, these types of organizations, like partnerships, are unincorporated associations.

In sum, the term “associated” should be permitted its full force in the common usage, as clearly the citizens must have intended. I would find that each time two or more persons cause CS Alliance to change its goals or purpose and agree to accept contributions and make expenditures for purposes of supporting or opposing a ballot issue, the resultant association becomes an “issue committee.” As a consequence, the purpose of the original association would be irrelevant for purposes of determining whether or not at a later point in time the association is an issue committee.

Not only does this interpretation comport with accepted principles of statutory interpretation, it furthers what the people obviously intended in adopting the FCPA, an election reform act. Under the majority’s interpretation, all an organization need do to evade the reach of the FCPA is organize an association for a stated purpose other than opposing or supporting ballot questions, regardless of its actual conduct. I cannot conclude that this was the electorate’s intent. The statute itself declares that “the interests of the public are best served by ... full and timely disclosure of campaign contributions.” ⁴ § 1-45-102. At least with respect to “issue committees,” the majority’s holding will largely prevent the FCPA from achieving that goal.

IV. Legislative History of Prior Statute Should Not Apply to the Initiative

Understandably, the majority must look elsewhere to find support for its narrow construction of the definition of issue committee. Rather than look to the intent of the electorate, the majority must reach into the legislative history of the General Assembly’s Campaign Reform Act (CRA), which the citizen-initiated FCPA replaced. I find that the majority’s reliance is analytically flawed and particularly unfortunate for at least two reasons. First, the citizen initiative was adopted to repudiate the actions of the very legislation the majority now relies upon.

Second, the FCPA is not an amendment to the CRA. Rather, the FCPA is the result of a citizen initiative entirely replacing the General Assembly’s CRA. Although the citizen-drafters borrowed some of the General Assembly’s language, I would not, under these circumstances, assume that the intent of a prior General Assembly then could rightly be treated as “legislative history” for this citizen-initiated statute.

A.

Simply stated, in dealing with a legislative enactment, we would not treat a law passed by a subsequent General Assembly in this fashion, burdening it with the intent of a different General Assembly. Cf. United States v. Philadelphia Nat’l Bank, 374 U.S. 321, 348-49, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963) (refusing to infer the intent of an earlier legislature from the views of a subsequent one). Yet, the majority here encumbers this independent citizen initiative with the objectives of a prior General Assembly, one that led the citizens to use the initiative process because they were not satisfied with existing legislation. In my view, the statute should thus be interpreted as a separate act, not an amendment of the General Assembly’s legislation.

In any event, I do not agree with the majority that the legislative history of the CRA — assuming its relevance — compels the majority’s conclusion. The CRA, adopted by the General Assembly in 1974, did not use the term “issue committee,” See §§ 1-45-101 to -121, 1 C.R.S. (1975 Supp.). That concept instead was encompassed in the CRA’s definition of “political committee”: “'Political committee’ means any two or more persons who ... have associated themselves or cooperated for the purpose of accepting contributions ... or making expenditures to support or oppose a candidate for public office at any election or seek to influence the passage or defeat of any issue.” § 1-45-103(10), 1 C.R.S (1975 Supp.). Such associations under the CRA explicitly included those “formed principally for some other purpose insofar as [they] make[] contributions or contributions in kind or expenditures.” Id.

The majority concludes from the absence of this phrase and of the term “cooperated” in the current statutory definition of issue committee that the electorate intended to exclude organizations formed for other reasons from the reach of the FCPA. Again I disagree.

Even assuming that the electorate deliberately failed to include the term “cooperated” and the phrase concerning organizations formed principally for some other purpose from the act that it repealed, there is no evidence that the electorate intended to create the giant loophole in the statute that the majority creates today. The plain and ordinary definition of “associated” includes two or more persons who “cooperate” with one another for a specific purpose. See supra Part III. The electorate thus did nothing more than correct a redundancy by eliminating the word “cooperated” from the FCPA.

B.

More to the point, the drafters of the FCPA were likely eager to avoid the confusion created by the phrase “formed principally for some other purpose,” which the General Assembly included in the CRA. Interpreting that phrase in the CRA, this court held that ordinary, for-profit corporations contributing to political campaigns were “political committees” under the Act. See Colorado Common Cause, 758 P.2d at 163. Shortly thereafter, the General Assembly amended the statute to preclude such an interpretation. In doing so, the General Assembly excluded from the definition of “political committee” any “association, corporation, ... or other organization or group solely making contributions or contributions in kind to support or oppose a candidate for public office or to influence the passage or defeat of any issue.” Ch. 32, sec. 1, § 1-45-103, 1988 Colo. Sess. Laws 299. Even after this amendment, organizations formed principally for some other purpose were still subject to the CRA’s disclosure requirements to the extent that they collected money to be distributed to political campaigns. See id. (excluding from the CRA’s reach any organization “solely making contributions or contributions in kind to support or oppose a candidate for public office or to influence the passage or defeat of any issue” (emphasis added)).

The amendment to the CRA was necessary because that Act, as opposed to the FCPA, subjected an association to its registration and reporting requirements when the association accepted contributions or made expenditures in support of a candidate or issue. See § 1—45—103(10), 1 C.R.S. (1975 Supp.) (“‘Political committee’ means any two or more persons who are elected, appointed, or chosen or who have associated themselves ... for the purpose of accepting contributions ... or making expenditures.... ”). As a result, no association, regardless of its principal purpose, could contribute to a campaign without first registering as an issue committee.

The FCPA avoids that.result by simply using the word “and” instead of “or.” Under the FCPA, an association becomes an issue committee only if it accepts contributions and makes expenditures in support of or opposition to a ballot issue: “ ‘Issue committee’ means two or more persons who are elected, appointed, or chosen, or have associated themselves for the purpose of accepting contributions and making expenditures to support or oppose any ballot issue or ballot question.” § 1-45-103(8), 1 C.R.S. (1999) (emphasis added). Thus, an organization like the Adolph Coors Company — which Colorado Common Cause held was a political committee under the CRA, since it made expenditures in support of a ballot issue — does not become an issue committee unless it becomes a conduit for others’ contributions by accepting contributions and spending those funds for or against a ballot issue. Having solved the problem of exempting ordinary corporations from the FCPA’s registration and reporting requirements in this manner, the citizen-drafters may very well have omitted further language defining issue committee because they believed that it was unnecessary and unwise to include language that could be misinterpreted to include ordinary corporations.

V. Fair Campaign Practices Act and the Questions Certified

Hence, based on the plain language of the statute and the People’s declared intent in adopting that statute, I would answer the federal district court’s first certified question in the affirmative. Although CS Alliance was formed in 1996 for purposes other than accepting contributions and making expendí-tures to support or oppose a ballot issue, it later became an issue committee with respect to the Entrance to Aspen ballot issues. It is undisputed that on July 20,1998, CS Alliance was primarily engaged in accepting contributions and making expenditures to oppose or support a ballot issue, or that two or more of its members “associated themselves[ ] for the purpose of accepting contributions and making expenditures to support or oppose [a] ballot issue or ballot question.” § 1-45-103(8). By submitting its proposed ballot question to the secretary of state, CS Alliance manifested its intent to support its ballot question with contributions from the public. Indeed, the ALJ found that at that point CS Alliance had already begun to accept contributions and to make expenditures in support of its position on the Entrance to Aspen ballot issues. It was therefore incumbent upon CS Alliance to register with the secretary of state as an issue committee.

However, since it is the act of accepting contributions and making expenditures to oppose or support a ballot issue or question that subjects an issue committee to the disclosure requirements of the FCPA, I would hold that only those contributions accepted and expenditures made to oppose or support a ballot issue or question must be reported. Therefore, under my construction of the FCPA, CS Alliance need not disclose all of its contributions or contributors, nor all of its expenditures. Under this interpretation, which is consistent with the objects and purposes of the almost one million electors voting for reform, an issue committee need disclose only those contributions accepted and expenditures made in support of or opposition to the ballot issue or issues that subject it to the FCPA’s registration and reporting requirements.

Therefore, I would answer the second certified question by holding that an organization becomes an issue committee when two or more persons have “associated” to support or oppose a ballot issue.

I would further hold, in answering the third certified question, that such organizations need only report those contributions accepted and expenses made in support of or opposition to the relevant ballot issue. In my view, such an interpretation and construction would not necessitate, in this context, that we interpret the statute “broadly,” maj. op. at 749. These answers, I believe, best interpret the FCPA based on its language and, most importantly, defer to the unquestioned and modest intent of the electorate.

VI. Conclusion

Accordingly, and for the reasons set forth above, I respectfully dissent.

I am authorized to say that Justice MARTINEZ joins in this dissent.

1 . John Greenleaf Whittier, "Maud Muller” in The Complete Poetical Worlcs of Whittier 47-48 (1894).

2 . C.A.R. 21.1 provides in relevant part: "The Supreme Court may answer questions of law certified to it by [a federal court] ... if there is involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court.”

3 . This campaign finance reform received the highest number of votes of any of the twelve issues on the statewide ballot. See State of Colorado Abstract of Votes Cast 1995-1996, published by Victoria Buckley, Secretary of State.

4 . Because it included issue committees in its list of associations that must register and report contributions and expenditures, we presume that the electorate intended to include in its declaration of purpose issue campaigns as well as candidate campaigns.