Campaign Integrity Watchdog v. Alliance for a Safe and Independent Woodmen Hills , 409 P.3d 357 ( 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.
5
6 ADVANCE SHEET HEADNOTE
7 January 29, 2018
8
9 2018 CO 70
1 No. 17SC149, Campaign Integrity Watchdog v. Alliance for a Safe and Independent
2 Woodmen Hills—Election Law—Constitutional Law—Political Speech
3
4 The supreme court holds that a political committee must report payments to a
5 law firm for its legal defense as contributions, but not as expenditures. “[E]xpenditures
6 . . . and obligations” under section 1-45-108(1)(a)(I), C.R.S. (2017), are limited to
7 payments and obligations for expressly advocating the election or defeat of a candidate;
8 payments for legal defense are not for express electoral advocacy. But payments to a
9 third-party law firm for a political committee’s legal defense count as reportable
0 contributions because they are payments “made to a third party for the benefit of any . .
1 . political committee,” Colo. Const. art. XXVIII, § 2(5)(a)(II).
2 The court reverses the Administrative Law Judge’s determination that the
3 contribution-reporting requirement is unconstitutional as applied to Alliance. Under
4 Buckley v. Valeo, 424 U.S. 1, 61–68 (1976), for political committees like Alliance whose
5 major purpose is influencing elections, the governmental interests in political
6 transparency and preventing corruption justify the First Amendment burdens of
7 reporting and disclosure. It makes little difference that the payments here were made
8 post-election and for legal defense; elections are cyclical and money is fungible.
1 The Supreme Court of the State of Colorado
2 2 East 14th Avenue • Denver, Colorado 80203
3 2018 CO 74 Supreme Court Case No. 17SC149
5 C.A.R. 50 Certiorari to the Colorado Court of Appeals
6 Court of Appeals Case No. 16CA280
7 Office of Administrative Courts Case No. OS 2015-0014
8 Honorable Robert N. Spencer, Administrative Law Judge
9 Petitioner:
0 Campaign Integrity Watchdog,
1 v.
2 Respondents:
3 Alliance for a Safe and Independent Woodmen Hills; and Colorado Secretary of State.
4 Order Affirmed in Part and Reversed in Part
5 en banc
6 January 29, 2018
7
8 Authorized Representative of Petitioner:
9 Matthew Arnold
0 Denver, Colorado
1
2 Attorneys for Respondent Alliance for a Safe and Independent Woodmen Hills:
3 Hale Westfall, LLP
4 Ryan R. Call
5 Allan B. Hale
6 Richard A. Westfall
7 Peter J. Krumholz
8 Denver, Colorado
9
0 Attorneys for Respondent Colorado Secretary of State:
1 Cynthia H. Coffman, Attorney General
2 Matthew D. Grove, Assistant Solicitor General
3 Grant T. Sullivan, Assistant Solicitor General
4 Denver, Colorado
5
6
7 JUSTICE HOOD delivered the Opinion of the Court.
¶1 Alliance for a Safe and Independent Woodmen Hills bought ads and
social-media coverage in an election. Campaign Integrity Watchdog filed a complaint
with the Colorado Secretary of State against Alliance, alleging that Alliance failed to
comply with Colorado’s campaign-finance laws requiring political committees to report
contributions and expenditures. An Administrative Law Judge, or ALJ, ultimately
ordered Alliance to pay fines and register as a political committee.
¶2 Alliance appealed the campaign-finance decision and defended itself in a related
defamation suit, racking up hundreds of dollars in court costs and thousands in legal
fees. Alliance didn’t report those legal expenses. So, Watchdog filed another
campaign-finance complaint, asserting that Alliance had received contributions to pay
the legal expenses and should have reported both the contributions and the spending.
¶3 The ALJ concluded that the legal expenses were not reportable as expenditures
but were reportable as contributions. Nonetheless, it ruled that the
contribution-reporting requirement was unconstitutional as applied to Alliance for its
post-election legal expenses. Watchdog appealed the ALJ’s determinations regarding
the reporting requirements, and the court of appeals asked us to take the appeal directly
under C.A.R. 50. We accepted jurisdiction, in part because this case is related to another
that we decide today: Campaign Integrity Watchdog v. Coloradans for a Better Future,
2018 CO XXX, ___ P.3d ___.
¶4 We affirm the ALJ’s decision that the legal expenses were not expenditures but
were contributions under Colorado law. First, section 1-45-108(1)(a)(I), C.R.S. (2017),
requires political committees to report spending only for express advocacy for the
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election or defeat of a candidate, and legal expenses do not constitute such express
advocacy. Second, because a payment to a third party for a political committee’s legal
defense is a payment “for the benefit” of the political committee, it counts as a
contribution under article XXVIII, § 2(5)(a)(II).
¶5 However, we reverse the ALJ’s determination that the reporting requirement is
unconstitutional as applied to Alliance for its legal expenses. The Supreme Court of the
United States has consistently upheld disclosure and reporting requirements for
political committees that exist primarily to influence elections. It makes no difference
here that the contributions were not used to directly influence an election—any
contribution to a political committee that has the major purpose of influencing an
election is deemed to be campaign related and thus justifies the burden of disclosure
and reporting.
¶6 Accordingly, we affirm the ALJ’s decision in part and reverse in part.
I. Facts and Procedural History
¶7 Alliance for a Safe and Independent Woodmen Hills (“Alliance”) was
incorporated in the run-up to a 2014 Woodmen Hills Metropolitan District Board of
Directors’ election. Alliance raised funds and then sent postcards and established a
Facebook page, all undermining one of the board candidates, Ron Pace. Campaign
Integrity Watchdog (“Watchdog”), Ron Pace, and another Woodmen Hills resident filed
complaints about Alliance with the Colorado Secretary of State (the “Secretary”) under
article XXVIII, section 9(2)(a) of the Colorado Constitution. Watchdog alleged, among
other things, that Alliance should have but failed to (1) register as a political committee
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and (2) report certain contributions and expenditures. As required, the Secretary
referred the complaints to the Office of Administrative Courts, where they were
consolidated.
¶8 An Administrative Law Judge (“ALJ”) held a hearing and then decided that
Alliance had violated the Fair Campaign Practices Act, §§ 1-45-101 to -118, C.R.S. (2017)
(“FCPA”), by failing to (1) register as a political committee and (2) file contribution and
expenditure reports. The ALJ fined Alliance $9650 and ordered it to register and file the
missing reports. Alliance filed a notice of appeal and several motions, but eventually
withdrew its appeal.
¶9 Meanwhile, Mr. Pace had also sued Alliance and other defendants for
defamation and negligence based on Alliance’s campaign efforts. After several months
of litigation, the district court granted Alliance’s motion to dismiss the suit and
awarded Alliance attorney fees. Alliance submitted a bill of fees and costs claiming
about $42,000 in attorney fees, supported by a law firm’s billing statements showing
charges and payments for defending the defamation case. The source of the payments
had been redacted from the copies of the statements submitted.
¶10 Next, Watchdog filed the complaint at issue here, arguing Alliance (1) should
have but failed to report its legal expenses for appealing the first ALJ decision and for
defending the defamation case as contributions, (2) should have but failed to report
those same expenses as expenditures or disbursements, and (3) had exceeded the
contribution limit for political committees. The complaint was referred to an ALJ, and
the Secretary intervened to submit a brief in support of Alliance.
4
¶11 First, the ALJ considered whether Alliance was required to report the legal
expenses as a contribution. Watchdog pointed out that the constitution counts as a
contribution “[a]ny payment made to a third party for the benefit of any . . . political
committee,” Colo. Const. art. XXVIII, § 2(5)(a)(II), and it argued that payments to the
court and the law firm as part of Alliance’s legal defense fit the plain language of the
definition. Warning of constitutional problems, Alliance and the Secretary asked the
ALJ to construe the provision narrowly to include only payments made for the purpose
for which the political committee was formed—influencing elections. They argued that
post-election legal expenses do not serve that purpose.
¶12 The ALJ concluded that the provision was not susceptible of Alliance’s narrow
construction and held that the definition applied to the legal expenses, but it ruled for
Alliance all the same. It held that requiring Alliance to report post-election legal
expenses as contributions would violate Alliance’s First Amendment rights under the
United States Constitution. For the same reason, the ALJ concluded that a contribution
cap was unconstitutional as applied to Alliance’s post-election legal expenses.
Therefore, Alliance was not required to report the legal expenses as a contribution.
¶13 Nor, the ALJ held, was Alliance required to report the legal expenses as
expenditures. The constitution defines “expenditure” narrowly as spending “for the
purpose of expressly advocating the election or defeat of a candidate.” Colo. Const. art.
XXVIII, § 2(8)(a) (emphasis added). And, as the ALJ noted, express advocacy under
section 2(8)(a) has a still narrower meaning: “speech that explicitly advocates for the
election or defeat of a candidate through the use of the ‘magic words’ set out in
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[Buckley v. Valeo, 424 U.S. 1, 44 n.52 (1976)]1 or substantially similar synonyms.” Colo.
Ethics Watch v. Senate Majority Fund, LLC, 2012 CO 12, ¶ 41, 269 P.3d 1248, 1259. The
ALJ concluded that Alliance’s spending for legal expenses after the election “was clearly
not for the purpose of expressly advocating the election or defeat of a candidate.”
¶14 Watchdog appealed the ALJ’s determinations regarding the reporting
requirements,2 and the court of appeals asked us to accept the case directly under
C.A.R. 50. We accepted jurisdiction, in part because this case is related to another case
for which we had already granted certiorari, Campaign Integrity Watchdog v.
Coloradans for a Better Future, 2018 CO XXX. Both involved the question of whether
legal services constitute a “contribution” under Colorado’s campaign-finance laws.
II. Analysis
¶15 We begin with the standard of review and principles of interpretation. Next, we
describe Colorado’s campaign-finance-law scheme and how a registered political
1This famous footnote in Buckley provided the following examples of express advocacy
that have since been labeled the “magic words”: “‘vote for,’ ‘elect,’ ‘support,’ ‘cast your
ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’” 424 U.S. at 44 n.52.
2 Watchdog did not appeal the ALJ’s determination that the contribution cap is
unconstitutional as applied to Alliance, so we do not consider that issue. Watchdog
raises one other issue that we will not consider at length—whether the ALJ erred by
failing “to address substantiated allegations of perjury.” It is the province of the
executive branch, not the judicial branch, to prosecute crimes like perjury. People v.
Dist. Court, 632 P.2d 1022, 1024 (Colo. 1981). Assuming, without deciding, that
imposing sanctions for courtroom perjury may fall within the court’s broad discretion
to cite contempt, see People v. Aleem, 149 P.3d 765, 781 (Colo. 2007), we perceive no
abuse of discretion here.
6
committee like Alliance fits into it. We then turn to whether Alliance’s legal expenses
counted either as expenditures or contributions.
¶16 First, we determine that Alliance was not required to report its legal expenses as
spending. Political committees are required to report “expenditures made, and
obligations entered into.” “Expenditures” means only express advocacy, and
“obligations” here means obligations to make expenditures. A payment for legal
expenses is not a payment for express advocacy.
¶17 Second, we agree with the ALJ that the payments to courts and attorneys for
Alliance’s legal defense were payments “to a third party for the benefit of” Alliance and
were therefore contributions under Colorado Constitution article XXVIII, § 2(5)(a)(II).
We conclude that the text cannot bear the narrower construction urged by Alliance.
¶18 Finally, we conclude that the ALJ erred by determining the reporting
requirement is unconstitutional as applied to Alliance for its legal expenses. Any
contribution to a political committee like Alliance, whose major purpose is to influence
elections, is deemed to be campaign related and thus justifies the burden of reporting
and disclosure.
A. Standard of Review and Principles of Interpretation
¶19 We review questions of constitutional and statutory interpretation de novo.
Gessler v. Colo. Common Cause, 2014 CO 44, ¶ 7, 327 P.3d 232, 235.
¶20 In construing statutes and citizen initiatives, we attempt 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,
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832 (citizen initiative). We read words and phrases in context, § 2-4-101, C.R.S. (2017),
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. Overview of Colorado Campaign-Finance Laws Applicable Here
¶21 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 enables private enforcement of
campaign-finance law. The FCPA covers more of the same ground. Finally, the
Secretary promulgates additional campaign-finance rules. Dep’t of State, 8 Colo. Code
Regs. 1505-6 (Dec. 15, 2017).
¶22 We will treat Alliance as a “political committee” because that is how it is
registered and its status is not at issue in this case. “‘Political committee’ means any
person, other than a natural person . . . that [has] accepted or made contributions or
expenditures in excess of $200 to support or oppose the nomination or election of one or
more candidates.” Colo. Const. art. XXVIII, § 2(12)(a). Alliance and the Secretary point
out that there is no evidence that Alliance coordinated with a candidate, and Colorado’s
campaign-finance laws suggest committees that make only independent expenditures
and do not coordinate with a candidate should not be treated as political committees.
See § 1-45-103.7(2.5), C.R.S. (2017) (“An independent expenditure committee shall not
be treated as a political committee and, therefore, shall not be subject to the
requirements of section 3(5) of article XXVIII of the state constitution.”); Dep’t of State,
8
8 Colo. Code Regs. 1505-6(1.7) (Dec. 15, 2017) (“An Independent expenditure committee
differs from a political committee in that an independent expenditure committee may
not directly contribute to a candidate committee or political party and may not
coordinate its campaign-related expenditures with a candidate, candidate committee, or
political party.”). But because Alliance was adjudicated to be a political committee in
the first campaign-finance proceeding, and because it did not challenge that
classification either on appeal in the first proceeding or at any stage of this proceeding,
its classification as a political committee is not at issue now. 3
¶23 Both the state constitution and the FCPA impose requirements on political
committees. The constitution limits the amount of contributions a political committee
can receive in a house-of-representatives election cycle. Colo. Const. art. XXVIII, § 3(5).
The FCPA requires political committees to file reports disclosing expenditures and
contributions. § 1-45-108, C.R.S. (2017).
C. Alliance Was Not Required to Report Spending on Legal Services
¶24 Under the FCPA, “all . . . political committees . . . shall report . . . expenditures
made, and obligations entered into by the committee.” § 1-45-108(1)(a)(I).
3 In its motion to dismiss the complaint in this proceeding, Alliance included a footnote
expressing “reservation” about its classification as a political committee, but went on to
describe the issue as “not relevant to this Motion” and “beyond the scope of the present
Complaint.” Alliance included a similar footnote expressing the same “reservation[]” in
its briefing on appeal, but acknowledging that the issue “may be res judicata.” The
Secretary, likewise, included a footnote noting the issue but acknowledging that it “may
be res judicata.” Because Alliance effectively abandoned the issue, we need not address
whether Alliance would have been precluded from raising it in this proceeding.
9
¶25 The ALJ correctly determined that Alliance’s spending on legal expenses did not
qualify as an “expenditure” under campaign-finance law. The meaning of expenditure
is limited to spending for “expressly advocating” the election or defeat of a candidate,
Colo. Const. art. XXVIII, § 2(8)(a), and express advocacy is limited further still to
advocacy by use of Buckley’s “magic words” or substantially similar synonyms, Colo.
Ethics Watch, ¶ 41, 269 P.3d at 1259; see Buckley, 424 U.S. at 44 n.52. Money spent for
legal expenses is not spent for expressly advocating the election or defeat of a candidate
and therefore is not an expenditure.
¶26 That’s as far as the ALJ went, but Watchdog argues that more analysis is
necessary because the FCPA requires reporting of more than just “expenditures.”
Political committees must report “expenditures made, and obligations entered into by
the committee.” § 1-45-108(1)(a)(I) (emphasis added). Watchdog argues that the phrase
“obligations entered into” extends beyond express advocacy and sweeps in any time a
committee agrees to incur debt, such as when Alliance commissioned legal services.
¶27 For two reasons, we conclude that the phrase “obligations entered into” as used
in section 1-45-108(1)(a)(I) includes only obligations entered into for making
expenditures. First, we avoid absurd interpretations. See Pineda-Liberato v. People,
2017 CO 95, ¶ 22, 403 P.3d 160, 164. And it would be absurd to require reporting of all
obligations to spend money regardless of purpose yet to require reporting of money
actually spent only for a single narrow purpose—express advocacy. Second, the FCPA
ties the meaning of obligation to expenditures when it expressly defines “obligating” to
mean an agreement to make, or indirect provision of, an “independent expenditure.”
10
See § 1-45-103(12.7), C.R.S. (2017) (defining “obligating”). Although this definition does
not necessarily apply to all of a political committee’s obligations, some of which might
be coordinated with a candidate and therefore not “independent,” the definition
reinforces our understanding that the legislature intended to treat obligations no more
broadly than it did actual spending.
¶28 Watchdog contends that we should defer to a rule promulgated in 2015 by the
Secretary that suggests a different result. At the time Watchdog filed the complaint in
this case, the Secretary had promulgated a rule interpreting the statutory phrase
“expenditures made, and obligations entered into” as meaning “all committee-related
disbursements.” Dep’t of State, 8 Colo. Code Regs. 1505-6(1.6) (Dec. 15, 2015).4 Under
this rule, argues Watchdog, payments for legal services qualify as “expenditures made,
and obligations entered into.”
¶29 The 2015 rule does not alter our result. To the extent the rule can be read to
extend beyond expenditures and obligations for expenditures, such a reading conflicts
with the statute’s text as we have interpreted it, and it is therefore void. See
§ 24-4-103(8)(a), C.R.S. (2017) (“Any rule . . . which conflicts with a statute shall be
void.”); Hanlen v. Gessler, 2014 CO 24, ¶ 35, 333 P.3d 41, 49 (“[T]he Secretary lacks
authority to promulgate rules that conflict with statutory provisions.”).
4 The rule defining “expenditures made, and obligations entered into” has since been
rescinded. Dep’t of State, 8 Colo. Code Regs. 1505-6(1) (Dec. 15, 2017) (omitting
definition of “expenditures made, and obligations entered into”).
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¶30 We affirm the ALJ’s determination that Alliance was not required to report the
legal expenses as an expenditure or obligation. Next we consider whether the FCPA
required Alliance to report them as a contribution.
D. Money Paid to Third Parties for Alliance’s Legal Defense
Was a Contribution Under the FCPA
¶31 In addition to expenditures, the FCPA requires political committees to report
“their contributions received.” § 1-45-108(1)(a)(I). Under the FCPA, “‘[c]ontribution’
shall have the same meaning as set forth in section 2(5) of article XXVIII of the state
constitution.” § 1-45-103(6)(a), C.R.S. (2017). The constitutional definition of
“contribution” includes “[a]ny payment made to a third party for the benefit of any
. . . political committee.” Colo. Const. art. XXVIII, § 2(5)(a)(II).
¶32 The parties dispute whether payments to a law firm to defend Alliance in a tort
suit count as a reportable contribution under article XXVIII, section 2(5)(a)(II).
Watchdog argues, and the ALJ held, that the payments to the law firm—a third
party—for Alliance’s legal defense—a benefit—unavoidably fall within section
2(5)(a)(II). The ALJ then went on to hold the provision unconstitutional as applied to
Alliance. Alliance and the Secretary contend we should construe the provision
narrowly to avoid the constitutional problem. They ask us to look to the purposes of
article XXVIII, the campaign-finance amendment, and to construe the provision to mean
“any payment made to a third party for the benefit of any . . . political committee” for
the purpose of influencing an election. If we accept that interpretation, they ask us to
12
go a step further and hold that Alliance’s post-election legal expenses were not made
for the purpose of influencing an election.
¶33 We agree with the ALJ that the text of section 2(5)(a)(II) cannot bear the narrow
purpose limitation Alliance asks us to give it. Although subpart (II) uses words of
purpose to limit the payments to third parties that count as contributions, the ones it
uses are broad: “for the benefit . . . of any political committee.” Id. (emphasis added).
And a comparison to neighboring subparts demonstrates that this broad language was
deliberate. Subpart (IV) expressly contains the narrow purpose limitation that Alliance
would have us read into subpart (II): “Anything of value given, directly or indirectly,
to a candidate for the purpose of promoting the candidate’s nomination, retention,
recall, or election.” Colo. Const. art. XXVIII, § 2(5)(a)(IV) (emphasis added). So, where
one of the subparts applies only to a narrower set of purposes, it says so. Subpart (II)
broadly says that it applies to payments “for the benefit” of political committees, and
we must infer from context that it means what it says.
¶34 Applying the plain language of section 2(5)(a)(II) to the record here, we conclude
that Alliance’s post-election legal expenses were contributions. Because the law firm
that defended Alliance and the court of appeals were both third parties in relation to
Alliance, the payments of filing fees to the court and of legal fees to the law firm were
“payment[s] made to a third party,” Colo. Const. art. XXVIII, § 2(5)(a)(II). And the
payments were “for the benefit,” id., of Alliance because they furthered Alliance’s legal
defense.
13
¶35 Because the payments of Alliance’s legal expenses were “contribution[s]” to
Alliance under section 2(5)(a)(II), Alliance was required to report them as contributions
under section 1-45-108(1)(A)(I).
¶36 The ALJ reached this same conclusion, but then proceeded to hold that the
reporting requirement was unconstitutional as applied to Alliance’s post-election legal
expenses. We turn now to the as-applied constitutional question.
E. The Contribution Reporting Requirement Is Not
Unconstitutional as Applied to Alliance for Legal Expenses
¶37 Although the ALJ recognized that Buckley upheld reporting and disclosure
requirements for political committees, it determined that the governmental interests
justifying the constitutional burdens of reporting in Buckley applied with less force to
Alliance’s post-election legal expenses. It reasoned that such “contributions” were too
far removed from electoral advocacy to be of legitimate interest to the government or
the electorate. It therefore held the reporting requirements unconstitutional as applied
to Alliance.
¶38 Requiring reporting and disclosure for campaign activities burdens the First
Amendment freedom of association and, to a lesser degree, the freedom of speech. See
Buckley, 424 U.S. at 64; Citizens United v. Fed. Election Comm’n, 558 U.S. 310,
366–67 (2010). The burden on speech is limited because reporting and disclosure
requirements “impose no ceiling on campaign-related activities,” Citizens United, 558
U.S. at 366 (quoting Buckley, 424 U.S. at 64), and “do not prevent anyone from
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speaking,” id. (quoting McConnell v. Fed. Election Comm’n, 540 U.S. 93, 201 (2003),
overruled on other grounds by Citizens United).
¶39 Because they burden these constitutional freedoms, campaign-finance reporting
and disclosure requirements must survive “exacting scrutiny.” Buckley, 424 U.S. at 64.
That standard “requires a ‘substantial relation’ between the disclosure requirement and
a ‘sufficiently important’ governmental interest.” Citizens United, 558 U.S. at 366–67
(quoting Buckley, 424 U.S. at 64, 66).
¶40 Applying such scrutiny, the Court in Buckley upheld reporting and disclosure
requirements for political committees very similar to those at issue here. See Buckley,
424 U.S. at 61–68. The Court recognized that disclosure and reporting requirements
might deter some people from contributing and might expose contributors to
harassment or retaliation, id. at 68, but it decided those burdens were justified by three
governmental interests, id. at 66–68. First, disclosure provides valuable information by
showing the electorate where political money comes from and how it is spent. Id. at
66–67. “The sources of a candidate’s financial support also alert the voter to the
interests to which a candidate is most likely to be responsive and thus facilitate
predictions of future performance in office.” Id. at 67. Second, disclosure prevents
corruption and the appearance of corruption by exposing to light those who would
attempt to purchase legislative favors. Id. Third, reporting requirements help gather
the data necessary to detect violations of contribution caps. Id. at 67–68. As for the
relation between these governmental interests and the reporting requirements, the
Court explained that disclosure and reporting requirements are the “least restrictive
15
means of curbing the evils of campaign ignorance and corruption that Congress found
to exist.” Id. at 68.
¶41 The same rationale carried the day more than thirty years later in Citizens
United, when the Court once again upheld disclosure and reporting requirements for
independent electioneering groups. 558 U.S. at 367–70. The Court went so far as to say
that the informational interest alone justified the requirement that independent groups
disclose their electioneering activities. Id. at 369.5
¶42 The ALJ decided that the contribution here—payment for post-election legal
expenses—was too far removed from campaign spending to be controlled by Buckley
and Citizens United. It reasoned that none of Buckley’s three governmental interests
applied to “contributions that are not intended to influence an election.”
¶43 But, as Buckley explained, the activities of a political committee whose major
purpose is to influence elections “are, by definition, campaign related.” 424 U.S. at 79.
The ALJ found that Alliance was formed for the purpose of influencing the outcome of
the Woodmen Hills election, and Alliance does not dispute that characterization. Under
Buckley’s logic, then, because Alliance’s major purpose is to influence an election,6 any
contribution to Alliance is campaign related.
5 The Citizens United Court left room for an as-applied challenge based on a showing
that there is a “reasonable probability that the group’s members would face threats,
harassment, or reprisals if their names were disclosed.” 558 U.S. at 370. But Alliance
has made no such showing here.
6The ALJ concluded that Buckley’s “by definition” rationale couldn’t apply to Alliance
because Colorado law defines “political committee” more broadly than the “major
purpose” definition at issue in Buckley. But Alliance fits Buckley’s major-purpose
16
¶44 It makes little difference that the contribution at issue here (1) occurred
post-election and (2) did not directly serve to influence a campaign. As Watchdog
points out, elections are cyclical and money is fungible. Although one election may
have passed, more will come. Cf. id. at 67 (“This exposure [by required disclosure] may
discourage those who would use money for improper purposes either before or after
the election.” (emphasis added)). Further, the interests identified in Buckley apply to
any contribution to a group that primarily serves to influence elections, even a
contribution earmarked for non-campaign purposes like legal expenses. The electorate
benefits from knowing “the interests to which a candidate is most likely to be
responsive,” id., and one could reasonably infer that the candidate Alliance supported
would be responsive to the contributor that defended Alliance to the tune of $42,000.
Further, disclosure of the contribution might deter the candidate from being overly
responsive to the contributor, and would help the electorate detect any such corruption
that occurred. See id.
¶45 We conclude that the reporting requirements of section 1-45-108(1)(a)(I) are not
unconstitutional as applied to Alliance.
III. Conclusion
¶46 We affirm the ALJ’s determinations that Alliance’s post-election legal expenses
(1) were not reportable expenditures but (2) did qualify as “contribution[s]” under
definition, and that is enough here. Whether the Colorado definition extends to other
organizations that don’t have the major purpose of influencing elections might matter
in a facial challenge but is irrelevant as applied here to Alliance.
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article XXVIII, section 2(5)(a)(II) of the Colorado Constitution. We reverse the ALJ’s
determination that the FCPA’s reporting requirements are unconstitutional as applied
to Alliance for its “contribution” of payments for post-election legal expenses. We
remand for further proceedings consistent with this opinion.
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