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Brief of Secretary of State in 10th Circuit case of Citizens United v. Gessler
Citation preview
14-1387 IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT CITIZENS UNITED, a Virginia Non-Stock Corporation, Plaintiff - Appellant, v. SCOTT GESSLER, in his official capacity as Secretary of State of the State of Colorado; SUZANNE STAIERT, in her official capacity as Deputy Secretary of State of the State of Colorado, Defendants-Appellees, and COLORADO DEMOCRATIC PARTY, et al.,
Intervenors-Defendants.
On Appeal from the United States District Court
For the District of Colorado The Honorable R. Brooke Jackson
District Judge D.C. No. 1:14-CV-02266-RBJ
DEFENDANTS-APPELLEES’ BRIEF
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TABLE OF CONTENTS
PAGE
i
STATEMENT OF THE ISSUES ............................................................... 4
STATEMENT OF THE CASE .................................................................. 5
I. Nature of the case ............................................................................ 5
II. Course of proceedings ....................................................................... 7
LEGAL FRAMEWORK ............................................................................. 7
STATEMENT OF FACTS ....................................................................... 13
SUMMARY OF ARGUMENT ................................................................. 15
STANDARD OF REVIEW....................................................................... 17
ARGUMENT ........................................................................................... 19
I. The district court correctly reviewed Colorado’s disclosure laws under exacting scrutiny.. ....................................................... 19
A. Compliance with Colorado’s disclosure laws will not prevent or chill Citizen United’s speech. ..................................... 19
B. Colorado’s disclosure laws do not discriminate based on the speaker’s identity or the speech’s viewpoint or content. ............. 21
C. Exacting scrutiny applies even if the challenged provisions do discriminate based on identity of the speaker. ....................... 23
D. Colorado’s disclosure requirements are analogous to “time, place, and manner” restrictions on speech, to which a relaxed standard of scrutiny also applies. ................................... 28
E. The district court correctly applied exacting scrutiny to Plaintiff’s challenge. ..................................................................... 31
II. Under strict scrutiny, the evidence demonstrates that Colorado’s disclosure laws are narrowly tailored to achieve the compelling governmental interest of ensuring an informed electorate and deterring corruption or its appearance. .................................................................................... 32
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ii
A. Ensuring an informed electorate and preventing corruption are both compelling state interests in the disclosure context. .......................................................................................... 33
B. Assuming arguendo strict scrutiny applies, Colorado’s press exemption is narrowly tailored to achieve the foregoing interests. ....................................................................... 35
C. Colorado’s disclosure laws appropriately balance the competing interests at stake by imposing only a minimal burden on political speakers. ....................................................... 43
III. Because Citizens United satisfied none of the elements for a preliminary injunction, the district court properly denied its motion. ............................................................................................ 47
A. Citizens United failed to demonstrate a substantial likelihood of success on the merits. .............................................. 47
B. Citizens United has not demonstrated that it would suffer irreparable harm in the absence of an injunction. ...................... 50
C. The evidence demonstrates that a preliminary injunction would run against the public interest and, therefore, the balance of harms favor the State. ................................................ 51
CONCLUSION ........................................................................................ 52
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TABLE OF AUTHORITIES
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iii
CASES
American Target Advertising, Inc. v. Giani, 199 F.3d 1241 (10th Cir. 2000) .............................................................................................. 29
Bailey v. State of Maine Comm’n on Governmental Ethics and Election Practices, 900 F.Supp.2d 75 (D. Me. 2012) ........................... 40
Bd. of Trustees v. Fox, 492 U.S. 469 (1989) ................................ 32, 35, 46 Bluman v. FEC, 800 F.Supp.2d 281 (D.D.C. 2011) ................................ 24 Buckley v. Valeo, 424 U.S. 1 (1976) .............................................. 1, 19, 35 Citizens Against Rent Control/Coalition for Fair Housing v.
Berkeley, 454 U.S. 290 (1981) .............................................................. 34 Citizens for Peace in Space v. City of Colo. Springs, 477 F.3d 1212
(10th Cir. 2007) .................................................................................... 32 Citizens for Responsible Gov’t State PAC v. Davidson, 236 F.3d
1174 (10th Cir. 2000)............................................................................ 33 Citizens United v. FEC, 530 F.Supp.2d 274 (D.D.C. 2008) .................... 39 Citizens United v. FEC, 558 U.S. 310 (2010) ……….………..passim City of Ladue v. Gilleo, 512 U.S. 43 (1994) ............................................. 23 Colorado Citizens for Ethics in Gov’t v. Comm. for the American
Dream, 187 P.3d 1207 (Colo. App. 2008) ............................................. 15 Colorado Common Cause v. Bledsoe, 810, P.2d 201 (Colo. 1991) .......... 50 Colorado Ethics Watch v. Senate Majority Fund, LLC, 275 P.3d
674 (Colo. 2012) .................................................................................... 11 Contra Stilp v. Contino, 629 F. Supp. 2d 449 (M.D. Pa. 2009) .............. 44 Ctr. for Individual Freedom, Inc. v. Tennant, 706 F.3d 270 (4th
Cir. 2013) .............................................................................................. 26 Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269
F.3d 1149 (10th Cir. 2001) ................................................................... 18 Elrod v. Burns, 427 U.S. 347 (1976) ....................................................... 50
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Federal Election Comm’n v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) ..................................................................................... 42
First Nat’l Bank of Boston v. Bellotti, 435 U.S.765 (1978) .............. 19, 25 Free Speech v. Fed. Election Comm’n, 720 F.3d 788 (10th Cir.
2013) ................................................................................................. 2, 19 Grossman v. Dean, 80 P.3d 952 (Colo. App. 2003) ................................. 12 Heideman v. South Salt Lake City, 348 F.3d 1182 (10th Cir. 2003) ..... 18 McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003) . 1, 40, 41, 52 McCutcheon v. FEC, 134 S.Ct 1434 (2014) ............................................. 33 NAACP v. Alabama ex rel. Patterson, 357 U.S 449 (1958) .................... 48 Nat’l Ass’n of Mfrs. v. Taylor, 582 F.3d 1 (D.C. Cir. 2009) ..................... 32 Ognibene v. Parkes, 671 F.3d 174 (2d. Cir. 2011) .................................. 24 Pacific Frontier v. Pleasant Grove City, 414 F.3d 1221 (10th Cir.
2005) ..................................................................................................... 50 Pahls v. Thomas, 718 F.3d 1210 (10th Cir. 2013) ............................ 21, 30 Reader’s Digest Ass’n v. Fed. Election Comm’n, 509 F. Supp. 1210
(S.D.N.Y. 1981) ............................................................................... 22, 40 Republican Party v. King, 741 F.3d 1089 (10th Cir. 2013) .................... 49 Richison v. Ernest Group, Inc., 634 F.3d 1123 (10th Cir. 2011) ............ 30 Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819
(1995) .................................................................................................... 25 Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010)......... 20, 34, 35, 48 San Juan County v. No New Gas Tax, 157 P.3d 831 (Wash. 2007) ....... 40 Schrier v. Univ. of Colo., 427 F.3d 1253 (10th Cir. 2005)................. 17, 18 United States v. Danielczyk, 683 F.3d 611 (4th Cir. 2012) .................... 24 Utah Licensed Beverage Assn. v. Leavitt, 256 F.3d 1061 (10th Cir.
2001) ..................................................................................................... 51 Ward v. Rock Against Racism, 491 U.S. 781 (1989) ............................... 30
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Wells v. City & Cnty. of Denver, 257 F.3d 1132 (10th Cir. 2001) .......... 30 Wilderness Workshop v. U.S. Bureau of Land Mgmt., 531 F.3d
1220 (10th Cir. 2008)...................................................................... 17, 47
STATUTES
§ 1-45-101, et seq. C.R.S. (2014)................................................................ 8 § 1-45-103(9), C.R.S. (2014) ............................................................... 15, 44 § 1-45-107.5(3)-(4), C.R.S. (2014) ............................................................ 11 § 1-45-107.5(4), C.R.S. (2014) .................................................................... 5 § 1-45-107.5(4)(b)(I), C.R.S. (2014) .......................................................... 11 § 1-45-107.5(4)(b)(I)(D), C.R.S. (2014) .................................................... 11 § 1-45-107.5(7), C.R.S. (2014) .................................................................. 11 § 1-45-108(2)(a)(I)(D)-(E), C.R.S. (2014) ................................................. 10 2 U.S.C. § 431(9)(B)(i) ............................................................................. 24 2 U.S.C. § 441e ........................................................................................ 24 15 U.S.C. §§1801-1804 ............................................................................ 41 47 U.S.C. §315(a) ..................................................................................... 42
RULES
8 CCR 1505-6 at 11.1 ................................................................................. 9 8 CCR 1505-6 at 11.3 ................................................................................. 9 8 CCR 1505-6 at 11.5 ................................................................................. 9
CONSTITUTIONAL PROVISIONS
Colo. Const. art. XXVIII ...................................................................... 8, 15 Colo. Const. art. XXVIII, § 1 ................................................................... 51 Colo. Const. art. XXVIII, § 2(7)(a) ................................................. 8, 15, 44 Colo. Const. art. XXVIII, § 2(7)(b)(I) ................................................. 12, 46
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Colo. Const. art. XXVIII, § 2(7)(b)(II) ............................................... 12, 46 Colo. Const. art. XXVIII, § 2(7)(b)(III) .............................................. 12, 46 Colo. Const. art. XXVIII, § 2(9)(b)(I) ....................................................... 46 Colo. Const. art. XXVIII, § 2(9)(b)(II) ..................................................... 46 Colo. Const. art. XXVIII, § 2(9)(b)(III) .................................................... 46 Colo. Const. art. XXVIII, § 6(1) ............................................................. 8, 9 Colo. Const. art. XXVIII, § 7(b)(I) ........................................................... 24
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If the Supreme Court has woven a single unifying thread into the
past several decades of its campaign finance jurisprudence, it is this:
while bans on political speech – in whatever form – are presumptively
unconstitutional, disclosure requirements are typically not. Because
this case involves disclosure, and disclosure alone, it is important to
recognize this distinction from the outset.
The constitutional parameters of campaign finance law are ever-
evolving, and as a consequence the Supreme Court has laid out only a
few hard and fast rules since its seminal opinion in Buckley v. Valeo,
424 U.S. 1 (1976). Among those are the application of strict scrutiny to
outright prohibitions on campaign-related expenditures, accompanied
by a less rigorous examination of laws that require only disclosure of
spending on those same activities. Because “disclosure requirements
impose no ceiling on campaign-related activities,” id. at 64, they “do not
prevent anyone from speaking.” McConnell v. Federal Election
Comm’n, 540 U.S. 93, 201 (2003). As a positive, less restrictive
alternative to limitations on speech, disclosure requirements are subject
to exacting scrutiny, which “requires a ‘substantial relation’ between
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the disclosure requirement and a ‘sufficiently important’ governmental
interest.” Citizens United v. FEC, 558 U.S. 310, 366-67 (2010); Free
Speech v. Fed. Election Comm’n, 720 F.3d 788, 792-93 (10th Cir. 2013).
There can be no doubt that most ordinary disclosure requirements
satisfy this test. Indeed, Plaintiff is certainly aware that the Supreme
Court has already strongly endorsed mandatory disclosure and
disclaimer provisions applicable to “electioneering communications”
that are qualitatively identical to the speech at issue here. Citizens
United, 558 U.S. at 371 (“We find no constitutional impediment to the
application of BCRA’s disclaimer and disclosure requirements to a
movie broadcast via video-on-demand”). In this lawsuit, Plaintiff has
thus shifted its tack by reframing its challenge to Colorado’s disclosure
laws as a complaint about the allegedly unequal coverage of Colorado’s
press exemption. Rather than arguing as it did in Citizens United that
Colorado’s substantial interest in ensuring that its electorate is
informed does not justify compulsory disclosure, Plaintiff instead
asserts that it is unfair for Colorado to compel disclosure from Citizens
United while simultaneously exempting regular publications from the
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Denver Post, the New York Times, and certain other organizations that
routinely cover elections and occasionally editorialize about them. The
reason for this shift is transparent – having lost its challenge under the
exacting scrutiny standard applicable to disclosure requirements under
the First Amendment in Citizens United, Plaintiff has developed a new
legal theory designed to secure the application of strict scrutiny to
Colorado’s allegedly differential treatment of political speakers.
The district court denied the Plaintiff’s motion for a preliminary
injunction, rejecting its claim that Colorado’s campaign finance
disclosure requirements – and exemptions from those requirements –
discriminate based on the speaker’s identity, the viewpoint taken, or
the content of the speech. The district court was particularly troubled
by Plaintiffs’ failure to offer any evidence of burden imposed by
compliance with the challenged provisions, and by its failure to
establish irreparable harm as a factual matter. In fact, the district
court found that Plaintiff satisfied none of the preliminary injunction
factors. This Court should affirm. At the threshold, the United States
Supreme Court has repeatedly suggested its approval of the lines drawn
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between the traditional press and entities like Citizens United.
Binding Supreme Court precedent therefore strongly suggests that
Plaintiff is unlikely to prevail on the merits of its claim. Nor will
compliance with Colorado’s disclosure requirements for electioneering
communications or independent expenditures irreparably injure
Citizens United. To the contrary, Plaintiff will be required to file three
reports at most, and may not have to identify its contributors at all.
Finally, the issuance of an injunction – especially one that
suspends Colorado’s disclosure requirements across the board – would
substantially harm the ability of Colorado’s electorate to properly
evaluate the political messages that, as the general election approaches,
have already begun to flood the airwaves and pervade public
consciousness.
STATEMENT OF THE ISSUES
1. Did the district court correctly apply exacting scrutiny to
Citizens United’s First Amendment challenge to Colorado’s disclosure
laws?
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2. Assuming arguendo that strict scrutiny applies, did the
evidence presented demonstrate that Colorado’s disclosure laws are
substantially related to a compelling governmental interest?
3. Did the district court correctly deny Citizens United’s
preliminary injunction motion on grounds that Citizens United failed to
satisfy the four factors for preliminary injunctive relief, including a
substantial likelihood of success on its federal and state constitutional
claims?
STATEMENT OF THE CASE
I. Nature of the case
Plaintiff Citizens United challenges Colorado’s reporting and
disclosure requirements for electioneering communications and express
advocacy, and the exemptions from those requirements, which are
contained in sections 2, 5, and 6 of article XXVIII of the Colorado
Constitution (“Amendment 27”) and the Fair Campaign Practices Act
(“FCPA”), Colo. Rev. Stat. § 1-45-107.5(4). Specifically, Citizens United
challenges the scope and application of Colorado’s media and broadcast
facility exemptions and seeks a similar exemption for a forthcoming
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political advertisement, which will be presented as a half-hour
documentary.
Citizens United asserts two claims. First, it argues that
Colorado’s disclosure requirements violate the First Amendment, as
applied to the States under the Fourteenth Amendment. Jt. Appx.,
A21-A23. In support, Plaintiff contends that the disclosure
requirements unconstitutionally discriminate based on the identity of
the speaker because traditional print media entities or broadcast
facilities are exempt, but Citizens United, which is allegedly engaged in
media-like “constitutionally protected political discourse on matters of
public importance,” is not. Id., A23. Second, Citizens United contends
that the disclosure requirements violate article II, section 10 of the
Colorado Constitution, which prohibits the passage of any law that
“impair[s] the freedom of speech.” Id., A23-A24.
In the district court, Citizens United sought preliminary
injunctive relief to prohibit enforcement of Colorado’s disclosure
requirements in their entirety or, alternatively, from enforcing the
requirements as applied to Citizens United. Id., A73-A74.
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II. Course of proceedings
Plaintiff’s appeal of the denial of its preliminary injunction motion
arrives in this Court following a half-day evidentiary hearing and
written ruling by the district court. Citizens United did not present any
evidence at the preliminary injunction hearing, instead asserting that
its claims involved purely legal questions. Defendants disagreed, and
presented two expert witnesses who testified about the importance of
campaign finance disclosure to the American political system, the media
exemption, how information about political campaigns is disseminated
to the voting public, and how the public makes use of it.
The district court denied Citizens United’s preliminary injunction
motion in a written order. Jt. Appx., A154-A175. The next day,
Citizens United commenced the instant appeal.
LEGAL FRAMEWORK
This case presents a challenge to Colorado’s disclosure and
reporting requirements for certain electioneering communication-
related contributions and expenditures. These requirements, which
have been in place for more than a decade and which represent the
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status quo in this case, are contained in Article XXVIII of Colorado’s
constitution (“Amendment 27”) and Colorado’s Fair Campaign Practices
Act (“FCPA”), Colo. Rev. Stat. § 1-45-101, et seq. The pertinent
provisions are summarized below.
Electioneering communications: Generally speaking,
electioneering communications include communications distributed by
mass media or direct delivery that: 1) unambiguously refer to a
candidate for state office; and 2) are “broadcasted, printed, mailed,
delivered or distributed” thirty days or less before the primary or sixty
days or less before the general election. Colo. Const. art. XXVIII, §
2(7)(a). Citizens United concedes, and the Secretary agrees, that Rocky
Mountain Heist falls within this definition “unless subject to an
exemption.” Jt. Appx., A56.
Colorado law – like FECA and the laws of dozens of other states –
places no limits on the creation and distribution of electioneering
communications, but it does establish disclosure requirements triggered
when a person “expends one thousand dollars or more on electioneering
communications.” Colo. Const. art. XXVIII, § 6(1). These disclosures
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take the form of reports filed with the Secretary that include three
pieces of information: “
1) [S]pending on such electioneering communications,” including an itemized list of “all spending of $1,000 or more” and the “name, address, and method of communication.” Colo. Const. art. XXVIII, § 6(1); 8 Colo. Code of Regulations 1505-6, Campaign Finance Rule 11.3.
2) “The name of the candidate(s) unambiguously referred to in
the electioneering communication . . . .” 8 Colo. Code of Regulations 1505-6, Campaign Finance Rule 11.5.
3) Donor information, including name, address, and, if the
donor is a “natural person,” occupation and employer. But this information must be reported only for those donors that “contribute[ ] more than two hundred and fifty dollars per year . . . for an electioneering communication.” Colo. Const. art. XXVIII, § 6(1).
Because the Colorado Constitution specifies that donor information
must be reported only when a donation is “for an electioneering
communication,” id. (emphasis added), a campaign finance rule clarifies
that “[i]f a person spending money for electioneering communications is
a corporation or labor organization, disclosure of the names and
addresses of [donors] shall only be required if the money is specifically
earmarked for electioneering communications.” 8 Colo. Code of
Regulations 1505-6, Campaign Finance Rule 11.1 (emphasis added).
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Despite pointed questioning from the district court, Plaintiff offered no
evidence that it has solicited or planned to use funds that are
earmarked for the production or distribution of Rocky Mountain Heist.
Jt. Appx. A293:18-25.
Colorado’s definition of “electioneering communications” would not
encompass Citizens United’s production budget. Thus, assuming that
the film does not contain express advocacy, the $548,975 that Plaintiff
alleges is “dedicated to production” would not be subject to disclosure.
Complaint ¶ 29. The disclosures triggered by Plaintiff’s spending on
advertising would appear in, at most, three reports that contain the
above-described information. Disclosures are due biweekly in the two
months prior to the general election, with a final report due thirty days
after the election.1 Colo. Rev. Stat. § 1-45-108(2)(a)(I)(D)-(E).
Independent expenditure committees: If Rocky Mountain Heist
contains express advocacy,2 then it qualifies as an “independent
1 The remaining reporting dates are October 14, October 27, and December 4. 2 This question is not yet resolved. In briefing, Citizens United has suggested that the film will contain express advocacy. Jt. Appx., A56. But the Plaintiff’s complaint and the affidavit attached to the
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expenditure” and Citizens United must register with the Secretary and
report details of its corporate form and ownership structure. Colo. Rev.
Stat. § 1-45-107.5(3)-(4). It must maintain a separate bank account and
use it exclusively for its advocacy efforts, § 1-45-107.5(7), and report
certain details about corporations or individuals who donate more than
$250 per year “for the purpose of making an independent expenditure.”
§ 1-45-107.5(4)(b)(I).
The filing schedule for corporations engaging in independent
expenditures is similar to that for electioneering communications,
except that certain major expenditures occurring within 30 days before
an election must be reported within 48 hours “after obligating moneys
for the independent expenditure.” § 1-45-107.5(4)(b)(I)(D).
Exemptions: Plaintiff’s case focuses on the several exceptions
that Amendment 27 applies to the definitions of electioneering
preliminary injunction motion were more equivocal. See Jt. Appx. A17, ¶ 27 (“background footage appearing in the Film will likely include events where participants expressly advocate”); A78-A79, ¶¶ 7-8 (Bossie Declaration). Express advocacy under Colorado law requires Buckley’s “magic words;” functional equivalency is not enough to qualify. Colorado Ethics Watch v. Senate Majority Fund, LLC, 275 P.3d 674, 676 (Colo. 2012).
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communications and independent expenditure. As relevant here, those
exceptions include: (1) “news articles, editorial endorsements, opinions
or commentary writings, or letters to the editor printed in a newspaper,
magazine or other periodical not owned or controlled by a candidate or
political party”; (2) “editorial endorsements or opinions aired by a
broadcast facility not owned or controlled by a candidate or political
party; and (3) communications or spending made “by persons made in
the regular course and scope of their business[.]” Colo. Const. art.
XXVIII, § 2(7)(b)(I-III); § 2(8)(b)(I-III).
Colorado’s voters approved Amendment 27’s disclosure framework
in 2002 by a 2-1 margin. The voter information guide for that election
(a/k/a the “Blue Book”) pointed out that one goal of the amendment was
providing “more information about who is spending money to influence
elections.” Jt. Appx., A114. The Blue Book, which assists the electorate
in understanding the intentions of the proposed amendment,3 advised
voters that before 2002, “some types of political advertisements [were]
not regulated and therefore [could] be paid for anonymously. The
3 See Grossman v. Dean, 80 P.3d 952, 962 (Colo. App. 2003).
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proposal gives people information about who is paying for these
advertisements right before an election.” Jt. Appx., A114. Amendment
27 was explicitly designed to ensure that disclosure accompanies the
type of communications that Rocky Mountain Heist represents.
STATEMENT OF FACTS
Citizens United produces, markets, and distributes films on
various topics, including some that profile political figures involved in
campaigns for election or reelection. These films are often released
shortly before an election in which the political figure is running, and
historically have amounted to what the U.S. Supreme Court has
characterized as “a feature-length negative advertisement that urges
viewers to vote against” the candidate.4 Several of Plaintiff’s candidate-
oriented films have focused on candidates for federal office, and prior to
2010, the Federal Election Commission (FEC) required Citizens United
to comply with federal disclosure and disclaimer requirements for films
and associated advertising that related to federal candidates.5 In 2010,
4 Citizens United v. FEC, 558 U.S. 310, 325 (2010). 5 See FEC Advisory Opinion No. 2004-30.
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and notwithstanding the Supreme Court’s endorsement of film-related
disclosure in Citizens United, the FEC reversed itself, finding that
Citizens United qualified as a “press entity” under the Federal Election
Campaign Act, and that their political films qualified for FECA’s press
exemption.6
In late 2013 or early 2014, Citizens United made plans to spend
approximately $775,000 creating and marketing a half-hour long film
named Rocky Mountain Heist, which was timed for release just prior to
the 2014 general election. According to Plaintiff, the film “will include
unambiguous references to elected officials and others who are
candidates for office in this year’s general elections,” and “will likely
include events where participants expressly advocate the election or
defeat of one or more candidates in the November 4, 2014 elections.” Jt.
Appx., A78-A79. In April 2014, Citizens United filed a petition with
the Secretary requesting a declaration that it was exempt from having
to disclose contributions and expenditures associated with that film
6 See FEC Advisory Opinion No. 2010-08.
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under Colorado law.7 The Deputy Secretary concluded in a declaratory
order that: 1) the film is an electioneering communication under
Colorado law8; and 2) would not qualify for Colorado’s press exemption
because it is not print media, will not be produced by a broadcast
facility, and does not meet the requirements of the “regular business”
exception as that provision has been interpreted by Colorado courts.9
Jt. Appx., A40-A44.
SUMMARY OF ARGUMENT
The district court properly followed controlling Supreme Court
precedent to apply exacting scrutiny to Colorado’s disclosure
requirements. In so doing, the district court rightly rejected Citizens
7 As the state’s chief elections officer, the Secretary is empowered to administer and enforce Colorado’s campaign finance laws, which appear both in article XXVIII of the Colorado Constitution (“Amendment 27”) and in the Fair Campaign Practices Act (“FCPA”). 8 Colo. Const. art. XXVIII, § 2(7)(a); Colo. Rev. Stat. § 1-45-103(9). 9 See, e.g., Colorado Citizens for Ethics in Gov’t v. Comm. for the American Dream, 187 P.3d 1207 (Colo. App. 2008) (interpreting Amendment 27’s “regular business” exception “as limited to persons whose business is to broadcast, print, publicly display, directly mail, or hand deliver candidate-specific communications within the named candidate’s district as a service, rather than to influence elections”).
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United’s contention that Colorado’s disclosure laws discriminate based
on the speaker’s identity or the speech’s content or viewpoint.
Colorado’s disclosure laws do not impose distinctions based on the
speaker’s identity or the viewpoint expressed in the speaker’s message;
however, even if they did, exacting scrutiny remains the operative level
of review.
Plaintiff’s case hinges largely on its attempt to impose a strict
scrutiny analysis onto a disclosure-only campaign finance scheme. Even
if strict scrutiny were to apply, the evidence in the record demonstrates
that Colorado’s disclosure laws are narrowly tailored to serve two
compelling government interests – ensuring that Colorado’s electors are
able to discern who is attempting to influence their votes, and
discouraging corruption by making large independent expenditures a
matter of public record.
The district court correctly applied exacting scrutiny to conclude
that the line drawn by Colorado’s press exemption is substantially
related to an important government interest. In reaching this
conclusion, the district court accurately balanced the minimal burdens
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associated with Colorado’s disclosure scheme against the substantial
harm to the public interest that eliminating disclosure requirements
would cause. Whether strict or intermediate scrutiny applies, however,
the district court correctly concluded that Citizens United failed to
satisfy any of the four factors for preliminary injunctive relief.
STANDARD OF REVIEW
Appellate courts review the denial of a preliminary injunction
motion for abuse of discretion. Wilderness Workshop v. U.S. Bureau of
Land Mgmt., 531 F.3d 1220, 1223 (10th Cir. 2008). A lower court
abuses its discretion when its decision is based on “an erroneous
conclusion of law or where there is no rational basis in the evidence for
the ruling.” Id.
When seeking a preliminary injunction, a plaintiff must show that
the right to relief is clear and unequivocal. Schrier v. Univ. of Colo.,
427 F.3d 1253, 1258 (10th Cir. 2005). A plaintiff must establish that (1)
it will suffer irreparable injury unless the injunction issues; (2) the
threatened injury outweighs damage the proposed injury may cause the
opposing party; (3) the injunction would not be adverse to the public
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interest; and (4) there is a substantial likelihood of success on the
merits. Id.
In cases, such as this, where a party seeks to enjoin governmental
action taken in the public interest pursuant to a statutory or regulatory
scheme, the court must apply the more rigorous “substantial likelihood
of success” requirement regardless of the determination of the first
three factors. Heideman v. South Salt Lake City, 348 F.3d 1182, 1188-
89 (10th Cir. 2003).
Courts more closely scrutinize preliminary injunctions seeking to
alter the status quo, which are disfavored. Schrier, 427 F.3d at 1259.
The status quo is “the last uncontested status between the parties
which preceded the controversy until the outcome of the final hearing.”
Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d
1149, 1155 (10th Cir. 2001) (quotation and citation omitted). Because
Citizens United seeks nothing less than an end to campaign finance
disclosure in its entirety, it seeks to radically alter the status quo.
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ARGUMENT
I. The district court correctly reviewed Colorado’s disclosure laws under exacting scrutiny.
A. Compliance with Colorado’s disclosure laws will not prevent or chill Citizen United’s speech.
Disclosure requirements “impose no ceiling on campaign-related
activities, and do not prevent anyone from speaking.” Citizens United v.
FEC, 558 U.S. 310, 366 (2010) (internal citations and quotations
omitted). As “a less restrictive alternative to more comprehensive
regulations of speech,” Citizens United, 558 U.S. at 369, the indirect
impact of the disclosure laws on a speaker’s engagement in the political
process does not warrant strict scrutiny. To the contrary, because
compulsory disclosure imposes only minimal burdens on political
speakers, the federal courts have consistently upheld disclosure
requirements after applying exacting scrutiny – which requires a
substantial relationship between the challenged requirement and an
important governmental interest. See id. at 366-67; Buckley v. Valeo,
424 U.S. 1, 64 (1976); Free Speech v. Fed. Election Comm’n, 720 F.3d
788, 792-93 (10th Cir. 2013); cf. First Nat’l Bank of Boston v. Bellotti,
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435 U.S.765, 792 n.32 (1978) (striking down an outright speech ban, but
holding that “[i]dentification of the source of advertising may be
required as a means of disclosure, so that the people will be able to
evaluate the arguments to which they are being subjected”); but see
Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010) (discussed infra).
The record in this case contains no evidence that Colorado’s
disclosure laws prevent anyone from speaking or otherwise ban speech.
Citizens United is free to make its film, distribute it, and spend
unlimited amounts of money promoting it. Moreover, a testifying
expert witness in the field of campaign-finance disclosure: (a) knew of
no instance where contribution disclosures led to harassment of donors;
(b) opined that such occurrences were exceedingly rare; and (c) observed
that disclosure requirements do not negatively affect contribution
amounts or otherwise discourage monetary donations. Jt. Appx.,
A213:23-A:214:3; A215:9-A216:3. Colorado law simply requires Citizens
United to comply with ’s modest disclosure requirements for
electioneering communications and expenditures for the critical public
purpose of ensuring an informed electorate.
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B. Colorado’s disclosure laws do not discriminate based on the speaker’s identity or the speech’s viewpoint or content.
The record likewise contains no evidence that the application of or
exemption from Colorado’s disclosure requirements turns on the
speaker’s identity or the speech’s viewpoint or content.
A content-based regulation is based on the speech’s content or
subject matter. Pahls v. Thomas, 718 F.3d 1210, 1229 (10th Cir. 2013).
In contrast, a content-neutral regulation is justified without reference to
the speech’s content. Id. Viewpoint discrimination, a form of content-
based regulation, occurs when the government targets the speaker’s
particular views. Id.
The evidence presented below, as well as a review of the plain
language of the challenged provisions, demonstrates that Colorado’s
disclosure laws and associated exemptions do not discriminate based on
viewpoint, content, or the identity of the speaker. Colorado’s press
exemption does not deliberately select some speakers or political views
for disclosure while simultaneously exempting others. To the contrary,
the law is focused on ensuring that Colorado’s voters have the
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information that they need in order to make an informed choice in the
political marketplace. The exemption of some communications and the
inclusion of others represents a policy choice not about the viewpoints
expressed in those communications, but about the heuristic cues that a
viewer or reader may be able to glean from the medium of expression.
Simply put, in adopting Amendment 27, Colorado’s citizens determined
that voters should be armed with the ability to find out who is
attempting to influence their votes. Communications that qualify for
the press exemption are not included because such information is often
easily discernible from the communication itself.
Had an established news entity, such as The Denver Post, solicited
contributions in order to fund a documentary that expressly advocating
for the defeat or success of a candidate, it, too, would be required to
disclose its contributions and expenditures, because this type of activity
would fall outside its traditional press function. See Jt. Appx., A263:13-
22; A289:16-A290:15; see also Reader’s Digest Ass’n v. Fed. Election
Comm’n, 509 F. Supp. 1210, 1214 (S.D.N.Y. 1981) (rejecting assertion
that the press exemption would “exempt any dissemination or
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distribution using the press entity’s personnel or equipment, no matter
how unrelated to its press function”). Conversely, if an organization
that had not previously been recognized as a press entity in Colorado
began distributing a periodical newsletter in Colorado that interspersed
news and commentary, that communication would very likely qualify as
press irrespective of the organization’s identity or ideology. In sum,
because Colorado’s exemptions are content- and identity-neutral, they
are not, by definition, an “attempt to give one side of a debatable public
question an advantage in expressing its views to the people.” City of
Ladue v. Gilleo, 512 U.S. 43, 51 (1994).
C. Exacting scrutiny applies even if the challenged provisions do discriminate based on identity of the speaker.
Even if this Court determines that Colorado’s disclosure laws
hinge on the speaker’s identity or viewpoint or the speech’s content,
exacting scrutiny remains the operative level of review because
required disclosure does not ban or otherwise restrict speech.
But before reaching that question, it is worth noting that identity-
based distinctions are a regular feature of both First Amendment law in
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general, and campaign finance in particular, and that courts have
regularly upheld such provisions. Both federal and state law, for
example, bar any organization owned or controlled by a political party
from claiming the press exemption. 2 U.S.C. § 431(9)(B)(i); Colo. Const.
art. XXVIII, § 7(b)(I). Likewise, federal law makes it a criminal offense
for a foreign national to make campaign contributions or independent
expenditures. 2 U.S.C. § 441e. And perhaps most prominently, even in
the wake of Citizens United, which struck down a ban on corporate
independent expenditures, courts have continued to uphold bans on
direct corporate contributions to candidates. See, e.g., United States v.
Danielczyk, 683 F.3d 611 (4th Cir. 2012). These laws are not only
outright speech bans, but also discriminate solely based on the
speaker’s identity. Yet all pass constitutional muster. See Ognibene v.
Parkes, 671 F.3d 174, 186 (2d. Cir. 2011) (in challenge to corporate
contribution ban, declining to apply strict scrutiny and instead
upholding law after applying “the more lenient, closely drawn standard
of review”); see also Bluman v. FEC, 800 F.Supp.2d 281 (D.D.C. 2011)
(in review by three-judge panel, assuming without deciding that strict
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scrutiny applied to federal ban on campaign contributions by foreign
nationals, but nonetheless upholding law).
Plaintiffs’ insistence on the application of strict scrutiny relies on
a series of inapposite cases – including Citizens United itself – that
consider identity-based discrimination in the context of outright bans or
direct limitations on speech. See, e.g. First National Bank of Boston v.
Bellotti, 435 U.S. 765 (1978); Rosenberger v. Rector & Visitors of Univ.
of Va., 515 U.S. 819 (1995). To be sure, the Supreme Court has
repeatedly invalidated laws that prohibit speech from “certain
disfavored speakers,” Citizens United, 558 U.S. at 341, or “silence the
expression of selected viewpoints.” Rosenberger, 515 U.S. at 835. But
disclosure requirements do not impose this sort of impermissible
burden. To the contrary, the Supreme Court has repeatedly
emphasized that disclosure is a constitutionally acceptable alternative
to bans on speech. See Bellotti, 435 U.S. at 792 (striking down ban on
political expenditures by corporations, but not other speakers, while
upholding disclosure requirements); Citizens United, 558 U.S. at 370
(“The First Amendment protects political speech; and disclosure permits
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citizens and shareholders to react to the speech of corporate entities in a
proper way. This transparency enables the electorate to make informed
decisions and give proper weight to different speakers and messages.”).
Notwithstanding Plaintiff’s misplaced reliance on cases that
address speech bans, rather than disclosure requirements, the Fourth
Circuit’s recent opinion in Ctr. for Individual Freedom, Inc. v. Tennant,
706 F.3d 270, 287 (4th Cir. 2013), is perhaps most analogous to the
challenge here. Like the instant dispute, Tennant concerned a
constitutional challenge to a mandatory disclosure scheme, which West
Virginia enacted in response to a significant increase in independent
expenditures. West Virginia’s law required organizations to file reports
with the secretary of state and disclose when they made certain
election-related expenditures and engaged in campaign-related speech.
Id. at 275. The reporting requirements, however, exempted grassroots
lobbying communications, i.e., communications made while the
legislature was in session that urged the audience to communicate with
legislators concerning pending legislation. The Tennant plaintiffs were
organizations that engage in election-related speech and, like Citizens
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United in this case, raised concerns that the grassroots lobbying
exemption exempted some activities but not their own allegedly similar
communications. Though the Fourth Circuit acknowledged that strict
scrutiny typically applies to content-based speech restrictions, it
distinguished such limitations from the challenged disclosure
requirements. Notwithstanding the plaintiffs’ contention that the
challenged disclosure requirements discriminated based on content and
viewpoint, the court applied exacting scrutiny after concluding that the
challenged provisions did not restrict or otherwise limit speech. Id. at
287.
Tennant also adhered to this approach when analyzing an
identity-based discrimination challenge to West Virginia’s distinction
between 501(c)(3) and 501(c)(4) organizations for the purposes of
disclosure. Similarly to Citizens United here, the Tennant plaintiff
maintained that “the statute’s exemption for communication[s] paid for
by any organization operating under § 501(c)(3) of the Internal Revenue
Code unconstitutionally discriminates against § 501(c)(4)
organizations[.]” Id. at 289 (internal quotation omitted). In other
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words, the Tennant plaintiffs – unlike Citizens United in this case –
were actually able to show that the West Virginia law discriminated
against them based on their corporate status. The Fourth Circuit
agreed, yet because the challenged provision involved disclosure
requirements, rather than a speech ban, the court elected to “apply
exacting scrutiny to determine if the exemption is constitutionally
permissible[.]” Id.
The district court did not err in applying the same standard in
this case, and its decision to do so should be affirmed.
D. Colorado’s disclosure requirements are analogous to “time, place, and manner” restrictions on speech, to which a relaxed standard of scrutiny also applies.
Because disclosure in general is a constitutionally acceptable
burden to place on speakers engaging in express advocacy or
electioneering communications, and because Plaintiff is unable to show
that Amendment 27 discriminates based on the identity of the speaker
or the viewpoint expressed in the communication, its argument largely
boils down to a claim that Colorado treats some manners of expression
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differently than others. In other words, assuming that Colorado’s
disclosure requirements actually burden Citizen United’s speech at all,
Plaintiff’s primary complaint is that Amendment 27 burdens only some
manners of expression (including theirs), but not all. Citizens United
has already admitted as much, claiming that “Colorado’s media
exemptions turn primarily on the medium of transmission.” Jt. Appx.,
A146.
The Supreme Court has a well-developed doctrine for dealing with
restrictions on the manner of speech, called “time, place, and manner.”
To pass constitutional muster, content-neutral time, place, and manner
restrictions require a showing of (1) a substantial governmental
interest, that (2) is “narrowly drawn to serve that interest without
unnecessarily interfering with First Amendment freedoms.” American
Target Advertising, Inc. v. Giani, 199 F.3d 1241, 1247 (10th Cir. 2000)
(quotations omitted). Although restrictions that allow speech by some
but not others are highly disfavored under the First Amendment, “[a]
regulation that serves purposes unrelated to the content of expression is
deemed neutral, even if it has an incidental effect on some speakers or
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messages but not others.” Ward v. Rock Against Racism, 491 U.S. 781,
791-803 (1989) (emphasis added). “[D]isparate impact alone is not
enough to render a speech restriction content- or viewpoint-based.”
Pahls, 718 F.3d at 1235-36.
Where, as in the instant case, the regulatory requirements are
reasonable and leave open “ample alternative channels of
communication,” they will satisfy the time, place, and manner standard.
Wells v. City & Cnty. of Denver, 257 F.3d 1132, 1145 (10th Cir. 2001).
Because the challenged laws do not ban Citizen United’s speech, but
instead impose content- and viewpoint-neutral, post-dissemination
disclosure requirements, the district court could have appropriately
applied a time, place and manner analysis to Plaintiff’s First
Amendment claim. This Court may affirm on that ground alone. See
Richison v. Ernest Group, Inc., 634 F.3d 1123, 1130 (10th Cir. 2011)
(appellate court may affirm district court on any ground supported by
the record).
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E. The district court correctly applied exacting scrutiny to Plaintiff’s challenge.
The district court did not abuse its discretion and properly
reviewed Colorado’s disclosure laws under exacting scrutiny. Moreover,
as explained in more detail infra, the district court correctly applied the
principles of exacting scrutiny to determine that Colorado’s disclosure
laws are substantially related to its important interest in ensuring an
informed electorate. See Jt. Appx., A170, A173-175; see also Citizens
United, 558 U.S. at 370 (“prompt disclosure of expenditures can provide
shareholders and citizens with the information needed to hold
corporations and elected officials accountable for their positions and
supporters. Shareholders can determine whether their corporation’s
political speech advances the corporation’s interest in making profits,
and citizens can see whether elected officials are ‘in the pocket’ of so-
called moneyed interests.”) (internal quotation omitted).
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II. Under strict scrutiny, the evidence demonstrates that Colorado’s disclosure laws are narrowly tailored to achieve the compelling governmental interest of ensuring an informed electorate and deterring corruption or its appearance.
Strict scrutiny “requires the Government to prove that the
restriction furthers a compelling interest and is narrowly tailored to
achieve that interest.” Citizens United, 558 U.S. at 340 (citations and
quotations omitted). Narrow tailoring does not require a perfect fit
between the government’s means and its desired objective. Citizens for
Peace in Space v. City of Colo. Springs, 477 F.3d 1212 (10th Cir. 2007).
In fact, narrow tailoring does not even require “the best available fit
between means and ends[.]” Nat’l Ass’n of Mfrs. v. Taylor, 582 F.3d 1,
17 (D.C. Cir. 2009) (internal quotation omitted). Rather, a law is
narrowly tailored so long as its “scope is in proportion to the interest
served.” Bd. of Trustees v. Fox, 492 U.S. 469, 480 (1989). Even if this
Court determines that strict scrutiny applies, the evidence
demonstrates that the disclosure requirements at issue here are
narrowly tailored to serve the compelling governmental interest of
ensuring an informed electorate.
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A. Ensuring an informed electorate and preventing corruption are both compelling state interests in the disclosure context.
A law can only survive strict scrutiny if it addresses a compelling
state interest. Campaign finance disclosure requirements serve at least
two such interests: ensuring an informed electorate and deterring
corruption. See Citizens for Responsible Gov’t State PAC v. Davidson,
236 F.3d 1174, 1197 (10th Cir. 2000) (providing information to the
electorate and deterrence of corruption are both “compelling
governmental interests” served by disclosure).
Nor does Citizens United’s dismissal of corruption concerns in the
independent expenditure context have any bearing on the importance of
disclosure in preventing corruption and its appearance. 558 U.S. at 357
(“we now conclude that independent expenditures, including those made
by corporations, do not give rise to corruption or the appearance of
corruption”). To the contrary, it is precisely because of compelled
disclosure that independent expenditures present a minimal risk of
corruption. See, e.g., McCutcheon v. FEC, 134 S.Ct 1434, 1459 (2014)
(in post-Citizens United opinion, holding that disclosure may “deter
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actual corruption and avoid the appearance of corruption by exposing
large contributions and expenditures to the light of publicity”)
(emphasis added, internal quotation omitted); see also Citizens Against
Rent Control/Coalition for Fair Housing v. Berkeley, 454 U.S. 290, 299-
300 (1981) (“The integrity of the political system will be adequately
protected if contributors are identified in a public filing revealing the
amounts contributed; if it is thought wise, legislation can outlaw
anonymous contributions.”); Sampson, 625 F.3d at 1256 (noting that
disclosure “can facilitate detection of post-election favoritism”).
Put another way, isolated instances of anonymous express
advocacy leave voters adrift, without the context necessary to
appropriately evaluate the message. Compulsory disclosure of
independent expenditures allows the public to hold its elected officials
to account by revealing whether such expenditures in fact correlate
with special access or favoritism. This, as the Tenth Circuit recognized
in Davidson, supra, represents a compelling state interest.
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B. Assuming arguendo strict scrutiny applies, Colorado’s press exemption is narrowly tailored to achieve the foregoing interests.
The evidence presented below demonstrated not only that
Colorado’s disclosure laws are content, viewpoint, and identity-neutral,
as already discussed, but also that that their scope is proportional to
the well-recognized, compelling governmental interests of ensuring an
informed electorate and avoiding corruption. See Fox, 492 U.S. at 480;
Buckley, 424 U.S. at 66-67 (concluding that disclosure laws served to
prevent corruption and ensure an informed electorate regarding the
source of election-related messaging).
This conclusion is bolstered by comparing the circumstances in
this case to Sampson, 625 F.3d 1247, where the Court considered a
challenge brought by a grassroots neighborhood group that opposed a
local annexation ballot question in which only a few hundred votes were
at stake. Abuse of the private enforcement process, combined with an
administrative burden that was disproportional to the amount of money
raised and spent, chilled the Sampson plaintiffs’ speech to a
constitutionally unacceptable degree.
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The circumstances here are dramatically different. Citizens
United is not a loosely organized group of neighbors battling over their
backyards, it is a nationally prominent organization that is attempting
to influence the outcome of a statewide election. It does not plan to
spend $800 to convince its neighbors to oppose annexation, but instead
plans to spend more than $750,000 to ensure the defeat of a candidate
for statewide office. At most, Citizens United will have to file three
reports, in which donors may not have to be disclosed at all. In short, in
contrast to Sampson, it cannot be said here that “the financial burden of
state regulation on [Citizen United’s] freedom of association approaches
or exceeds the value of [its] financial contributions to [its] political
effort; and the governmental interest in imposing those regulations is
minimal, if not nonexistent, in light of the small size of the
contributions.” Id. at 1261.
This reasoning is consistent with the evidence presented in the
district court. Professor Seth Masket, who testified as an expert in the
field of campaign-finance disclosure, testified that campaign-finance
disclosures “are a main source of transparency” that help to “minimize
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situations of corruption, of conflict of interest, of bribery,” and allow
voters to evaluate political advertisements and “decid[e] for themselves
whether claims . . . are useful or less useful, and to ultimately make
decisions between candidates.” Jt. Appx. A208:25-34:14 (disclosure’s
purposes), A209:15-A210:10 (how voters process and use disclosure
information), A210:16-24 (the media’s use of disclosure information to
report on improprieties), A211:7-23 (same); A212:22-38:7 (disclosure
fosters media coverage on issues of substance). Professor Masket’s
opinions were based on multiple peer-reviewed studies linking the
disclosure of campaign finance information to voter evaluations of
political advertisements. Id. A209:18-A210:10. In one study, voters
who obtained disclosure information used that information to put
negative messaging into perspective – they viewed the subject of the
attack ad in a more positive light. Id. A210:23-A211:6. In another,
voters who received disclosure information viewed the political system
more positively and believed that the government was serving the
electorate, as opposed to self-interest. Id. A212:24-A213:21.
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Testimony from Professor Jason Shepard, an expert in the field of
journalism and mass communications, belied the Plaintiff’s contention
that the disclosure requirements at issue were designed to, or had the
effect of, discriminating based upon the content of the speech or the
speaker’s identity. Rather, the line drawn by Colorado’s press
exemption centers on an audience member’s ability to evaluate the
credibility of a particular message to determine the weight that it
should be given. As Professor Shepard explained, advertisements,
including political advertisements, differ from journalism in several
important ways.
First, whereas journalism seeks to inform or educate the public
and expose ideas at regular intervals in a transparent, balanced, and
accountable manner, drop-in political advertisements appeal to the
emotions of viewers or readers with the goal of pure persuasion.
Because they are designed to lionize or disparage a candidate, the
choices presented by political ads are stark. Jt. Appx. A235:1-12;
A235:16-A236:6; A236:10-A237:1; A257:11-A258:2; see also id., A239:2-
12; A239:16-A240:12. In evaluating Hilary: The Movie, for example, a
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three-judge district court concluded that it was “susceptible of no other
interpretation than to inform the electorate that Senator Clinton is
unfit for office, that the United States would be a dangerous place in a
President Hillary Clinton world, and that viewers should vote against
her.” Citizens United v. FEC, 530 F.Supp.2d 274, 279 (D.D.C. 2008).
The Supreme Court had a similar take: “Citizens United argues that
Hillary is just ‘a documentary film that examines certain historical
events.’ We disagree. The movie’s consistent emphasis is on the
relevance of these events to Senator Clinton’s candidacy for President,”
and as a consequence “there is no reasonable interpretation of Hillary
other than as an appeal to vote against Senator Clinton.” 558 U.S. at
325-26 (internal citation omitted).
Second, in contrast to advocacy groups who often engage in
specific fundraising appeals in order to engage in a particular initiative
or to champion a particular political message, traditional news
organizations typically do not engage in fundraising initiatives for
express advocacy pieces or solicit money from subscribers who wish to
earmark their funds for a specific message. Jt. Appx. A262:24-A263:12.
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And, even if they were to engage in such fundraising and solicitation
efforts, the district court recognized, such communications would not
qualify as press. Jt. Appx., A171; see also McConnell v. FEC, 540 U.S.
93, 208 (2003) (press exemption “does not afford carte blanche to media
companies generally to ignore FECA’s provisions”); Reader’s Digest, 509
F.Supp. at 1214 (rejecting assertion that the press exemption would
“exempt any dissemination or distribution using the press entity’s
personnel or equipment, no matter how unrelated to its press
function”); San Juan County v. No New Gas Tax, 157 P.3d 831, 841
(Wash. 2007) (“The distinction between ‘political advertising’ and
‘commentary’ may be relevant in deciding whether a media entity is
performing a legitimate press function.”).
Third, unlike advocacy groups like Citizens United – which often
engage in drop-in advocacy like a standalone film, a single election
mailer, or an anonymous website, organizations engaging in traditional
press functions publish at regular intervals, which, in turn, provide
electors with a context for evaluating any given message. See id. at
82:18-83:21; see, e.g., Bailey v. State of Maine Comm’n on Governmental
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Ethics and Election Practices, 900 F.Supp.2d 75 (D. Me. 2012) (holding
that website attacking gubernatorial candidate did not qualify for state
press exemption because it “was more like a negative campaign flyer
than a periodical publication”).
The evidence presented also demonstrates that the distinctions
drawn by Colorado’s media exemption are unrelated to viewpoint, and
instead focus on ensuring that prospective voters are able to satisfy
their informational interest. It also hews to dicta in McConnell, where
the Supreme Court recognized that “[a] valid distinction exists between
corporations that are part of the media industry and other corporations
that are not involved in the regular business of imparting news to the
public.” 540 U.S. at 208 (internal quotation and alteration omitted).
Thus, the Court held that FECA’s “narrow [press] exception is wholly
consistent with First Amendment principles”). Id. at 209. This is
consistent not only with the Court’s earlier analysis in MCFL, but also
with “[n]umerous federal statutes” that have distinguished between the
institutional press and entities like Citizens United. McConnell, 540
U.S. at 208, citing 15 U.S.C. §§1801-1804 (providing limited antitrust
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exemption for newspapers); 47 U.S.C. §315(a) (excepting newscasts,
news interviews, and news documentaries from the requirement that
broadcasters provide equal time to candidate for public office); see also
Federal Election Comm’n v. Massachusetts Citizens for Life, 479 U.S.
238, 244 (1986) (reviewing factors that distinguished one-off newsletter
from institutional press).
Unlike political advocacy groups, whose names often do not
provide “any useful cue or meaningful information to help [a voter]
evaluate…that message,” Jt. Appx. A243:9-11, communications that
qualify for the press exemption generally provide viewers with various
means for determining who is speaking and, therefore, what weight to
give the message. For example, audiences can assess the accuracy of a
newspaper’s reporting by looking at its practices over time, or
determine what weight to give its articles by reviewing its masthead or
a blog’s list of reporters. See Jt. Appx, A239:16-A240:18; A241:6-
A242:7. In contrast, drop-in political advocacy, like Rocky Mountain
Heist, does not afford audiences the same ability to assess the message’s
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reliability or determine what weight to give it. See PI Hearing
Transcript, at 110:9-111:1.
In sum, the evidence presented overwhelmingly demonstrates that
Colorado’s reporting and disclosure laws serve a compelling government
interest. In fact, the record is entirely devoid of evidence to the
contrary. Requiring Citizens United to comply with the applicable
disclosure requirements for Rocky Mountain Heist will assist voters who
are attempting to make informed decisions about what information and
communications should influence their vote.
C. Colorado’s disclosure laws appropriately balance the competing interests at stake by imposing only a minimal burden on political speakers.
The disclosure framework itself demonstrates that Colorado’s
disclosure laws are narrowly tailored to achieve the governmental
interests of ensuring an informed electorate and deterring corruption.
With respect to electioneering communications, the challenged
disclosure requirements apply only if the communication is
disseminated within a small window of time: thirty days before a
primary election or, in this case, sixty days before a general election.
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See Colo. Const. art. XXVIII, § 2(7)(a); see also Colo. Rev. Stat. § 1-45-
103(9). By linking the disclosure requirements for electioneering
communications to a forthcoming election, Colorado’s law reduces
burdens on speakers, minimizes the risk that those engaging in pure
issue speech will be burdened by disclosure, and ensures that disclosure
will occur during a time of heightened interest in political advocacy.
Contra Stilp v. Contino, 629 F. Supp. 2d 449, 459-60 (M.D. Pa. 2009)
(finding blanket prohibition on communications regarding ethics
complaints was not narrowly tailored to prevent manipulation of
electoral process because the prohibition applied regardless of the
communications timing in relation to an election).
Whether Rocky Mountain Heist amounts to an independent
expenditure or an electioneering communication, Colorado’s disclosure
requirements are designed to minimize the administrative burdens of
disclosure as well as any potential chilling effect that disclosure can
have on associational rights. As noted above, Plaintiff will have to file,
at most, three reports with the state. If expenditures on the film are
not drawn from funds specifically earmarked for that purpose by donors
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(for electioneering communications), or from funds donated “for the
purpose of making an independent expenditure,” then Citizens United
will not be required to disclose the identity of any of its contributors,
whether they are corporate or natural persons. While submitted
reports will still contain information useful to voters – for example, the
amount that Citizens United has spent to advertise and distribute the
film – the administrative and associational burdens associated with
such disclosures will be minimal and commensurate with the value of
that information.
While the foregoing establishes the narrow tailoring of Colorado’s
disclosure requirements, the exemptions at issue in this case, which
apply to both independent expenditures and electioneering
communications, are appropriately designed to require disclosure only
where a voter’s ability to satisfy the informational interest is most
lacking. Each category of exempted communication, by virtue of its
medium, permits viewers or readers to assess and evaluate the
messaging more easily than a transient communication like Rocky
Mountain Heist. Viewers can evaluate the messaging in written
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periodicals by looking to the publication’s masthead, list of reporters,
the angle of news reporting over a period of time, and practice of
publishing at regular intervals. Colo. Const. art. XXVIII, §§ 2(7)(b)(I),
2(9)(b)(I). Many of the same factors would apply to editorial
endorsements or opinions aired by a broadcast facility. Id. §§ 2(7)(b)(II),
2(9)(b)(II). And when considering communications made by persons in
the regular scope of their business or communications made by a
membership organization to its members, viewers can evaluate the
messaging by looking to the business’s or membership organization’s
missions or purposes. Id. §§ 2(7)(b)(III), 2(9)(b)(III).
All of these indicia, taken together, demonstrate narrow tailoring
on the part of Amendment 27. And, even if the fit is determined to be
less than perfect, narrow tailoring does not require absolute congruence
between the goals of the legislation and the means chosen to achieve
those goals. It is enough that Amendment 27’s “scope is in proportion to
the interest served.” Bd. of Trustees v. Fox, 492 U.S. at 480.
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III. Because Citizens United satisfied none of the elements for a preliminary injunction, the district court properly denied its motion.
Citizens United cannot demonstrate that the district court’s denial
of its preliminary injunction motion was an abuse of discretion; the
district court’s ruling was neither based on an erroneous conclusion of
law nor devoid of any rational basis in the evidence presented. See
Wilderness Workshop v. U.S. Bureau of Land Mgmt., 531 F.3d 1220,
1223 (10th Cir. 2008).
A. Citizens United failed to demonstrate a substantial likelihood of success on the merits.
First, Citizens United has not and cannot demonstrate a
substantial likelihood of success on the merits, whether under exacting
scrutiny or strict scrutiny. As discussed at length above there is, at a
minimum, a reasonable fit between the scope of Colorado’s exemptions
and the twin governmental interests in ensuring an informed electorate
and deterring corruption. The disclosure requirements do not favor one
speaker or viewpoint over another. Just as importantly, they do not
prohibit speech. Citizens United is free to spend unlimited amounts of
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money to influence Colorado’s state elections. No one has banned the
distribution or broadcast of Rocky Mountain Heist or the modes of its
dissemination. Nor did Plaintiff offer any proof to support its
allegations that Colorado’s disclosure rules “impose a significant burden
on the exercise of [its] right to engage in political speech and media and
press activities” and are “likely to chill the speech of . . . those
individuals who wish to support Citizens United’s speech through
monetary contributions.” Jt. Appx., A21. Unlike the plaintiffs in
NAACP v. Alabama ex rel. Patterson, 357 U.S 449, 462-63 (1958),
Citizens United has failed to demonstrate that past disclosure of the
identity of its membership has exposed its members to economic
reprisal, loss of employment, threat of physical coercion, [or] other
manifestations of public hostility.” Nor did Plaintiff present any
evidence that the reporting and disclosure requirements are too taxing,
time-consuming, or confusing for its organization to handle. Cf.
Sampson, 625 F.3d at 1259.
In short, because Colorado’s disclosure laws “impose no ceiling” on
Citizens United’s “campaign-related activities,” Citizens United, 558
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U.S. at 366, the district court not only appropriately selected exacting
scrutiny as its standard of review, but also correctly applied it to
determine that the challenged disclosure requirements do not violate
the First Amendment, either facially or as applied in this case. See
Republican Party v. King, 741 F.3d 1089, 1095 n.3 (10th Cir. 2013)
(“The Court upheld disclosure requirements at issue in Citizens
United because they provided the electorate with information about the
identity of the speaker and did not impose a chill on political speech,
even for independent expenditures.”).
Similar reasoning demonstrates that this Court should reach the
same result even if it applies strict scrutiny. The uncontroverted
evidence presented in the district court demonstrates that the
disclosure requirements are narrowly tailored to achieve multiple
compelling governmental interests.10
10 The district court rightly dismissed Plaintiff’s argument that the challenged disclosure requirements violate article II, § 10 of the Colorado Constitution. The district court correctly reasoned that the First Amendment standards for disclosure requirements would also apply under Colorado’s constitutional analogue. But there is an even simpler reason for rejecting this argument: Amendment 27 itself is part of the Colorado Constitution, and can only be read as limiting the scope
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B. Citizens United has not demonstrated that it would suffer irreparable harm in the absence of an injunction.
The Secretary readily acknowledges that “[l]oss of First
Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373
(1976); Pacific Frontier v. Pleasant Grove City, 414 F.3d 1221, 1235
(10th Cir. 2005). In this case, however, Citizens United has not
established any actual or imminent loss of First Amendment freedoms.
Citizens United simply relies on conclusory allegations of harm.
Theoretical or conjectural harm does not equal actual or imminent
harm.
of any previously enacted provisions. See Colorado Common Cause v. Bledsoe, 810, P.2d 201, 207 (Colo. 1991) (Colorado Constitutional must be construed as a whole, and each constitutional provision “should be construed if possible to avoid any conflict between different parts of the Constitution”).
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C. The evidence demonstrates that a preliminary injunction would run against the public interest and, therefore, the balance of harms favor the State.
Citizens United asserts that enjoining Colorado’s disclosure
requirements would be in the public interest and that the balance of
equities likewise tips in its favor. These elements are best considered
together because the public interest in this case is expressed in
Amendment 27 itself: “…the interests of the public are best served
by…providing for full and timely disclosure of campaign contributions,
independent expenditures, and funding of electioneering
communications[.]” Colo. Const. art. XXVIII, § 1.
Citizens United asserts that the Tenth Circuit has held that a
“First Amendment injury… ‘outweighs any prospective injury’ to the
government caused by enjoining the enforcement of an invalid statute.”
Doc. 4 at 25 (quoting Utah Licensed Beverage Assn. v. Leavitt, 256 F.3d
1061, 1076 (10th Cir. 2001)). Here, however, the evidence presented
demonstrates that the injury caused by enjoining the disclosure scheme
would not be to the “government,” it would be to the entire electorate of
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Colorado, prospective voters who would be deprived of their ability to
“make informed choices in the political marketplace.” McConnell, 540
U.S. at 197.
For these reasons, the district court did not abuse its discretion
when it denied Citizens United’s preliminary injunction motion. The
district court reached correct conclusions of law and it decision was
rationally based on the evidence presented or, in Citizens United’s case,
a lack thereof by the party with the burden of proof.
CONCLUSION
Based on the foregoing reasoning and authorities, the Secretary
respectfully request that the Court affirm the district court’s denial of
the Plaintiff’s request for a preliminary injunction.
Respectfully submitted this 3rd day of October, 2014.
JOHN W. SUTHERS Attorney General s/ Matthew D. Grove
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DANIEL D. DOMENICO* Solicitor General LEEANN MORRILL* First Assistant Attorney General MATTHEW D. GROVE* Assistant Solicitor General KATHRYN A. STARNELLA* Assistant Attorney General Public Officials Unit State Services Section Attorneys for Defendants-Appellees
Scott Gessler and Suzanne Staiert Ralph L. Carr Colorado Judicial
Center 1300 Broadway, 6th Floor Denver, Colorado 80203 Telephone: 720-508-6157 FAX: 720-508-6041 E-Mail: [email protected] [email protected] [email protected] [email protected] *Counsel of Record
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CERTIFICATE OF SERVICE
I hereby certify that on October 3, 2014, I served a true and complete copy of the within DEFENDANTS-APPELLEES’ BRIEF upon all parties through ECF-file and serve or as indicated below: Theodore B. Olson Matthew D. McGill Amir C. Tayrani Gibson, Dunn & Crutcher, LLP 1050 Connecticut Ave., NW Washington, D.C. 20036 Michael Boos Citizens United 1006 Pennsylvania Ave., SE Washington, D.C. 20003 Martha Tierney Edward Ramey Heizer Paul LLP 2491 15th Street, Ste. 300 Denver, CO 80202
/s Matthew D. Grove Matthew D. Grove
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CERTIFICATE OF COMPLIANCE
As required by Fed. R. App. P. 32(a)(7)(C), I certify that this brief is proportionally spaced and contains 8,835 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). Complete one of the following: I relied on my word processor to obtain the count and it is Microsoft Office Word 2010. I cou n t ed five ch a racters per word, counting all characters including citations and numerals. I certify that the information on this form is true and correct to the best of my knowledge and belief formed after a reasonable inquiry. s/ Matthew D. Grove Dated October 3, 2014
CERTIFICATE OF DIGITAL SUBMISSION
No privacy redactions were necessary. Any additional hard copies required to be submitted are exact duplicates of this digital submission. The digital submission has been scanned for viruses with the most recent version of a commercial virus scanning program, System Center Endpoint Protection, Antivirus definition 1.185.1491.0, Engine Version 1.1.11005.0, dated October 3, 2014, and according to the program is free of viruses.
s/ Matthew D. Grove Dated: October 3, 2014
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