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COLORADO COURT OF APPEALS
2 East 14th Avenue
Denver, CO 80203
District Court, City and County of Denver
Honorable J. Eric Elliff, Judge
Case No. 2012 CV 2133
(consolidated with 2012 CV 2153)
Defendant/Appellant/Cross-Appellee: SCOTT
GESSLER, in his official capacity as Secretary of
State for the State of Colorado,
v.
Plaintiffs/Appellees/Cross-Appellants:
COLORADO ETHICS WATCH and COLORADO
COMMON CAUSE
and
Plaintiffs/Appellees: DAVID PALADINO;
MICHAEL CERBO; PRO-CHOICE COLORADO
PAC; PPRM BALLOT ISSUE COMMITTEE; and
CITIZENS FOR INTEGRITY, INC.
COURT USE ONLY
Case No. 12 CA 1712
JOHN W. SUTHERS, Attorney GeneralLEEANN MORRILL, First Assistant Attorney
General
FREDERICK R. YARGER, Assistant Solicitor
General, Reg. No. 39479*
MATTHEW D. GROVE, Assistant Attorney
General, Reg. No. 34269*
1300 Broadway, 10th Floor
Denver, Colorado 80203
Telephone: (720) 508-6551
E-Mail: [email protected];
[email protected]*Counsel of Record
Answer-Reply Brief of Appellant / Cross-Appellee
Colorado Secretary of State
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Certificate of Compliance
This brief complies with the requirements of C.A.R. 28 and C.A.R. 32,including all formatting requirements. Specifically, I certify that
The brief complies with C.A.R. 28(g) because
It contains 7,292 words.o It does not exceed 30 pages.o The brief does not comply with CAR 28(g) because it exceeds
the word and/or page limit. A motion to accept the over length
brief has been filed contemporaneously with the brief.
The brief complies with C.A.R. 28(k) because,
For the party raising the issue: It contains under a separate
heading (1) a concise statement of the applicable standard of
appellate review with citation to authority; and (2) a citation to
the precise location in the record (R. __, p. __), not to an entire
document, where the issue was raised and ruled on.
For the party responding to the issue (CROSS-APPEAL):It contains, under a separate heading, a statement of whether
such party agrees with the opponents statements concerning
the standard of review and preservation for appeal, and if not,
why not.
/s/ Frederick R. Yarger
Frederick R. Yarger
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TABLE OF CONTENTS
PAGE
ii
3. Rules 1.10 and 7.2.1 clarify when a politicalorganization must report all of its activities. ....................... 23
4. Plaintiffs flawed reading of Citizens United illustratesthe value of the Secretarys rules. ......................................... 25
D.Plaintiffs objections to Rule 18.1.8 are based on amisreading of the rule. ....................................................................28
ANSWER TO CEW AND CCCs CROSS-APPEAL: Rule 1.7 ................ 30I. Summary of Argument. ................................................................... 30II. Standard of Review. ........................................................................ 30III.Argument. ........................................................................................ 32
A. Rule 1.7 is drawn directly from binding Colorado case law,as modified by U.S. Supreme Court jurisprudence. .....................32
B. The functional equivalent test is still relevant toColorados regulation of electioneering. .........................................35
C. Rule 1.7 is identical to its predecessor and makes nochanges to Colorado law. ................................................................37
Conclusion ................................................................................................. 40
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TABLE OF AUTHORITIES
PAGE
iii
CASESAlliance for Colo.s Families v. Gilbert, 172 P.3d 964 (Colo. App.
2007) ................................................................................... 6, 9, 10, 11, 12
Buckley v. Valeo, 424 U.S. 1 (1976) ..................... 12, 20, 21, 22, 23, 25, 33
Center for Individual Freedom v. Van Hollen, 694 F.3d 108 (D.C.
Cir. 2012) ................................................................................................. 7
Cerbo v. Protect Colo. Jobs, Inc., 240 P.3d 495 (Colo. App. 2010) .... 14, 21
Citizens for Free Enter. v. Dept of Revenue, 649 P.2d 1054 (Colo.
1982) ....................................................................................................... 17
Citizens United v. Federal Election Commission, 130 S. Ct. 876
(2010) .......................................................................... 7, 21, 25, 26, 35, 37
Colo. Citizens for Ethics in Govt v. Comm. For the Am. Dream,
187 P.3d 1207 (Colo. App. 2008) ....................................................... 7, 31
Colo. Ethics Watch v. Senate Majority Fund, 269 P.3d 1248 (Colo.
2012) ................................................................................................. 21, 34
Colo. Ground Water Commn v. Eagle Peak Farms, 919 P.2d 212
(Colo. 1996) ........................................................................................ 4, 30
Colo. League of Taxpayers, No. OS 2009-0001, at 2 n.2 (Apr. 24,
2009) ....................................................................................................... 40
Fed. Election Commn v. Mass. Citizens for Life, 479 U.S. 238
(1986) ...................................................................................................... 11
Fed. Election Commn v. Wis. Right to Life, Inc. (WRTL II), 551
U.S. 449 (2007) .......................................................... 7, 33, 34, 35, 38, 39
Harwood v. Senate Majority Fund, LLC, 141 P.3d 962 (Colo. App.2006) ................................................................... 32, 33, 34, 35, 36, 37, 39
In re Interrogatories, 227 P.3d 892 (Colo. 2010) ............................... 36, 37
Independence Institute v. Coffman, 209 P.3d 1130 (Colo. App.
2008) ................................................................................. 6, 11, 13, 14, 18
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TABLE OF AUTHORITIES
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iv
Janssen v. Indus. Claim Appeals Office, 40 P.3d 1 (Colo. App.
2001) ....................................................................................................... 16League of Women Voters of Colo. v. Davidson, 23 P.3d 1266 (Colo.
App. 2001) .............................................................................................. 20
Minn. Citizens Concerned for Life v. Swanson, 692 F.3d 864 (8th
Cir. 2012) ............................................................................................... 22
Natl Cable & Telecomms. Assn v. Brand X Internet Servs., 545
U.S. 967 (2005) ........................................................................................ 3
National Organization for Marriage v. McKee, 649 F.3d 34 (1st
Cir. 2011) ................................................................................... 11, 12, 23
OQuinn v. Baca, 250 P.3d 629 (Colo. App. 2010) ..................................... 2
People v. Durapau, 2012 COA 67 .............................................................. 1
People v. Lowrie, 761 P.2d 778 (Colo. 1988) .............................................. 4
Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010) ..................... 18, 22
Sanger v. Dennis, 148 P.3d 404 (Colo. App 2006) ..................................... 4
Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) .............. 10
Timothy C. Wirt, M.D., P.C. v. Prout, 754 P.2d 429 (Colo. App.
1988) ....................................................................................................... 10
Vaughan v. McMinn, 945 P.2d 404 (Colo. 1997) ..................................... 19
Wine & Spirits Wholesalers of Colo., Inc. v. Colo. Dept of
Revenue, 919 P.2d 894 (Colo. App. 1996) ............................................. 14
CONSTITUTIONSColo. Const. Art. XXXVII, 3(4) .............................................................. 37
Colo. Const. Art. XXXVII, 6(2) .............................................................. 37
Colo. Const. Art. XXVIII, 9(1)(b) ............................................................. 3
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TABLE OF AUTHORITIES
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v
STATUTES 1-45-103(12), C.R.S. (2012) ...................................................................... 6
1-45-103(12)(b), C.R.S (2012). ......................................................... 14, 15
1-45-103.7(2.5), C.R.S. (2012) ................................................................ 25
1-45-108(1)(a)(I), C.R.S. (2012) ....................................................... 12, 24
1-45-108(1)(a)(III), C.R.S. (2012) ..................................................... 24, 27
1-45-108.5(1), C.R.S. (2012) ................................................................... 25
RULESC.A.R. 28(k) ............................................................................................. 1, 2
Rule 1.7 ............................................................................................. passim
Rule 1.10 ................................................................................. 19, 23, 25, 40
Rule 1.12.3 ........................................................................................ passim
Rule 1.18.2 ........................................................................................ passim
Rule 7.2.1 ................................................................................ 19, 22, 25, 40
Rule 9.4 ................................................................................... 30, 34, 37, 39Rule 18.1.8(a) ............................................................................................ 40
OTHER AUTHORITIESWebsters Third New International Dictionary (1986) ........................... 32
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ARGUMENT IN REPLY:
Rules 1.18.2, 1.12.3, 7.2.1, 1.10, and 18.1.8(a)
I. Standard of Review.A. The Secretary did not violate C.A.R. 28(k) by
trimming words from his briefand neither did
CEW and CCC.
The Paladino Plaintiffs1 argue that the Opening Brief violates
C.A.R. 28(k) and should be struck because it sets forth the standard of
review under a single heading rather than five duplicative headings
(i.e., one for each rule). (Paladino Ans. Br. at 45.) This argument is a
distraction. Had the Secretarys Opening Brief been procedurally
deficient, this Court would have struck the brief on its own and
directed [the Secretary] to file a complying brief. See People v.
Durapau, 2012 COA 67, 45.
In any event, each rule at issue in this appeal is governed by the
same administrative review standards, and each issue in this appeal
1 There are two groups of plaintiffs in this case: (1) Colorado Ethics
Watch and Colorado Common Cause (CEW and CCC) and (2) the
group that includes David Paladino (the Paladino Plaintiffs).
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was resolved in a single order by the district court. Only one standard-
of-review heading was necessary. CEW and CCC followed that very
approach in their own Opening-Answer brief: they included only a
single standard-of-review section for the five rules at issue in the
appealpresumably in the interest of brevity and concisionand they
included a separate standard-of-review section for the portion of their
brief related to the cross-appeal. (CEW/CCC Op.-Ans. Br. at 1315, 31.)
Yet, transparently, the Paladino Plaintiffs do not argue that the brief
filed by CEW and CCC should be struck.
The Secretary is aware of the purposes of C.A.R. 28(k). For
convenience, he attached a full copy of the district courts order to the
Opening Brief as well as an addendum containing the full text of all of
the challenged rules, ensuring that this Court would not have to search
[the] record[] to determine whether (and, if so, how) issues had been
raised and resolved in the trial court[]. OQuinn v. Baca, 250 P.3d 629
(Colo. App. 2010). The Colorado Appellate Rules are meant to facilitate
efficient case administration; the Paladino Plaintiffs selective quibbling
over collateral issues serves the opposite purpose.
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B. The Secretary, the only official empowered toadminister and enforce Colorados campaign
finance laws, has discretion to enact rules toprovide guidance to the public.
CEW and CCC assert that the Secretary is not a judge . . . , nor a
legislative body . . . . He is merely an administrator of the laws enacted
by the General Assembly or the People . . . . CEW/CCC Op.-Ans. Br. at
13. The Secretary has never argued otherwise. But the Secretarys role
as administrator of the laws is crucial, no matter how hard Plaintiffs
try to minimize it. He is the only official in Colorado authorized to
promulgate rules to administer and enforce the states campaign
finance laws, and he has a constitutional duty to do so. Colo. Const. Art.
XXVIII, 9(1)(b).
Like every public official with rulemaking authority, the Secretary
must interpret the law, often in light of judicial decisions, and provide
guidance to the public about how the law may be implemented. This is
the very essence of administration. See, e.g., Natl Cable & Telecomms.
Assn v. Brand X Internet Servs., 545 U.S. 967, 98082 (2005)
(explaining that an agencys role is to fill . . . statutory gap[s] in [a]
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reasonable fashion, which entails making interpretations and
constructions of statutory language). It follows that the Secretary
must have discretion to promulgate campaign finance regulations, as
long as those regulations do not add [to], [] modify, and [] conflict with
governing law. Sanger v. Dennis, 148 P.3d 404, 413 (Colo. App 2006).
Although Plaintiffs appear to contend otherwise, there are many
ways to implement a statute or constitutional provision. SeePeople v.
Lowrie, 761 P.2d 778, 781 (Colo. 1988) ([I]t will often be impracticable
for the General Assembly to fix rigid standards . . . without destroying
the flexibility necessary to effectuate obvious legislative goals . . . .).
Plaintiffs may disagree with the Secretarys rules or his legal
interpretations, but if the Secretarys rules are permissiblethat is, if
they are consistent with governing law, including judicial opinions
they must be upheld against Plaintiffs challenges. See Colo. Ground
Water Commn v. Eagle Peak Farms, 919 P.2d 212, 217 (Colo. 1996)
(explaining that a plaintiff bears the burden of demonstrating that a
rule-maker violated constitutional or statutory law).
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The Paladino Plaintiffs, in an attempt to deflect their burden to
rebut the presumed validity of the Secretarys rules, distort the
Secretarys rulemaking efforts. They claim the Secretary is arguing
that validly enacted statutes and validly adopted constitutional
amendments are unconstitutional. (Paladino Ans. Br. at 910.) They
further assert that the Secretary must establish[] that constitutional
and statutory [provisions are] unconstitutional beyond a reasonable
doubt. (Id.)
The Secretary, however, is not arguing that various provisions of
Colorados campaign finance laws are unconstitutional. His rules
provide guidance as to how valid laws may be validly implemented,
consistent with judicial precedent.Courts routinely explain how to
apply what Plaintiffs call validly enacted statutes and validly adopted
constitutional amendments. (Id.) In doing so, courts do not declare the
laws to be invalid, as the Paladino Plaintiffs assumeeven if the
resulting judicial opinions narrow the circumstances in which the laws
may be applied. For example, when this Court held that the major
purpose test must be applied to political committees in Colorado, it was
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not invalidating a Colorado constitutional provision but was
explaining how the provisionwhich was necessarily validcouldbe
enforced.Alliance for Colo.s Families v. Gilbert, 172 P.3d 964, 97273
(Colo. App. 2007).
Even the Paladino Plaintiffs admit that guidance is sometimes
necessary to clarif[y] the law . . . in light of judicial decisions.
(Paladino Ans. Br. at 1415.) They explain that the General Assembly
amended C.R.S. 1-45-103(12), the statute that defines issue
committees, to comply with this courts decision in Independence
Institute v. Coffman, 209 P.3d 1130 (Colo. App. 2008). They further
acknowledge that this legislative amendment did not make a
substantive change to the statute. (Paladino Ans. Br. at 15.) Yet, in the
view of the Paladino Plaintiffs, the Secretarys own attempts to clarify
the law in light of judicial precedent equates to arguing that validly
enacted statutes and validly adopted constitutional amendments are
unconstitutional. (Id. at 9.) This view bucks common sense. As the D.C.
Circuit recently observed, significant developments in case law often
create the occasion for rulemaking. Center for Individual Freedom v.
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Van Hollen, 694 F.3d 108, 110 (D.C. Cir. 2012) (remanding the case for
rulemaking and noting that [t]he statute is anything but clear,
especially when viewed in the light of the Supreme Courts decisions in
Citizens United . . . and WRTL II). An ostrich-like approach that
requires public officials to ignore case law serves no purpose but to
confuse members of the public who consult administrative rules to
answer legal questions.
Aside from their disagreement with the rules they have
challenged, Plaintiffs provide no reason why the Secretary or other
officials, in exercising their constitutional duty to promulgate
administrative rules, must ignore judicial precedent. Nor can they
explain why the Secretary is prevented from clarifying the law by
answering specific questions not answered by existing statutes and
constitutional provisions. Plaintiffs disagreement with the Secretarys
rules does not relieve them of the burden to prove that each of the
challenged rules is invalid beyond a reasonable doubt. Colo. Citizens for
Ethics in Govt v. Comm. For the Am. Dream, 187 P.3d 1207, 1217 (Colo.
App. 2008).
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II. Rules 1.18.2, 1.12.3, 7.2.1, 1.10, and 18.1.8(a) are validexercises of the Secretarys constitutional authority.
A. Rule 1.18.2 codifies the major purposerequirement for political committees.
1. Rule 1.18.2 is necessary to avoidregulating political committees
through post-hoc litigation.
Both Plaintiffs and the district court recognized below that under
Colorado law, a group cannot be regulated as a political committee
unless it meets the major purpose requirement. (See E-File R. at 240,
391.2) But as it stands now, with Rule 1.18.2 invalidated, the only way
for an entity to determine whether this requirement has been met is
through litigation. The entity will not know with certainty whether it is
subject to regulation as a political committee until it has been sued,
appears before an ALJ, receives a decision, and perhaps endures an
2 E-File R. refers to documents compiled in the compact disk e-filed
by the district court clerk (for these citations, page numbers refer to
PDF pages 1508). Admin. R. Vol. 1 refers to the eight documents in
the official rulemaking record. Admin. R. Vol. 2 refers to writtencomments submitted by the public as part of the rulemaking hearing in
December 2011. Tr. refers to pages of the transcript of the rulemaking
hearing.
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appeal. See, e.g.,Alliance for Colo.s Families v. Gilbert, 172 P.3d 964
(Colo. App. 2007).
Plaintiffs apparently prefer the existing regime of regulation-
through-litigation, pointing to cases in which application of the
existing definition [of political committee] . . . have not violated the
First Amendment. (Paladino Ans. Br. at 27.) But Plaintiffs preferred
litigation-based regime creates serious problems: well-funded members
of the political community can hire counsel to advise them and defend
against (or prosecute) lawsuits involving the major purpose
requirement. Meanwhile, unsophisticated parties with fewer resources
must, without the aid of counsel, digest not only constitutional
provisions, statutes, and administrative rules, but forty years of judicial
precedent as well. As the record demonstrates, some of these parties
will be discouraged from exercising their First Amendment rights. (See
Tr. at 57:11016; Admin. R. Vol. 2, Tab 14 at 4.) Rule 1.18.2 codifies the
major purpose test in a way that addresses the imbalance between
sophisticated political groups and small grassroots organizations.
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2. The Secretary properly based Rule1.18.2 on applicable judicial precedent.
It cannot be true, as Plaintiffs argue, that because [t]he voters
did not include a major purpose requirement in the constitutional
definition of political committee, the Secretary is prevented from
recognizing the requirement through rulemaking. (CEW and CCC Op.-
Ans. Br. at 27; see also Paladino Ans. Br. at 2526.) If this were so, this
Court could not have instructed the ALJ inAlliance for Colorados
Families to apply the major purpose test. Instead, the Court would have
been required to declare the definition of political committee
unenforceable. Courts, like administrative officials, cannot add new
requirements to existing legal definitions. Cf. Timothy C. Wirt, M.D.,
P.C. v. Prout, 754 P.2d 429, 430 (Colo. App. 1988) (refusing to judicially
amend a clearly stated . . . legislative policy . . . and impermissibly
invade the province of the General Assembly); Smith v. Midland
Brake, Inc., 180 F.3d 1154, 116768 (10th Cir. 1999) (refusing to
judicially amend a statutory definition and holding our duty is to
enforce Congress definition).
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Yet Plaintiffs assert that Rule 1.18.2 is arbitrary and capricious
because its two criteria are based on guidance from the Supreme Court
and the Tenth Circuit. (Paladino Ans. Br. at 30 (citing Fed. Election
Commn v. Mass. Citizens for Life, 479 U.S. 238 (1986)); CEW and CCC
Op.-Ans. Br. at 2627 (citing Colo. Right to Life Comm. v. Coffman, 498
F.3d 1137 (10th Cir. 2007)).) The the major purpose requirement is an
acknowledged fact in Colorado, and, as Plaintiffs recognize, [t]he issue
is how the political committee definition is applied without violating
the Constitution. (Paladino Ans. Br. at 28.) It was not arbitrary and
capricious for the Secretary to explain the major purpose test using
judicial guidance that this Court itself has described as relevant
authority.Alliance for Colo.s Families, 172 P. 3d at 973 (citing Colo.
Right to Life Comm. v. Coffman).
3. Despite Plaintiffs arguments, themajor purpose test is part of Colorados
definition of political committee.
In a final attempt to invalidate Rule 1.18.2, the Paladino Plaintiffs
misread National Organization for Marriage v. McKee, 649 F.3d 34 (1st
Cir. 2011), suggesting that because the First Circuit upheld a Maine
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statute regulating non-major purpose political committees, Rule
1.18.2 is necessarily invalid. (Paladino Ans. Br. at 26.) That argument is
wrong for at least two reasons.
First, it defies this Courts holding that the major purpose test is
required byBuckley and is, unambiguously, a part of Colorado law.
See Alliance for Colo.s Families, 172 P.3d at 972.
Second, the non-major purpose provisions of the law at issue in
National Organization for Marriage were tailored to Maines
informational interest, requiring disclosure only of the candidates or
campaigns the non-major-purpose PAC supports or opposes, its
expenditures made to support or oppose the same, and identifying
information for any contributors who have given more than $50 to the
PAC to support or oppose a candidate or campaign. 649 F.3d at 58
(emphasis added). The same is not true in Colorado, where political
committees are required to report all donations, all expenditures, and
all obligations [they] enter[] into. C.R.S. 1-48-108(1)(a)(I) (emphasis
added). The Paladino Plaintiffs attempt to equate Colorado law with
another states vastly different regulatory scheme underscores their
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misunderstanding of the major purpose test and Rule 1.18.2. Because
the rule simply codifies an existing requirement of Colorado law and
clarifies how that requirement is met, it was within the Secretarys
discretion to promulgate.
B. Rule 1.12.3 explains how to apply the a majorpurpose requirement for issue committees.
1. Rule 1.12.3 is an exercise ofadministrative discretion to fill a gap
in current law.
Plaintiffs arguments against Rule 1.12.3 reveal that they
misunderstand the circumstances under which administrative officials
may promulgate rules. In Plaintiffs viewwhich echoes the district
courts faulty analysis below (see Secy Op. Br. at 3639)a rule is valid
only if the statute under which it was promulgated is either
unconstitutional or has already spoken to the precise question the rule
answers. This makes no senseif Plaintiffs are correct, a rule is valid
only if it is unenforceable or unnecessary.
Plaintiffs argue that two court decisionsIndependence Institute
v. Coffman, 209 P.3d 1130 (Colo. App. 2009)and Cerbo v. Protect Colo.
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Jobs, Inc., 240 P.3d 495 (Colo. App. 2010)foreclose Rule 1.12.3
because in both of them, this Court concluded that the phrase a major
purpose is not unconstitutionally ambiguous, vague, or overbroad. (See
Paladino Ans. Br. at 16, 18; CEW and CCC Op.-Ans. Br. at 24.) The fact
that the phrase a major purpose is constitutionally enforceable,
however, sheds no light on the real question: whether the definition of
a major purpose leaves any gap to be filled through rulemaking.
Plaintiffs do not dispute that when a relevant statute or
constitutional provision has not spoken on [a] precise question, an
administrator is empowered to make rules. Wine & Spirits Wholesalers
of Colo., Inc. v. Colo. Dept of Revenue, 919 P.2d 894, 98999 (Colo. App.
1996). Here, for example, the statutory definition of a major purpose
provides a set of criteria but fails to explain how those criteria apply.
C.R.S. 1-45-103(12)(b). The Secretary promulgated Rule 1.12.3 to fill
this gap. In arguing that Independence Institute and Cerbo left no gap to
fill, Plaintiffs confuse the distinction between an unconstitutional,
unenforceable law and one that is subject to rulemaking. This Court,
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however, did not confuse that distinction. Neither Independence
Institute nor Cerbo forecloses Rule 1.12.3.
Plaintiffs also assert that because [t]he General Assembly . . . did
not . . . use the 30% figure adopted by the Secretary, it left no room for
the Secretarys 30% idea. (Paladino Ans. Br. at 1415; see also CEW
and CCC Op.-Ans. Br. at 25.) Plaintiffs believe that, under 1-45-
103(12)(b), a case-specific inquiry into an organizations pattern of
conduct [is] the appropriate test. (CEW and CCC Op.-Ans. Br. at 25.)
The statutory definition of a major purpose, however, says nothing
about a case-specific inquiryjust as it does not mandate the bright-
line approach of Rule 1.12.3. See 1-45-103(12)(b). This silence does not
mean that only one option is the appropriate test. (CEW and CCC Op.-
Ans. Br. at 25.) Instead, it means either approach is permissible.
Moreover, Plaintiffs viewthat because 1-45-103(12)(b) does not
specify a bright-line test, this type of test must be prohibitedturns
administrative rulemaking on its head. The lack of specificity in the
statute is what empowers the Secretary to make rules; the legislative
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silence does not preclude him from doing so. See Janssen v. Indus.
Claim Appeals Office, 40 P.3d 1, 4 (Colo. App. 2001).
2. Rule 1.12.3 is based on a carefulconsideration of the record and the
Secretarys discretionary authority.
Plaintiffs further argue that the 30% threshold of Rule 1.12.3 is
arbitrary and was adopted with no factual basis in the rulemaking
record. (CEW and CCC Op.-Ans. Br. at 26; see also Paladino Ans. Br. at
19.) This is simply untruethe record demonstrates the need for an
easy-to-apply test explaining whether an entity satisfies the a major
purpose requirement. For example:
One written comment stated, [t]he adoption of a 30-percent-expenditure threshold . . . provides another much-needed
bright-line test. Colorados a major purpose language . . . has
been a source of confusion and an object of litigation. (Admin.
R. Vol. 2, Tab 39 at 23.)
Another commenter, who had unwittingly formed an issuecommittee in a previous election cycle, testified, I do like the
idea that theres a clear rule here. There hasnt been a test at
all. Who knows what a major purpose would mean? . . . [I]f you
decide not to file, youre running the risk that youre going to bedragged into court . . . . And you just dont . . . know whether
youre complying with the rules or not. [Rule 1.12.3] would at
least have a bright-line test . . . . (Tr. at 114:413.)
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Another commenter testified that under the old rules, theaverage citizen would have to hire an attorney . . . . The result
is that citizen activists are going to shut up, go home, do whattheyre told, and not have a voice in the system. . . . That is why
the rules matter. (Tr. at 56:1957:4.)
The record also demonstrates that the Secretary consideredother options for clarifying a major purpose, including, as an
opponent of Rule 1.12.3 suggested, a dollar limit rather than a
percentage-based threshold. (Tr. at 86:1219, 88:57.)
In evaluating this record, the Court must display sensitivity to
the range and nature of determinations that must be made by an
administrative agency. Citizens for Free Enter. v. Dept of Revenue, 649
P.2d 1054, 1064 (Colo. 1982). It must be mindful that [its] task is not to
substitute [its] judgment for that of the administrative agency; rather,
it is to assure that the regulation is the product of reasoned decision-
making fairly defensible in light of the material before the agency and
its latitude in the resolution of policy matters. Id. at 1065. Here,
whether to employ a bright-line test or the case-specific inquiry that
Plaintiffs prefer is a matter that demands agency discretion. The record
makes clear that the Secretary carefully considered all the testimony
and written comments, and made a reasoned decision that this Court
cannot second-guess.
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Plaintiffs assert that the 30% line was drawn in the wrong place
and foster[s] non-disclosure. (Paladino Ans. Br. at 16; see also CEW
and CCC Op.-Ans. Br. at 27.) But the a major purpose requirement
itself was designed to decrease disclosure, at least when the burdens of
regulation outweigh the publics interest in such information. That is
the whole point of the a major purpose test: to balance the need for
disclosure against the concern that not everyone who engages in
protected speech must report his or her expressive activity.
Independence Institute, 209 P.3d at 1139 ([T]he electorates intent in
adopting article XXVIII [was] to require disclosure of contributions
made to entities that exist to influence election outcomes as to ballot
issues, and not to require disclosure of contributions to entities that do
not have such influence as a major purpose. (emphasis added)); cf.
Sampson v. Buescher, 625 F.3d 1247, 1261 (10th Cir. 2010)(Here, the
financial burden of state regulation on Plaintiffs freedom of association
approaches or exceeds the value of their financial contributions to their
political effort . . . .). Rule 1.12.3s 30% threshold simply makes the
requirement easier to administer and understand.
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And, as the record suggests, the rule will likely cause more groups
to engage in ballot-issue advocacy, therefore increasingdisclosure above
the current level. If nascent issue committees are easily able to
determine when they will trigger reporting requirements, they will be
more likely to comply with them rather than shut[ting] up, go[ing]
home, . . . and not hav[ing] a voice in the system. (Tr. at 56:1957:4.)
C. Rules 7.2.1 and 1.10 clarify the definition ofpolitical organization.
1. The Courtand the Secretarymustheed preexisting law in construing
legislative language.
The Secretarys Opening Brief explains in detail that Rules 7.2.1
and 1.10 clarify the definition of political organization based on
existing legal requirements. (Secy Op. Br. at 4147.) The General
Assembly, when enacting the definition, was legislating in an area
laden with years of judicial interpretation. This Court must presume
the General Assembly knew of this precedent and adopt[ed] the
construction which prior judicial decisions have placed on particular
language. Vaughan v. McMinn, 945 P.2d 404, 407 (Colo. 1997). This is
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especially true in the realm of campaign finance law. See, e.g., League of
Women Voters of Colo. v. Davidson, 23 P.3d 1266, 1278 (Colo. App.
2001) ([N]one of [the] advertisements was express advocacy, as that
term is construed and applied inBuckley [v. Valeo, 424 U.S. 1
(1976)] . . . .).
Plaintiffs trivialize this legal background, and they urge the Court
to presume that the General Assembly was unaware of it or, perhaps,
chose to ignore it. (See Paladino Ans. Br. at 3841.) CEW and CCC even
suggest that the General Assembly deliberately chose to avoid the
legally significant terms expenditure or express advocacy. (CEW and
CCC Op.-Ans. Br. at 1617.) At the same time, CEW and CCC
disregard the legal significance of the terms the General Assembly did
deliberately choose to use, including the phrase influencing or
attempting to influence. That phrase, according toBuckley, is
overbroad and requires a limiting construction. (See Secy Op. Br. at 44
47.) And becauseBuckley is the bedrock of all campaign finance
political speech jurisprudence, Colo. Ethics Watch v. Senate Majority
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Fund, 269 P.3d 1248, 1258 (Colo. 2012), the Secretary is not free to
disregard it.
2. Buckley applies to disclosure-only laws.But Plaintiffs not only ignore the law; they also misconstrue it.
They assert that theBuckley analysis is simply not relevant to
Colorados political organization statute, which creates only disclosure
obligations. (CEW and CCC Op.-Ans. Br. at 19; see also Paladino Ans.
Br. at 39.) In their view, disclosure-only laws do not raise the First
Amendment concerns thatBuckley identified. 3 The precedent, however,
says otherwise. Cerbo v. Protect Colo. Jobs, Inc., 240 P.3d 495, 500
(Colo. App. 2010) ([R]egistration and reporting requirements . . .
3 Plaintiffs pluck a single passage from Citizens United v. Federal
Election Commission, 130 S. Ct. 876 (2010), to argue that disclosure-
only laws are free fromBuckleys requirements. (CEW and CCC Op.-
Ans. Br. at 1920; Paladino Ans. Br. at 39.)Citizens United, however,
dealt with a specific regulatory area: electioneering communications. As
the Colorado Supreme Court recognizes, electioneering is narrowly
defined by objective and bright-line criteria, making broader
limitations on electioneering tolerable. Senate Majority Fund, 269P.3d at 1258. Outside the electioneering context, however, regulations
like those governing political organizations implicate the vagueness
and overbreadth concerns fromBuckley. See id.
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implicate the First Amendment . . . .); Sampson, 625 F.3d at 1255
(Reporting and disclosure requirements . . . can infringe on the right of
association.).
As the Eight Circuit recently recognized, simply placing a
disclosure label on laws imposing the substantial and ongoing burdens
typically reserved for PACs does not exempt those laws from existing
judicial precedent. Minn. Citizens Concerned for Life v. Swanson, 692
F.3d 864 (8th Cir. 2012). There, the court analyzed a law that d[id] not
prohibit corporate speech. Id. at 871. Although it was a disclosure-only
law, the court found it problematic under the First Amendment because
it required ongoing reporting requirements from associations not
otherwise qualifying as PACs and yet did not employ theBuckley
major purpose test to determine what entities would or would not be
faced with this type of regulation. Id. at 877, 87172. For the same
reasons, Rule 7.2.1 properly incorporates the major purpose test into
Colorados definition of political organization.
Another case also found a deficiency in a disclosure-only statute,
but this time the issue was the problematic phrase influencing or
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attempting to influence. Natl Org. for Marriage, 649 F.3d at 6447.
There, the First Circuit considered pure disclosure laws that
impose[ed] no limitation on the amount of money PACs [could] raise
. . . [or] spend. Id. at 4142. Yet the court recognized that the laws use
of the phrase influencing present[ed] some vagueness problems. Id.
at 65. In the courts view,Buckley dictated that the term be given a
narrow[ing] formulation that would be considerably more precise
than the original. Id. at 67. This is precisely what Rule 1.10 does in
similarly construing the phrase influencing or attempting to influence.
3. Rules 1.10 and 7.2.1 clarify when apolitical organization must report all
of its activities.
Plaintiffs claim that Rules 1.10 and 7.2.1 collapse[] the
distinction between political committees and political organizations.
(CEW and CCC Op.-Ans. Br. at 15.) And they argue that a 527 group
could avoid regulation so long as they avoid the magic words of
express advocacy or continue to spend in other states. (CEW and CCC
Op.-Ans. Br. at 18.) But Plaintiffs ignore that Colorado law
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comprehensively regulates many types of election-related activity, often
in overlapping ways.
All individuals and entitiesno matter what form they take
must report each independent expenditure in excess of one-thousand
dollars, if those expenditures are not reported elsewhere. Colo. Const.
Art. XXVIII, Sec. 5(1). And for every contribution of over $20 to a
candidate committee, political committee, issue committee, small donor
committee, or political party, a disclosure must be made that includes
the name and address of the contributor. C.R.S. 1-45-108(1)(a)(I). Any
expenditure that is coordinated with a political candidate is treated as a
contribution subject to these disclosure rules. Colo. Const. Art. XXVIII,
9. Separately, any electioneering communication over $1,000 must be
reported, as well as the name, address, occupation, and employer of
anyone donating $250 or more to the communication. C.R.S. 1-45-
108(1)(a)(III). This intricate system often blurs the lines that separate
distinct campaign activity. For example, in 2010 the General Assembly
was required to pass a law ensuring that independent expenditure
committees would not be regulated as political committees; this law was
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necessary because organizations could easily fall under both definitions.
See C.R.S. 1-45-103.7(2.5).
Within this framework, Rules 1.10 and 7.2.1 clarify the point at
which a 527 organization must report all of its activityboth in
Colorado and around the countryto the Colorado Secretary of State.
In Colorado, a political organization must report any contributions it
receives and any spending . . . that exceeds twenty dollars. C.R.S. 1-
45-108.5(1) (emphasis added). This type of regulatory regime, which
imposes comprehensive reporting and disclosure requirements on
everything an entity does, must comply withBuckley to ensure it is not
overbroad. See Minn. Right to Life, 692 F.3d at 872 (Minnesota has, in
effect, substantially extended the reach of PAC-like regulation to all
associations that ever make independent expenditures. (emphasis in
original)).
4. Plaintiffs flawed reading of CitizensUnited illustrates the value of theSecretarys rules.
Finally, Plaintiffs resort to unfounded hyperbole in an attempt to
argue that Rules 7.2.1 and 1.10 are invalid.
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The Paladino Plaintiffs declare that the very spending that was
at the heart ofCitizens United would not be disclosed under Rule 7.2.1
and 1.10. . . . [T]here would be no disclosure at all if [Hillary: The
Movie] were shown in Colorado. (Paladino Ans. Br. at 4142.) This
argument does nothing to support Plaintiffs objections to Rule 1.10 and
7.2.1. It merely reveals that the Paladino Plaintiffs do not understand
Citizens United or Colorados rules regarding electioneering
communications.
The movie at issue in Citizens United was to be made available
through video-on-demand within 30 days of the 2008 primary elections.
130 S. Ct. at 888. Because the movie repeatedly mentioned a political
candidate by name and urge[d] viewers to vote against Senator Clinton
for President, it was the functional equivalent of express advocacy.
Id. at 890. With these attributes, the movie was an electioneering
communication under Colorados definition (and under the federal
definition), and it would therefore have been subject to various
reporting and disclosure requirements. Colo. Const. Art. XXVIII 7(a);
see also Rule 1.7. Indeed, the status of the movie as electioneering
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underfederal law was the very reason the Supreme Court was required
to answer the broader question presented in Citizens United:whether
corporations have a First Amendment right to engage in political
speech. Citizens United, 130 S. Ct. at 892 (As the foregoing analysis
confirms, the Court cannot resolve this case on a narrower ground
. . . .)
Thus, ifHillaryor, more accurately, a similar movie that
disparaged a candidate for state office4were broadcast in Colorado, the
creators of the movie would be required to make various disclosures:
the amount expended on the communication[], the name and address of any person that contribut[ed] more
than two hundred fifty dollars, and
the [donors] occupation and employer if the donor was anatural person.
C.R.S. 1-45-108(1)(a)(III).
The Paladino Plaintiffs exaggerations therefore fall flat. Indeed,
their arguments merely illustrate why campaign finance rules like
4 Colorado campaign finance law does not regulate electioneering
related to candidates for national office.
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those at issue in this case are necessary. Even parties represented by
counsel can misunderstand how campaign finance laws interact with
judicial precedent. Concise, accurate rules can help clear up this sort of
confusion.
D. Plaintiffs objections to Rule 18.1.8 are based on amisreading of the rule.
CEW and CCC5 simply misread Rule 18.1.8. They claim that the
rule dispenses with any good cause requirement and effectively
waives fines in advance and that the rule obviate[s] the need for any
particular committee to request a waiver. (CEW and CCC Op.-Ans. Br.
at 30.) This is incorrect. A person seeking a fee waiver under Rule
18.1.8 for failure to file a major contributor report must still submit a
request for waiver to the Secretary under Rule 18.1.1. This is made
clear by the structure of the rules: Rule 18.1.8 is a sub-rule within Rule
18.1, which is entitled, Requests for waiver or reduction of campaign
finance penalties. (Emphasis added.)
5 The Paladino Plaintiffs did not challenge Rule 18.1.8 in this
litigation.
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Rule 18.1.8 operates identically to the other good-cause scenarios,
codified in Rule 18.1.2, to which CEW and CCC do not object. Those
scenarios, as CEW and CCC admit, govern the Secretarys exercise of
discretion when presented with waiver requests that do demonstrate
good cause. (CEW and CCC Op.-Ans. Br. at 30.) Rule 18.1.8 merely
describes one additional scenario under which good cause exists to
excuse a campaign finance penalty.
In any event, the arguments CEW and CCC make on appeal do
not challenge the substance of Rule 18.1.8. Instead, their only concern
appears to be that a person or group seeking a fee waiver under Rule
18.1.8 should be required to submit a request for waiver to the
Secretary. Since this is already true, their objections are off the mark.
Rule 18.1.8 merely implements the Secretarys constitutional authority
to set aside or reduce the penalty [for failure to file a report] upon a
showing of good cause. Colo. Const. Art. XXVIII, 10(2)(c). CEW and
CCC have failed to identify any reason why this particular exercise of
that power is improper.
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ANSWER TO CEW AND CCCs CROSS-APPEAL:
Rule 1.7
I. Summary of Argument.Rule 1.7 does nothing more than clarify the definition of a term of
artelectioneering communicationbased on case law from Colorado
and the United States Supreme Court. Indeed, the substance of Rule
1.7 was in effect before the current Secretary took office: former Rule
9.4, Rule 1.7s predecessor, is identical to the new rule. As the district
court held, [t]he new rule adds no substantive additional terms and
imposes no additional restrictions over the old rule. (E-File R. at 389.)
The arguments CEW and CCC make against Rule 1.7 misread the
relevant precedent and the rule itself. When weighed against the proper
authoritiesthe decisions of this Court and the Colorado Supreme
CourtRule 1.7 must be upheld.
II. Standard of Review.The Court must presume that Rule 1.7, like the other rules at
issue in this case, is valid. Colo. Ground Water Commn v. Eagle Peak
Farms, 919 P.2d 212, 217 (Colo. 1996). Plaintiffs are required to prove
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the invalidity of the rule beyond a reasonable doubt. Colo. Citizens for
Ethics in Govt v. Comm. for the Am. Dream, 187 P.3d 1207, 1217 (Colo.
App. 2008). To do so, they bear the heavy burden of demonstrating that
the rule violated constitutional or statutory law, exceeded [the
Secretarys] authority, or lacked a basis in the record. Eagle Peak
Farms, 919 P.2d at 217.
Contrary to Plaintiffs arguments, the district court below did not
improperly conduct[] [its] de novo review by comparing Rule 1.7 to its
predecessor. (CEW and CCC Op.-Ans. Br. at 31.) The court properly
consulted recent case law from the Colorado Supreme Court, which
reaffirm[ed] the validity of Rule 1.7 and its reliance on the U.S.
Supreme Courts decision in Wisconsin Right to Life. (E. File. R. at 389.)
In recognizing that [t]he new rule adds no substantive additional terms
and imposes no additional restrictions over the old rule, the district
court was merely observing that Rule 1.7 reflects Colorados
longstanding approach to determining whether a communication
amounts to electioneering. (Id.) This Court, likewise, may consider
this fact in reviewing the validity of the rule.
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III. Argument.A.
Rule 1.7 is drawn directly from binding Coloradocase law, as modified by U.S. Supreme Court
jurisprudence.
Rule 1.7 clarifies the definition of electioneering communications
based on a line of case law that includes opinions from this Court, the
Colorado Supreme Court, and the U.S. Supreme Court.
In Harwood v. Senate Majority Fund, 141 P.3d 962 (Colo. App.
2006), this Court construed the term electioneering communication to
mean electoral advocacy. Id. at 966. To arrive at this construction,
the Court examined the intent of the voters who enacted the
constitutions electioneering provisions, concluding that the
electorate was concerned with regulating . . . speech designed to
influence the outcome of Colorado elections. The Court also examined
the plain meaning of the term electioneering, finding it to mean
try[ing] to sway public opinion especially by the use of propaganda.
Id. at 96566 (quoting Websters Third New International Dictionary
731 (1986)). Harwood then adopted an intent and effect test, holding
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that a communication is electioneering if the speaker intends or
tries or seeks to influence voters. 141 P.3d at 966.
After Harwood was decided, however, the United States Supreme
Court held that this type of intent-based test is too vague. Fed. Election
Commn v. Wis. Right to Life, Inc. (WRTL II), 551 U.S. 449, 468
(2007). Under an intent-and-effect test, identical communications could
be treated differently. Speakers wishing to influence an election could
be regulated, while speakers using the same words, but wishing only to
voice opinions on public issues, could not. Regulating speech based on
the intent of the speaker would therefore blanket[] with uncertainty
whatever may be said, and offer[] no security for free discussion; in
other words, intent-based regulation chill[s] core political speech. Id.
(quotingBuckley, 424 U.S. at 43).
Because of these problems, the Court held that intent-based
standards must give way to an objective approach, under which a
communication amounts to electioneering only if it is the functional
equivalent of express advocacythat is, only if it is susceptible of no
reasonable interpretation other than as an appeal to vote for or against
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a specific candidate. Id. at 470. The Court also provided a negative
definition, under which a communication is not electioneering if it
(1) merely take[s] a position on [an] issue and asks others to do the
same; (2) does not mention an election, candidacy, political party, or
challenger; and (3) does not take a position on a candidates character,
qualifications, or fitness for office. Id.
WRTL IIs holding therefore provided a roadmap for applying
Harwoods definition of electioneering. The Secretary, seeking to make
Colorado campaign finance law clear and understandable, explicitly
included that road map in Rule 1.7just as its predecessor, former Rule
9.4 did.6
Indeed, Rule 1.7 mirrors the language of the U.S. Supreme
Court and, just like former Rule 9.4, cites WRTL IIitself.
The Colorado Supreme Court recently made clear that Rule 1.7s
underpinnings remain sound. In Colorado Ethics Watch v. Senate
Majority Fund, the Court analyzed WRTLIIs formulation of the
6 The full text of Rule 1.7 and former Rule 9.4 is included in
Addendum A to the Secretarys Opening Brief.
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functional equivalent test. 269 P.3d at 125758 (quoting WRTL II, 551
U.S. at 470). The Court recognized that an intent-based test like the
one adopted in Harwood would serve as a deterrent and chill core
political speech and would open the door to burdensome litigation
about the subjective motivations of the speaker. Id. at 1257. The
functional equivalent test is therefore required in lieu of an intent-
based approach. Id.
Rule 1.7 is consistent with the Colorado Supreme Courts analysis.
It begins with Harwoods definition of electioneering but recognizes
that an intent-based approach cannot be used to determine whether
speech triggers campaign finance regulations. It therefore incorporates
recent case law, which, as the Colorado Supreme Court recognizes, is
designed to avoid burdensome litigation that chill[s] protected
political speech. Id.
B. The functional equivalent test is still relevantto Colorados regulation of electioneering.
CEW and CCC argue that Citizens United undermined the
significance ofWRTL IIand made the functional equivalent standard
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[] not applicable in Colorado. (CEW and CCC Op.-Ans. Br. at 34.) They
point to cases from various federal courts to suggest that the functional
equivalent test need not be grafted onto disclosure-only regimes. (Id.
at 4142.) They also claim that a Colorado Supreme Court case, which
applies the holding ofCitizens United to Colorados former ban on
corporate electioneering communications, makes WRTL IIirrelevant.
(Id. at 34 (citing In re Interrogatories, 227 P.3d 892 (Colo. 2010).)
This argument misses the point of Rule 1.7. The rule is based on
the accepted definition of electioneering in Colorado, which Harwood
established. Harwood, however, adopted an intent-based test, and both
the Colorado Supreme Court and the United States Supreme Court
acknowledge that this type of test creates constitutional problems. Rule
1.7 therefore incorporates recent precedent to explain how the definition
of electioneering in Colorado is applied. Other states, of course, may
use different definitions of electioneering with different constitutional
implications. But the question Rule 1.7 answers is one of Colorado law,
and cases interpreting other states laws do not address that question.
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In re Interrogatories does not alter this analysis. There, the
Colorado Supreme Court applied Citizens United to two specific
provisions of Colorado campaign finance law, Sections 3(4) and 6(2) of
Article XXVIII. In re Interrogatories, 227 P.3d at 894. The court
invalidated these provisions to the extent they banned speech by
corporations and unions. But the court said nothing about Colorados
definition of electioneering communications as interpreted by
Harwood. Indeed, that opinion said nothing at all about the functional
equivalent testeven though, at the time, former Rule 9.4 used that
test to define electioneering.
C. Rule 1.7 is identical to its predecessor and makesno changes to Colorado law.In an attempt to avoid the flaws in their arguments against Rule
1.7, CEW and CCC adopt a strained, erroneous reading of the rule.
They claim that the rule uses a term not found in former Rule 9.4the
functional equivalent of express advocacy . . . [and] provides a get-out-
of-reporting-free card. (CEW and CCC Op.-Ans. Br. at 4041.) They are
correct that the old rule did not use the label functional equivalent.
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But they are wrong on substance. Former Rule 9.4 and current Rule 1.7
both cite WRTL IIand explain that a communication is not
electioneering unless it is subject to no reasonable interpretation
other than an appeal to vote for or against a specific candidate. (Secy
Op. Br. at A-1.) The rules are substantively identical, as the district
court recognized below.
CEW and CCC also assert that the specific safe harbors in Rule
1.7.3 create regulatory exemptions and arbitrarily carve[] out
numerous types of advertisements. (CEW and CCC Op-Ans. Br. at 37.)
Those exemptions, however, come straight out ofWRTL II. And they
are not, in fact, safe harbors or exemptions at all7
they are merely
elements of the definition employed by the Supreme Court. Compare
7 Below, the Secretary referred to the negative definition of
electioneering as a safe harbor, but he never implied that the negative
definition is any broader than the functional equivalent test. (E-File
R. at 291.) Neither did the Supreme Court. WRTL II, 551 U.S. at 470.
Rule 1.7 merely clarifies which communications are, and which are not,subject to requirements imposed for electioneering communications.
(Admin. R. Vol. 1, Tab 1,Proposed Statement of Basis, Purpose, and
Specific Statutory Authority at 2.)
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Rule 1.7.3 with WRTL II, 551 U.S. at 470 (holding that communications
are not electioneering when they merely take a position on [an] issue
and ask others to do the same; when they do not mention an election,
candidacy, political party, or challenger; and when they do not take a
position on a candidates character, qualifications, or fitness for office)
Plaintiffs attempt to brush aside the fact that Rule 1.7 is
substantively identical to former Rule 9.4, hyperbolically arguing that
[d]uring the 2012 election, voters were left in the dark about [political]
ads thanks to the district courts erroneous ruling. (CEW and CCC Op.-
Ans. Br. at 35.) Yet they point to no 2012 political advertisement about
which Colorado voters were left in the dark, and the Secretary
certainly is not aware of one.
In any event, their argument assumes that Rule 1.7 somehow
changed Colorado law, when it did nothing of the sort. Rule 9.4, the
predecessor to Rule 1.7, explicitly adopted the HarwoodWRTL II
functional equivalent test. (Secy Op. Br. at A-1.) And administrative
law judges have been routinely applying that testin electioneering
disputes for years. SeeColo. League of Taxpayers, No. OS 2009-0001, at
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2 n.2 (Apr. 24, 2009) (ALJ Decision). Plaintiffs fail to explain how Rule
1.7 leaves voters in the dark when it is based on the very same case
law, and the same legal principles, as its predecessor.
Conclusion
The Secretary respectfully requests that the Court reverse the
district courts order as to Rules 1.18.2, 1.12.3, 7.2.1, 1.10, and 18.1.8(a)
and conclude that each of these rules is valid and enforceable. The
Secretary further requests that the Court affirm the district courts
order as to Rule 1.7.
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Respectfully submitted on April 25, 2013.
JOHN W. SUTHERS
Attorney General
/s/ Frederick R. Yarger
LEEANN MORRILL
First Assistant Attorney General
Public Officials Unit
State Services Section
FREDERICK YARGER, 39479*
Assistant Solicitor General
MATTHEW GROVE, 34269*
Assistant Attorney General
Public Officials Unit
State Services Section
Attorneys for Secretary Gessler
*Counsel of Record
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CERTIFICATE OF SERVICE
This is to certify that I have served this ANSWER-REPLY
BRIEF OF APPELLANT / CROSS-APPELLEE COLORADO
SECRETARY OF STATE on all parties by LexisNexis File & Serve at
Denver, Colorado, on April 25, 2013, addressed as follows:
Mark Grueskin
Heizer Paul Grueskin LLP2401 15th Street, Suite 300
Denver, Colorado 80202
Luis Toro
Margaret Perl
1630 Welton Street
Denver, Colorado 80202
Jennifer H. HuntHill & Robbins, P.C.
1441 18th Street, Suite 100
Denver, Colorado 80202-1256
/s/ Frederick R. Yarger
Frederick R. Yarger