ij amicus brief common cause v. gessler

7/31/2019 IJ Amicus Brief Common Cause v. Gessler

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Court of Appeals, State of Colorado

101 W. Colfax Avenue, Suite 800

Denver, Colorado 80202District Court, Cityand County of Denver, ColoradoTrial Court Judge: The Hon. A. Bruce JonesCase Number(s): 2011CV4164

COURT USE ONLY

Plaintiff-Appellees: Colorado Common Cause andColorado Ethics Watchv.Defendant-Appellant: Scott Gessler, in his officialcapacity as Colorado Secretary of State

Attorneys for Institute for Justice:William H. Mellor (Colorado Reg. No. 008402)Steven M. Simpson (D.C. Reg. No. 462553)*Institute for Justice901 North Glebe Road, Suite 900Arlington Virginia 22203Telephone Number: 703 682-9320Email: [email protected]; [email protected]

Katelynn K. McBride (Minn. Reg. No. 0392637)*Institute for Justice Minnesota Chapter527 Marquette Avenue, Suite 1600Minneapolis, Minnesota 55402Telephone: 612 435-3451Email: [email protected]

*Application forpro hac vice admission pending.

Case Number:

11CA2405

BRIEF OF AMICUS CURIAE INSTITUTE FOR JUSTICE


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CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with all applicable requirements of C.A.R.28 and C.A.R. 32, including all formatting requirements set forth in these rules.Specifically, the undersigned certifies that the brief complies with C.A.R. 28(g) inthat it contains 4,905 words and does not exceed 30 pages.

/s/ William H. MellorSignature of Attorney or Party


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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................................................................ ii

I. Introduction .................................................................................................... 1

II. Facts ............................................................................................................... 2

III. Summary of the Argument ............................................................................ 7

IV. Argument .....................................................................................................10

A. In Sampson, the Tenth Circuit Held Unconstitutionalthe Enforcement of Issue Committee Status As-Applied toAll Small Issue Committees ......................................................................10

B. Rule 4.27 Affected the Definition of Issue CommitteeContained in the Colorado Constitution Because the Tenth

Sampson Affected that Definition ...........................13

C. Rule 4.27 is Reasonable and Consistent with Sampson .....................16

.............................19

V. Conclusion .....................................................................................................


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TABLE OF AUTHORITIES

Page

Colorado Statutes and Rules

Colo. Rev. Stat. 1-45-108 & -109 (2006) ......................................................... 2

Rules Concerning Campaign and Political Finance,8 Colo. Code Regs. 1505-6:4.27..............................................................4, 6

Colorado Administrative Procedure Act, C.R.S. 24-4-103 ................................4

Colorado Cases

, 172 P.3d 964(Colo. App. 2007) ......................................................................................14

v. Comm. for theAmerican Dream, 187 P.3d 1207 (Colo. App. 2008) ......................... 10, 18

Colo. Common Cause v. Gessler, No. 2011CV4164 slip op.(Denver Dist. Ct., Nov. 17, 2011) .................................................. 8, 13, 19

Sampson v. Coffman, No. 06-cv-1858, 2008 U.S. Dist. 70583(D. Colo. Sept. 18, 2008) ...........................................................................21

Sanger v. Davis, 148 P.3d 404 (Colo. App. 2006) ....................................... 12, 15

Federal Cases

Am. Target Advert., Inc. v. Giani, 199 F.3d 1241 (10th Cir. 2000) ....................20

Assn. of Comty. Orgs. for Reform Now (ACORN) v.

Municipality of Golden, Colo., 744 F.2d 739 (10th Cir. 1984) .................21


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Buckley v. Am. Cons. Law Found., Inc.,525 U.S. 182 (1999)...................................................................................14

Citizens Against Rent Control/Coal. for Fair Hous. v.

City of Berkeley, 454 U.S. 290 (1981) .......................................................14

, 130 S. Ct. 876 (2010) . 12, 13, 16, 20

City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750 (1988)......................20

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) ..........................................15

N.C. Right to Life v. Leake, 525 F.3d 274 (4th Cir. 2008)...................................21

Reynolds v. Sims, 377 U.S. 533 (U.S. 1964)........................................................14

Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010) ...............................passim

Testa v. Katt, 330 U.S. 386 (1947) ......................................................................18

Other Authority

Colo. Const. art. XXVIII, 2(10)(a) .................................................................... 2

Colo. Const. art. XXVIII, 9(1)(b) .....................................................................13

Gessler News Release (Nov. 17 2011)http://content.govdelivery.com/bulletins/gd/COSOS-1d3b0f...............................4

Rulemaking Hearings 1-26-2011 and 5-3-http://www.sos.state.co.us/pubs/rule_making/hearings/2011/RulesHearingCPF201

10126.html .......................................................................................................4, 17


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Comments from Diana Hsieh, Ph.D., to Secretary of State Scott Gessler (May 3,2011)http://www.sos.state.co.us/pubs/rule_making/written_comments/2011/20110

503_HsiehDiana.pdf.............................................................................................. 5Comments from Kelley Nielsen to Secretary of State Scott Gessler (May 2, 2011)http://www.sos.state.co.us/pubs/rule_making/written_comments/2011/20110503_

Nielsen.pdf ............................................................................................................ 5

Comments from Ari Armstrong to Secretary of State Scott Gessler (May 2, 2011)http://www.sos.state.co.us/pubs/rule_making/written_comments/2011/20110502_Armstrong.pdf ....................................................................................................... 5

Comments from John Williams to Secretary of State Scott Gessler (Dec. 13, 2011)

http://www.sos.state.co.us/pubs/rule_making/written_comments/2011/20111213_Williams.pdf.......................................................................................................... 5

Comments from Elena Nunez, Program Director, Colorado Common Cause, toSecretary of State Scott Gessler (Jan. 26, 2011)http://www.sos.state.co.us/pubs/rule_making/written_comments/2011/20110126_

Nunez.pdf............................................................................................................... 6

Comments from Luis Toro, Director, Ethics Watch, to Secretary of State Scott

Gessler (May 3, 2011)http://www.sos.state.co.us/pubs/rule_making/written_comments/2011/20110503_Toro.pdf...................................................................................................................6


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I. IntroductionOn November 9, 2010, the United States Court of Appeals for the Tenth

registration, administrative, and disclosure laws for issue

committees to be unconstitutional as they applied to small groups like the plaintiffs

in that case. Sampson v. Buescher,625 F.3d 1247, 1249, 1261 (10th Cir. 2010).1 In

response to the decision, the Colorado Secretary of State promulgated a rule that

raised the issue committee registration threshold from $200 to $5,000. The result

was that groups, such as the plaintiffs in Sampson, would no longer have to register

as issue committees and be subjected to the administrative and disclosure laws that

the Court in Sampson held unconstitutional so long as they did not raise or spend

more than $5,000.

court decision which the State of Colorado is bound to follow. For the reasons

e was based

Sampson and its effect on

Colorado law.

1 As described more fully in the accompanying motion for leave to file this brief, Amicus,Institute for Justice, represented the plaintiffs in the Sampson case and has litigated many casesin courts across the nation, including courts in Colorado, on behalf of individuals and groupsasserting their First Amendment rights against campaign finance laws.


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II. FactsSampson v. Buescher

laws that apply to those who speak out for and against ballot issues. In 2006,

several residents of a neighborhood outside of Parker, Colorado, spoke out against

an effort to annex their neighborhood into the town of Parker. Sampson, 625 F.3d

at 1249. Because they spent more than $200 on things like signs, postcards, and the

. See Colo.

Const. art. XXVIII, 2(10)(a). As an issue committee, they were required, among

other things, to file a registration statement, open a bank account, track their

activities, and file periodic disclosure statements with the state. See Colo. Rev.

Stat. 1-45-108 &-109 (2006). Believing that the laws unconstitutionally

burdened their First Amendment rights, they filed suit in federal court. Sampson,

625 F.3d at 1249.

The Tenth Circuit agreed with the plaintiffs in Sampson that the registration,

reporting, and disclosure requirements for issue committees violated the First

Amendment as applied to them. In reaching that conclusion, the Tenth Circuit first

examined the burden the laws imposed on the plaintiffs. Sampson, 625 F.3d at

1254-1255. Among other things, the Court noted that the laws and regulations that

applied to issue committees were lengthy and often complex and that average


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citizens could not be expected to understand and apply them without hiring a

lawyer.Id. at 1259

her own the many campaign financial-disclosure requirements . . . ..

Next, the Tenth Circuit examined the ese

burdens on the plaintiffs. The Court began by questioning whether the State had

any interest in imposing registration, administrative, and disclosure requirements

on issue committees, as opposed to those who support or oppose candidates. As the

Court stated: [t]he legitimate reasons for regulating candidate campaigns apply

only partially (or perhaps not at all) to ballot-Id. at 1255.

However, even assuming that there was some interest in imposing these

requirements on groups such as the plaintiffs, the Court concluded that

virtually no proper governmental interest

low.Id. at 1249, 1261. The Court, however, did not purport to draw a bright line

registration, administrative, and disclosure obligations on ballot issue committees.

Id. at 1261. Instead, it simply recognized that the

exId. at 1261. Accordingly, the Court held that

the

committee and comply with the requirements for issue committees.Id. The Tenth


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Circuit also held that the plaintiffs were entitled to attorney fees.Id. Following the

decision, the state paid the plaintiffs over $600,000 in fees and costs.2

Following the decision, then Secretary of State Bernie

Buescher initiated proceedings to implement the decision by promulgating a new

campaign finance rule. Buescher proposed a new rule that would effectively

increasing the

threshold for registering an issue committee to $2,500. Rules Concerning

Campaign and Political Finance, 8 Colo. Code Regs. 1505-6:4.27 (proposed Dec.

10, 2010).

In November, 2010, Scott Gessler was elected Secretary of State. Secretary

Gessler c, proposing a new rule that

raised the registration threshold for issue committees to $5,000. Pursuant to

C.R.S. 24-4-103, Secretary Gessler

issued a notice of proposed rulemaking, solicited comments, and then held public

hearings on the proposed rule. C.R.S. 24-4-103.

2 , Colorado Secretary of State ScottGessler News Release (November, 17, 2011, 4:20 PM), http://content.govdelivery.com/bulletins/gd/COSOS-1d3b0f3 Rulemaking Hearings 1-26-2011 and 5-3-2011, Colo. Secretary of State Scott Gessler OfficialWebsite,http://www.sos.state.co.us/pubs/rule_making/hearings/2011/RulesHearingCPF20110126.html


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Overwhelmingly, the public comment and testimony supported raising the

threshold for issue committee registration and reporting.3

Some of those who

testified asked for a much higher threshold.4 Others were more satisfied with the

$5,5 But all of those

who testified in favor of the new ruleall of whom were individuals concerned

about the broad sweep of the campaign finance lawsstated that the $200

threshold was far too low.

Generally, those opposed to the rule did not present an alternative lower to

the proposed $5,000 rule but instead opposed any increase in the issue committee

threshold. For example, Common Cause, which was the main proponent of the

ballot issue that became Article 28 of the Colorado Constitution,6 urged the

4 Comments from Diana Hsieh, Ph.D, to Secretary of State Scott Gessler (May 3, 2011) availableat http://www.sos.state.co.us/pubs/rule_making/written_comments/2011/20110503_HsiehDiana.pdf(May 2, 2011), available at http://www.sos.state.co.us/pubs/rule_making/written_comments/2011/20110503_Nielsen.pdf as possible.Five thousand dollars is not high enough, Comments from John Williams, Colorado citizen, to Secretary of State Scott Gessler (Dec. 13,2011), available at http://www.sos.state.co.us/pubs/rule_making/written_comments/2011/20111213_Williams.pdf5 Comments from Ari Armstrong, Colorado citizen, to Secretary of State Scott Gessler (May 2,2011), available at http://www.sos.state.co.us/pubs/rule_making/written_comments/-2011/20110502_Armstrong.pdf.6 Brief for Colorado Common Cause as Amicus Curiae Supporting Respondents, Sampson v.Buescher, 625 F.3d 1247 (10th Cir. 2010) (Nos. 08-1389 & 1415).


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Secretary to reject the rule in its entirety and even expressed opposition to former

Secretary of State s lower $2,500 threshold.7

Colorado Ethics Watch also

indicated that the only threshold it found acceptable was the $200 threshold that

in Sampson.8

After the period for public comment and hearings closed, Secretary Gessler

promulgated Rule 4.27 on May 13, 2011. The Rule raised the issue committee

registration and reporting threshold from $200 to $5,000. Rules Concerning

Campaign and Political Finance, 8 Colo. Code Regs. 1505-6:4.27 (proposed Mar.

30, 2011). In September 2011, Colorado Ethics Watch and Common Cause filed

the instant suit, arguing that Secretary Gessler exceeded his authority by adopting

Rule 4.27.

The trial court agreed, holding that the Secretary of State lacked any

because Rule 4.27 altered the requirements of the Colorado Constitution. Colo.

7 Comments from Elena Nunez, Program Director, Colorado Common Cause, to Secretary ofState Scott Gessler (Jan. 26, 2011), available at http://www.sos.state.co.us/pubs/rule_making/-

written_comments/2011/20110126_Nunez.pdfoppose increasing the trigger for reporting.8 Comments from Luis Toro, Director, Ethics Watch, to Secretary of State Scott Gessler (May 3,2011), available at http://www.sos.state.co.us/pubs/rule_making/written_comments/2011/20110503_Toro.pdffact that the proposed Rule purports to relive issue committees of constitutional and statutory.


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Common Cause v. Gessler, No. 2011CV4164, slip op. (Denver Dist. Ct., Nov. 17,

2011). While the trial court seemed to recognize the clear implication of the Tenth

Sampsonthat

enforced in similar contexts to Sampson,id. at 9it nonetheless concluded that

in Rule 4.27 exceeded

his authority. And notwithstanding the Sampson

could be applied, the trial court seemed to conclude that the as-applied nature of

Sampson rendered the decision applicable only to the plaintiffs in Sampson.Id. at

8. Finally, the trial court suggested that instead of raising the threshold, the

Secretary should have streamlined the registration procedures or issued individual

as-applied waivers on a case by case basis.Id. at 9.

III. Summary of the ArgumentRule 4.27 is an entirely reasonable interpretation of a constitutional ruling

which the State of Colorado is bound to follow. T

the law in Colorado by holding that the registration, administrative, and reporting

regulations for issue committees cannot be applied to groups like the plaintiffs in

Sampson . In short, as the trial court noted, underSampson,

Sampson.Colo. Common


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Cause v. Gessler, No. 2011CV4164, slip op. at 4, 9 (Denver Dist. Ct., Nov. 17,

2011). As the chief executive officer in charge of enforcing the campaign finance

laws, Secretary Gessler, like his predecessor, sought to implement that ruling by

defining whaSampson. The rule he issued was

appropriately narrow, reflecting the as-applied nature o

decision, and was .

a misunderstanding

Sampson. It is true, as the trial court

-applied,

rather than a facial, ruling. But that fact only affects the class of individuals to

whom the ruling applies. That class is narrower than it would have been if the

decision had been made on facial grounds, but the as-applied nature of the ruling

does not relieve the State of Colorado from the obligation to implement the ruling.

The trial court also misunderstood the effect of

Constitution.

which, as the trial court itself recognized, meant that the definition of issue

contexts to SampsonId.

Because that definition is located in the Colorado Constitution, the Tenth Circuits


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decision necessarily affected the Colorado Constitution. That effect is not

somehow improper, as the trial court apparently believed. The Supreme Court has

long recognized that states are no more authorized to violate the federal

constitution in their own constitutions than they are authorized to do so in statutes.

In applying that constitutional ruling, Secretary Gessler simply determined that

contexts to Sampsongroups that raise or spend less than $5,000

for ballot issue advocacy. To the extent the Colorado Constitution has been

by this rule,

Rule 4.27 was a perfectly reasonable adaptation of the ruling in Sampson.

The plaintiffs in Sampson ended up raising $2,239.55for their ballot issue

advocacy. SeeSampson, 635 F.3d at 1261 n.5. The Tenth Circuit in Sampson held

plaintiffs to register as an issue committee was even arguably legitimate. Sampson,

625 F.3d at 1261. The difference between the amounts the plaintiffs in Sampson

raised and spent and the $5,000 threshold the Secretary established is well within

Neither the challengers to Rule 4.27 nor the trial court have proposed a more

appropriate means of implementiCommon Cause and


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Ethics Watch instead claim that the Secretary should have left the $200 threshold

in place, thus leaving a law that the Tenth Circuit found to be unconstitutional as

applied to a large class of citizensand whose enforcement cost the state over half

a million dollars in attorney feeson the books. The trial court suggested that the

Secretary ought to have implemented other alternativessuch as ad hoc

exemptions for specific groups or individualsthat would be blatantly

unconstitutional under the First Amendment. Absent even a suggested alternative

IV. ArgumentA.InSampson, the Tenth Circuit Held Unconstitutionalthe

Enforcement of Issue Committee Status As-Applied to All SmallIssue Committees.

The Tenth CircuitSampson necessarily means that issue

committee statusmeaning the requirement of registration and the obligations that

apply to issue committeescannot be applied to others similarly situated to the

plaintiffs in Sampson.

implementation of a constitutional ruling which the State of Colorado is bound to

follow. SeeColorado Citizens for Ethics in Govv. Comm. for the American

Dream, ) (


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depends upon whether it is reasonably related to a legitimate use of state

).

essential to

understanding the effect of the ruling on Colorado law. First, the Court concluded

that issue committee status imposed significant burdens on speakers, especially

average Sampson, 625 F. 3dat 1254,

1259. That conclusion was not limited to the disclosure laws that applied to issue

committees but extended to allthe legal obligations that were triggered when a

group met the definition of issue committee.Id. at 1259-60. Second, the Court

become issue committees

and to comply with the burdens associated with that status did not apply to groups,

like the plaintiffs in Sampson, that raise and spend relatively small amounts of

money.Id. at 1249, 1261. Indeed, the Court questioned whether such an interest

existed at allin the context of ballot issues.Id. at 1255, 1261. But even assuming

that the interest applied to ballot issue speakers, the Tenth Circuit held that the

triggered.Id. at 1261.

In sum, it was issue committee status as such that imposed the

unconstitutional burden on the plaintiffs in Sampson, and the


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imposing that burden did not apply until a group raised and spent well above what

the plaintiffs in the case raised and spent on their speech. Applying those burdens

to groups like the plaintiffs would threaten to chill their speech.Id. at 1254, 1261.

It follows that the proper remedy is to relieve groups like the plaintiffs in Sampson

of the obligation to become issue committees at all. As the trial court in this case

noted, that means not applying the definition of issue committee to such groups,

which is precisely what Secretary Gessler did by promulgating Rule 4.27.

Thus, it is irrelevant that the ruling in Sampson was an as-applied, rather

than a facial, ruling, because Secretary Gessler properly treated it as an as-applied

ruling. The Secretary recognized that the ruling was narrower than a facial ruling,

but he nonetheless recognized, as did the trial court, that as-applied rulings by their

nature apply not only to particular plaintiffs, but to others similarly situated. See,

e.g., 130 S. Ct. 876, 919 (2010)

(Roberts, J., concurring) (noting that an as-applied ruling would apply equally to

rporate plaintiff in the case);

Sanger v. Davis, 148 P.3d 404, 410 (Colo. App. 2006) (stating that when a statute

is held unconstitutional as-

future in a similar context.). Secretary Gessler thus recognized that, as the

Supreme Court stated in Citizens United, the distinction between facial and as-


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applied challenges goes to the breadth of the remedy employed by the Courtnot

whether the remedy applies to others besides the plaintiffs in the case at all. See

130 S. Ct. at 776. Consistent with this, the Secretary promulgated a rule that

applied only to those similarly situated to the plaintiffs in Sampson.

B.Rule 4.27 Affected the Definition of Issue Committee Contained inthe Colorado Constitution Because

Sampson Affected that Definition.

Sampson necessarily had

implications for the definition of issue committee, which is found in the Colorado

Constitution. Namely, as the trial court noted, Sampson means that the definition

cannot SampsonColo. Common Cause,No.

2011CV4164, slip op. at 4, 9. ule 4.27 simply

n be applied (and did

so reasonably, as demonstrated in the next section) the rule was a valid exercise of

power to promulgate rules

campaign finance law, a power which is itself found in the Colorado Constitution.

See Colo. Const. art. XXVIII, 9(1)(b).

It is irrelevant that R, as the

trial court contended, for the simple reason that the Secretary was following a

Colorado Constitution. As the


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Supreme Court and many other courts have held, states may not violate the federal

constitution through their own constitutions or through voter-enacted ballot

measures any more than they may do so through statutes or regulations. See, e.g.,

Buckley v. Am. Cons. Law Found.

more violate the United States Constitution by enacting a ballot issue than the

Citizens Against Rent

Control/Coal. for Fair Hous. v.City of Berkeley, 454 U.S. 290, 295 (1981)It is

irrelevant that the voters rather than a legislative body enacted 602, because the

voters may no more violate the Constitution by enacting a ballot measure than a

legislative body may ;Alliance for Colorado's

Families v. Gilbert, State constitutional

provisions that violate federal constitutional law can be held invalid either facially

or as applied..

The Tenth Circuit was therefore authorized to issue a decision that effectively

the definition of issue committee despite the fact that the definition is in

the Colorado Constitution. That decision was a valid exercise of the Tenth

premacy Clause of the U.S. Constitution. See, e.g.,

Reynolds v. Sims, 377 U.S. 533, 584 (U.S. 1964) (When there is an unavoidable


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conflict between the Federal and a State Constitution, the Supremacy Clause of

course controls..

In concluding that the Secretary exceeded his authority, the trial court

incorrectly relied on Sanger v. Davis, 148 P.3d 404 (2006). In Sanger, the

Secretary of State acted entirely on her own initiative, issuing a rule that redefined

as it is used in the Colorado Constitution.Id. at 412.Here, by

contrast, the Secretary of State acted directly in response to a constitutional ruling

by the Tenth Circuit and promulgated a rule that was consistent with the

decision. Moreover, in Sangernew rule had the effect of restricting

free speech rights by requiring organizations who wanted to contribute through

small donor committees to first obtain written permission from members.Id. at

s free speech rights by allowing

ordinary citizens to speak without having to comply with registration and

disclosure requirements that the Tenth Circuit found burdensome in violation of

the First Amendment. Secretary rule was thus entirely consistent with the

foundational premise of the First Amendment, according to which the law must

FEC v.

Wis. Right to Life, Inc., 551 U.S. 449, 469 (2007).


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Because Sampson applies to others similarly situated to the plaintiffs in that

case, in order to give effect to the ruling, the Secretary was bound to determine

what those other contexts were. The Secretary could no more ignore the ruling than

the Colorado General Assembly or any other branch of the state government could

do so. rule was an entirely reasonable

interpretation ofSampson.

C.Rule 4.27 is Reasonable and Consistent withSampson.The Court in Sampson below which a ballot-

issue committee cannot be required to report contributions and expenditures. 625

F.3d at 1261. The Tenth Circuit nonetheless recognized that the plaintiffs in

Sampson fell Id. It thus fell to Secretary Gessler to

determine where the line should be drawn. Failing to do so would have risked

additional litigation, additional attorney fees and costs, and the prospect of not

complying with a federal courtwould also have left the law unclear

in an area that impacts First Amendment rights and thus threatened to chill the very

speech the Tenth Circuit sought to protect in Sampson. See 625 F.3d at 1259-1260.

As the Supreme Court has repeatedly recognized, unclear laws chill speech. See,

e.g., Citizens United, 130 S. Ct. at 772 (Prolix laws chill speech for the same


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reason that vof common intelligence must

necessarily guess at [the law's] meaning and differ as to its application.).

Prior to promulgating the new rule, Secretary Gessler sought written

comments and held a hearing on his proposed rule. A number of individuals

submitted comments and testified at the hearing about the burdens of the issue

committee laws and their concerns about complying with those laws. Those

individualspreciSampson

supported raising the proposed threshold to $5000, with several supporting a

higher threshold.9 Based on this feedback, Secretary Gessler retained the $5000

threshold in the new rule, which was a mere $2760.45 more than the amount that

the plaintiffs in Sampson raised. SeeSampson, 635 F.3d at 1261 n.5 (noting that

the plaintiffs raised $2239.55 in cash and in-kind contributions).

The $5000 threshold established by Rule 4.27 is a perfectly reasonable

interpretation ofSampson. As noted, the Tenth Circuit held that the amounts raised

and spent by the plaintiffs in Sampson

Id. at 1261. The Secretary established that line roughly

$3000 above the amounts raised by the plaintiffs in Sampson. This was well within

9Rulemaking Hearings 1-26-2011 and 5-3-2011, Colo. Secretary of State Scott Gessler OfficialWebsite, http://www.sos.state.co.us/pubs/rule_making/hearings/2011/RulesHearingCPF20110126.html


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the

laws under the Colorado Constitution. Seev.

Comm. for the American Dream, 187 P.3d at 1217. Under the Supremacy Clause

campaign finance laws is necessarily informed by the Constitution and federal

court decisions interpreting it. See, e.g., Testa v. Katt, 330 U.S. 386, 391 (1947)

[T]he Constitution and the laws passed pursuant to it are the supreme laws of the

land, binding alike upon states, courts, and the people, any Thing in the

Constitution or Laws of any State to the Contrary notwithstanding.. Sampson is

such a decision, and the Secretary was therefore not entitled to ignore itnor,

importantly, its recognition that the line delimiting the States legitimate interest

was well above the amount raised by the plaintiffs in Sampson. SeeSampson, 625

F.3d at 1261.

Yet the trial court concluded that the Secretary lacked the authority to draw

the line at $5000in effect, concluding that a difference of $3000 was outside the

Sampson. The trial court offered no reason

for this conclusion other than its view that the Secretary was not authorized to

Sampson was an as-applied decision.

As shown above, those conclusions were incorrect. As shown in the next section,


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the trial courtule 4.27 are either inadequate or obviously

unconstitutional.

D.Would Violate the First Amendment.

The trial court proposed two alternatives to Rule 4.27 that the court

apparently believed would implement the Tenth CircuitHowever, neither

proposed alternative adequately corrects the constitutional infirmity in the law and

one would be blatantly unconstitutional.

First, the court suggested that instead of changing the threshold for issue

committees, t]he Secretary, being empowered to impose sanctions for violations

and to streamline the registration process, might have implemented rules that

Colo. Common Cause,No. 2011CV4164, slip op. at 4,

9. Presumably, the trial court meant that the Secretary could issue new rules that

minimized the burden of the issue committee laws on groups similarly situated to

the plaintiffs in Sampson. However, to do this, the Secretary would still have to

determine what groups were similar to the plaintiffs in Sampson. Since the Tenth

Circuit defined such groups based on the amounts they raised and spent, the

Secretary would still be in the position of establishing some sort of a monetary

threshold. In short, the Secretary would be in the same position that led him to

raise the threshold in the definition of issue committee. As a result, anything short


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of suspending all the laws that apply to issue committees for such groups would

not be consistent with Sampson.

Second, the trial court suggested that as an alternative to a new monetary

threshold for issue committees, the Secretary

allowed for waivers, on an as-applied basis, consistent with SampsonId.

However, a case by case exemption from laws that burden speech would be

blatantly unconstitutional, because it would mean vesting arbitrary authority in an

official to decide whose speech will be burdened and whose will not. Indeed, in

Citizens United, the Supreme Court likened the process of applying for advisory

rulings on the application of campaign finance laws to a prior restraint because it

gave bureaucrats a power analogous to licensing laws implemented in 16th- and

17th-century England, laws and governmental practices of the sort that the First

Amendment was drawn to prohibit.Citizens United, 130 S. Ct. at 895-96.

Allowing officials to make ad hoc decisions on matters that involve free speech

rights has long been unconstitutional. See, e.g., City of Lakewood v. Plain Dealer

Pub. Co., 486 U.S. 750, 770 (1988) (octrine forbidding

unbridled discretion

that officials will make decisions only for legitimate reasons.);Am. Target Advert.,

Inc. v. Giani, 199 F.3d 1241, 1252 (10th not condition


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upon the uncontrolled will of an official--as by requiring a

permit or license which may be granted or withheld in the discretion of such

officialAssn. of Cmty. Orgs. for Reform Now, (ACORN) v. Municipality of

Golden, Colo., 744 F.2d 739, 746 (10th

hands of an official to grant or deny a license, such a statute creates a threat of

censorship that by its very existence chills free speech.;N.C. Right to Life v.

Leake, 525 F.3d 274, 290 (4th Unguided regulatory discretion and the

potential for regulatory abuse are the very burdens to which political speech must

.

Indeed, the Sampson plaintiffs did not even know that the $200 registration

requirement existed until they were sued for violating it. SeeSampson v. Coffman,

No. 06-cv-1858, 2008 U.S. Dist. LEXIS 70583, at *8 (D. Colo. Sept. 18,

2008) sed by this filing and the subpoenas issued to

them, apparently having no prior knowledge of the Colorado law regarding the

. If the law was unconstitutional under the facts

ofSampson, it is inconceivable that it would be constitutional to require the

Sampson plaintiffs to have petitioned for a waiver in order to find out whether they

had to submit to the burdens of registration.


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22

The trial court provided no reasonable alternative to Rule 4.27, and under

the holding ofSampson, there was no alternative to raising the monetary threshold

that triggers issue committee status. As a result, the trial court should have deferred

Sampson decision.

V. Conclusion

For the forgoing reasons, this Court should reverse the trial court and

reinstate Rule 4.27.

DATED this9th day of April, 2012.

Respectfully submitted,

/s/ William H. MellorWilliam H. Mellor (CO Reg. No.008402)Steven Simpson (DC Reg. No. 462553)*

Institute for Justice901 North Glebe Road, Suite 900Arlington, Virginia 22203-1854Telephone: (703) [email protected]; [email protected]

Katelynn McBride (MN Reg. No. 0392637)*Institute for Justice Minnesota Chapter527 Marquette Avenue, Suite 1600Minneapolis, Minnesota 55402-1330

Telephone: (612) [email protected]

Attorneys for Amicus Curiae Institute for Justice

*Applications forPro Hac Vice admission pending


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CERTIFICATE OF SERVICE

I hereby certify that on the 9thday of April, 2012, I duly served a true andcomplete copy of the foregoing Brief of Amicus Curiae Institute for Justice to thefollowing persons by the method listed below:

Name Law Firm and/or Address Method of Service

Jennifer Hutchinson Hunt Hill & Robbins PC E-service

Nathan P. Flynn Hill & Robbins PC E-service

Luis Toro Colorado Ethics Watch E-service

Jason Wesoky Darling Milligan Smith Lesch E-service

Maurice Knaiser Colorado Attorney General E-service

Scott Gessler Colorado Secretary of State E-service

/s/ Margaret DaggsMargaret DaggsINSTITUTE FOR JUSTICEMINNESOTA CHAPTER527 Marquette Avenue, Suite 1600Minneapolis, Minnesota 55402-1330

(612) 435-3451

ij amicus brief common cause v. gessler

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