FILED

United States Court of Appeals

Tenth Circuit

February 4, 2016
PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

INDEPENDENCE INSTITUTE,
Plaintiff-Appellant,
v.

No. 14-1463

WAYNE W. WILLIAMS, in his

official capacity as the Colorado
Secretary of State,
Defendant-Appellee.
COLORADO ETHICS WATCH;
COLORADO COMMON CAUSE;
DEMOCRACY 21; PUBLIC
CITIZEN; and THE CAMPAIGN
LEGAL CENTER,
Amici Curiae.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
(D.C. NO. 1:14-CV-02426-RBJ)

Allen Dickerson (Tyler Martinez, Center for Competitive Politics, and Shayne M.
Madsen and John Stuart Zakhem, Jackson Kelly, PLLC-Denver, with him on the
briefs), Center for Competitive Politics, Alexandria, Virginia, for Appellant.
Glenn E. Roper, Deputy Solicitor General (Cynthia H. Coffman, Attorney
General, Sueanna P. Johnson, Assistant Attorney General, and Frederick R.
Yarger, Assistant Solicitor General, with him on the brief) Office of the Attorney
General, Denver, Colorado, for Appellee.

Margaret G. Perl and Luis A. Toro, Colorado Ethics Watch, and Benjamin J.
Larson, Ireland Stapleton Pryor & Pascoe, PC, Denver, Colorado, on the brief for
Amici Curiae Colorado Ethics Watch and Colorado Common Cause.
Fred Wertheimer, Democracy 21, J. Gerald Hebert, Tara Malloy, Lawrence M.
Noble, and Megan McAllen, The Campaign Legal Center, Donald J. Simon,
Sonosky, Chambers, Sachse Enderson & Perry, LLP, and Scott L. Nelson, Public
Citizen Litigation Group, Washington, DC, on the brief for Amici Curiae The
Campaign Legal Center, Democracy 21 and Public Citizen.

Before TYMKOVICH, Chief Judge, MURPHY, and BACHARACH, Circuit

Judges.

TYMKOVICH, Chief Judge.

The Independence Institute is a nonprofit corporation, organized and taxexempt under 26 U.S.C. 501(c)(3), that conducts research and educates the
public on public policy. During the 2014 Colorado gubernatorial campaign, the
Institute intended to air an advertisement on Denver-area television that was
critical of the states failure to audit its new health care insurance exchange. The
ad culminates with an exhortation to viewers to call the incumbent governora
candidate in the electionand tell him to support an audit of the exchange.
The Institute is concerned that the ad qualifies as an electioneering
communication under the Colorado Constitution and, therefore, to run it the
Institute would have to disclose the identity of financial donors who funded the
ad. The Institute resists the disclosure requirement, arguing that the First

-2-

Amendment as interpreted by the Supreme Court in Buckley v. Valeo, 424 U.S. 1

(1976), prohibits disclosure of donors to an ad that is purely about a public policy
issue and is unrelated to a campaign.
We affirm the district courts grant of summary judgment to the Secretary.
Colorados disclosure requirements, as applied to this advertisement, meet the
exacting scrutiny standard articulated by the Supreme Court in Citizens United v.
Federal Election Commission, 558 U.S. 310 (2010). The provision serves the
legitimate interest of informing the public about the financing of ads that mention
political candidates in the final weeks of a campaign, and its scope is sufficiently
tailored to require disclosure only of funds earmarked for the financing of such
ads.

I. Background
Colorado requires any person who spends at least $1000 per year on
electioneering communications to disclose the name, address, and occupation of
any person who donates $250 or more for such communications. 1 Colo. Const.

In full, the provision provides:

(1) Any person who expends one thousand dollars or more
per calendar year on electioneering communications shall
submit reports to the secretary of state in accordance with
the schedule currently set forth in 1-45-108(2), C.R.S., or
any successor section. Such reports shall include spending
on such electioneering communications, and the name, and
address, of any person that contributes more than two
(continued...)
-3-

art. XXVIII, 6(1). For our purposes, electioneering communication is defined

as any communication broadcasted by television or radio that unambigously
refers to any candidate sixty days before a general election and targets an
audience that includes members of the electorate for such public office. Id.
2(7)(a). 2
1

(...continued)
hundred and fifty dollars per year to such person described
in this section for an electioneering communication. In the
case where the person is a natural person, such reports
shall also include the occupation and employer of such
natural person. The last such report shall be filed thirty
days after the applicable election.

Colo. Const. art. XXVIII, 6(1) (emphasis added). The Secretary interprets the
requirement to apply only to donations specifically earmarked for electioneering
communications. In other words, the donor must intend the donations be used for
electioneering communications and not for other activities of the speaker.
2

The full definition is as follows:

E l e c t i o n e e r i n g c o mmu n i c a t i o n me a n s [ A ] n y
communication broadcasted by television or radio, printed
in a newspaper or on a billboard, directly mailed or
delivered by hand to personal residences or otherwise
distributed that:
(I) Unambiguously refers to any candidate; and
(II) Is broadcasted, printed, mailed, delivered, or
distributed within thirty days before a primary election or
sixty days before a general election; and
(III) Is broadcasted to, printed in a newspaper distributed
to, mailed to, delivered by hand to, or otherwise
distributed to an audience that includes members of the
(continued...)
-4-

Last year, less than sixty days before Colorados gubernatorial election, the
Institute intended to run a television advertisement urging voters to support an
audit of Colorados Health Benefit Exchange. The ad mentioned Colorados
incumbent governor by name, instructing viewers to [c]all Governor
Hickenlooper and tell him to support legislation to audit the states health care
exchange. App. 14. Governor Hickenlooper was a candidate for re-election at
the time.
The full ad goes as follows:
2

(...continued)
electorate for such public office.

Colo. Const. art. XXVIII, 2(7)(a) (emphases added). Excluded from this
definition are:
(I) Any news articles, editorial endorsements, opinion or
commentary writings, or letters to the editor printed in a
newspaper, magazine or other periodical not owned or
controlled by a candidate or political party;
(II) Any editorial endorsements or opinions aired by a
broadcast facility not owned or controlled by a candidate
or political party;
(III) Any communication by persons made in the regular
course and scope of their business or any communication
made by a membership organization solely to members of
such organization and their families;
(IV) Any communication that refers to any candidate only
as part of the popular name of a bill or statute.
Id. 2(7)(b).
-5-

Audio

Visual

Doctors recommend a regular check

up to ensure good health.

Video of doctor and mother with

child.

Yet thousands of Coloradoans lost

their health insurance due to the new
federal law.

Headlines of lost insurance stories.

Many had to use the states

government-run health exchange to
find new insurance.

Denver Post headline Colorado

health exchange staff propose $13M
fee on all with insurance

Now theres talk of a new $13 million

fee on your insurance.
Its time for a check up for Colorados
health care exchange.
Call Governor Hickenlooper and tell
him to support legislation to audit
the states health care exchange.

INDEPENDENCE INSTITUTE IS
RESPONSIBLE FOR THE
CONTENT OF THIS
ADVERTISING.

Call Gov. Hickenlooper at (303) 8662471.

Tell him to support an audit of the
health care exchange.

Paid for by The Independence

Institute, Jon Caldara, President.
303-279-6536.
www.indepedenceinstitute.org

Id. Recognizing that its proposed ad would qualify as an electioneering

communication and fearing that compelled disclosure would infringe its
members First Amendment right to free association, the Institute sought a
preliminary injunction in federal court against the application of Colorados
disclosure requirements. The parties agreed to convert the motion for preliminary
-6-

injunction into a motion for summary judgment. The Secretary then cross-moved
for summary judgment. The district court entered judgment for the Secretary,
holding the disclosure requirements survived exacting scrutiny and, therefore, did
not violate the First Amendment. 3

II. Analysis
The Institute argues that applying Colorados disclosure requirements to
this particular ad would be unconstitutional because, in its view, the ad had
nothing to do with the governors reelection campaign. It merely advanced an
opinion about a public policy issue and informed viewers that they could take
action by calling the governor. This is true as far as it goes, but as we explain,
Supreme Court precedent allows limited disclosure requirements for certain types
of ads prior to an election even if the ads make no obvious reference to a
campaign.
We start with the Supreme Courts seminal campaign finance decision in
Buckley v. Valeo, 424 U.S. 1 (1976). The Federal Election Campaign Act of 1971
(FECA) placed limits on contributions to political campaigns and expenditures for
political communications. Both types of regulations impinge on protected

Although the 2014 gubernatorial election has passed, this appeal is not
moot. There is no dispute that the Institute intends to run similar ads in the
future. Moreover, it is clear in this case that there was not enough time to fully
litigate the issue during the sixty-day window provided by law and that a
significant chance exists for the alleged violation to recur. See Fleming v.
Gutierrez, 785 F.3d 442, 445-46 (10th Cir. 2015).
-7-

associational freedoms, id. at 22, which derive[] from the rights of [an]
organizations members to advocate their personal points of view in the most
effective way, id. at 75. Contribution limitations, however, entail[] only a
marginal restriction upon the contributors ability to engage in free
communication. Id. at 20. They are permissible as long as the Government
demonstrates that the limits are closely drawn to match a sufficiently important
interest. Randall v. Sorrell, 548 U.S. 230, 247 (2006) (internal quotation marks
omitted).
Expenditure limitations are another and more troublesome matter because
they necessarily reduce[] the quantity of expression by restricting the number of
issues discussed, the depth of their exploration, and the size of the audience
reached. Buckley, 424 U.S. at 19. Thus, they represent substantial rather than
merely theoretical restraints on the quantity and diversity of political speech. Id.
Spending limitations often go to core political speech by preclud[ing] most
associations from effectively amplifying the voice of their adherents. Id. at 22.
For these reasons, they have to satisfy strict scrutinya provision must be
narrowly tailored to further a compelling governmental interest. Citizens United,
558 U.S. at 340.
As to the compelled disclosure of donors who make political contributions
or expenditures, Buckley concluded that they, like contribution and spending
limitations, pose a significant threat to associational freedom. Buckley, 424 U.S.
-8-

at 6466. This is because financial transactions can reveal much about a

persons activities, associations, and beliefs. Id. at 66 (parentheses omitted).
But unlike contribution and spending limitations, disclosure requirements impose
no ceiling on campaign-related activities. Id. at 64. Accordingly, as emphasized
in Citizens United v. Federal Election Commission, to impose disclosure
requirements the government must only satisfy exacting scrutiny, which requires
a substantial relation between the disclosure requirement and a sufficiently
important governmental interest. 558 U.S. at 366-67 (internal quotation marks
omitted). The Buckley Court identified important government interests that could
meet the burden, including provid[ing] the electorate with information,
deter[ring] actual corruption and avoid[ing] the appearance of corruption, and
gathering the data necessary to detect violations of other election laws.
Buckley, 424 U.S. at 6668.
In applying these principles to the Institutes advertisement, our analysis
under exacting scrutiny is twofold. First, we explain that sufficiently tailored
disclosure requirements can reach at least some types of issue speech, including
speech that does not reference a particular election campaign but does mention a
candidate shortly before an election. We then hold the Colorado disclosure
requirements serve important government interests and are sufficiently tailored to
justify the compelled disclosure of donors to the ad.

-9-

A. Disclosure Requirements Can Reach Some Issue Speech, Including

Speech that Mentions a Candidate Shortly Before an Election
The Institute contends that the First Amendment right to free association
categorically shields proponents of speech that is unambiguously not campaignrelated from disclosure. Aplt. Br. at 22. In other words, the Institute agrees that
express advocacy in favor of or against candidates can be regulated, and even that
some advocacy that is not express, but sufficiently campaign-related, can also
be regulated. But it contends that genuine issue advocacy, even that which
mentions a candidate during campaign season, cannot be subjected to disclosure
requirements. It says the ad proposed here was on the genuine-issue side of the
line and protected from disclosure by the First Amendment.
The logic of Supreme Court case law does not support the Institutes
position as applied to its advertisement. Instead, the cases hold that television
advertisements that mention candidates shortly before elections can be considered
sufficiently related to campaigns to fall under permissible disclosure
regimesregimes whose precise requirements are cabined within the bounds of
exacting scrutiny. The question we face is whether the Institutes ad, which does
not explicitly reference any campaign or state any facts or opinions about
Governor Hickenlooper, can be subject to sufficiently tailored disclosure laws.
We hold it can.

-10-

In arguing that disclosure requirements cannot reach speech that is

unambiguously not campaign-related, the Institute takes us back to Buckley.
There, the Supreme Court limited disclosure requirements of FECA to speech that
was openly campaign-related. FECA required disclosure of every person (other
than a political committee or candidate) who ma[de] contributions or expenditures
aggregating over $100 in a calendar year other than by contribution to a political
committee or candidate. Buckley, 424 U.S. at 7475 (alterations and internal
quotation marks omitted). Qualifying expenditures were those made for the
purpose of influencing the nomination or election of candidates for federal
office. Id. at 77 (alterations and internal quotation marks omitted). The Court
held this language potentially vague because its scope was ambiguous and it
provided little notice as to what types of expenditures would be covered. Id. The
Court was also concerned that the statute was overbroad because it might
encompass groups engaged purely in issue discussion. Id. at 79; see also FEC
v. Mass. Citizens for Life, Inc. (MCFL), 479 U.S. 238, 24849 (1986) (describing
the Buckley Court as attempting to avoid problems of overbreadth).
To save the statute from unconstitutional vagueness and overbreadth, the
Court read it narrowly to reach only funds used for communications that
expressly advocate[d] the election or defeat of a clearly identified candidate.
Buckley, 424 U.S. at 80. In its famous footnote 52, the Court explained that
express words of advocacy of election or defeat included those such as vote
-11-

for, elect, support, cast your ballot for, Smith for Congress, vote against,
defeat, reject. Id. at 44 n.52. 4
Buckleys limitation of FECAs disclosure requirements to express
advocacy was directed precisely to that spending that is unambiguously related
to the campaign of a particular federal candidate. Id. at 80. In the Institutes
view, Buckley thus drew a constitutional boundary between truly campaignrelated speech and genuine issue advocacyspeech that does not reference a
particular campaign or share an opinion about a candidatewith the former
subject to regulation and the latter protected from disclosure. 5
But disclosure law has not been static and Buckley must be interpreted in
light of more recent Supreme Court elaboration. Several cases bear on our
understanding of the current state of disclosure law. First, in McConnell v.
Federal Election Commission, the Supreme Court explained that Buckleys linedrawing was the product of statutory interpretation rather than a constitutional

The Supreme Court in Citizens United clarified that express advocacy

or its functional equivalent is a communication that is susceptible of no
reasonable interpretation other than as an appeal to vote for or against a specific
candidate. 558 U.S. at 32425 (internal quotation marks omitted).
5

A genuine issue ad has been more precisely described as one that

focus[es] on a legislative issue, take[s] a position on the issue, exhort[s] the
public to adopt that position, and urge[s] the public to contact public officials
with respect to the matter, without mention[ing] an election, candidacy,
political party, or challenger or tak[ing] a position on a candidates character,
qualifications, or fitness for office. FEC v. Wis. Right to Life, Inc. (WRTL II),
551 U.S. 449, 470 (2007).
-12-

command and therefore that express advocacy might not be the outer limit of
what permissible regulation can reach. 540 U.S. 93, 19192 (2003), overruled on
other grounds by Citizens United, 558 U.S. at 36566. That was because Buckley
nowhere held a disclosure statute that was neither vague nor overbroad would be
required to toe the same express advocacy line. Id. at 192.
The Courts most recent campaign disclosure case that bears on our
understanding of Buckley is Citizens United. In that case, the Court confirmed
that there is no constitutionally mandated distinction between express advocacy
and some issue speech in the context of disclosure. As is the case here, the Court
considered an as-applied challenge to disclosure requirementsspecifically,
federal requirements that are substantially similar to Colorados requirements for
purposes of this appeal. By way of background, the Bipartisan Campaign Reform
Act of 2002 (BCRA, the successor to FECA) defines electioneering
communication as any broadcast, cable, or satellite communication that refers
to a clearly identified candidate for Federal office, that is made within sixty days
before a general election or thirty days before a primary election, and, in nonPresidential elections, that is targeted to the relevant electorate. 52 U.S.C.
30104(f)(3)(A)(i). The statute requires persons who spend at least $10,000 in
one year on electioneering communications to disclose, among other things, the

-13-

names and addresses of individuals who contribute $1000 or more to the pool of
funds used for those communications. Id. 30104(f)(1)(2). 6
During the 2008 campaign for the Democratic Partys presidential
nomination, Citizens United intended to broadcast advertisements for Hillary: The
Movie. The movie was a documentary critical of then-Senator Hillary Clinton, a
candidate for the nomination. The movie was so overtly critical, in fact, that the
Court found it was the functional equivalent of express advocacythere was no
reasonable interpretation of Hillary other than as an appeal to vote against

The statute specifies,

(E) If the disbursements were paid out of a segregated
bank account which consists of funds contributed solely by
individuals who are United States citizens or nationals or
lawfully admitted for permanent residence (as defined in
section 1101(a)(20) of Title 8) directly to this account for
electioneering communications, the names and addresses
of all contributors who contributed an aggregate amount of
$1,000 or more to that account during the period beginning
on the first day of the preceding calendar year and ending
on the disclosure date. Nothing in this subparagraph is to
be construed as a prohibition on the use of funds in such
a segregated account for a purpose other than
electioneering communications.
(F) If the disbursements were paid out of funds not
described in subparagraph (E), the names and addresses of
all contributors who contributed an aggregate amount of
$1,000 or more to the person making the disbursement
during the period beginning on the first day of the
preceding calendar year and ending on the disclosure date.

52 U.S.C. 30104(f)(2).
-14-

Senator Clinton. Citizens United, 558 U.S. at 326. But the ads promoting the
movie, although the Court found several of them pejorative, id. at 320, did not
amount to express advocacy. 7 Rather, they only urged viewers to see the movie
through Citizens Uniteds video-on-demand distribution service. 8 Nonetheless,
they qualified as electioneering communications under BCRA because they would
be broadcasted within thirty days before primary elections. Citizens United
objected on First Amendment grounds, contending that the disclosure statute
could only constitutionally cover the functional equivalent of express advocacy
and, thus, could not be applied to commercial advertisements that merely
encouraged viewers to watch a political documentary. Id. at 368.
The Court rejected Citizens Uniteds argument, first noting Buckleys
holding that [d]isclaimer and disclosure requirements may burden the ability to

One of the ads simply stated, If you thought you knew everything about
Hillary Clinton . . . wait til you see the movie. Text of Citizens Uniteds
Advertisements (Ex. 1 to Amended Verified Complaint), Citizens United v. FEC,
558 U.S. 310 (2009) (No. 08205).
8

In the Institutes view, the Court held the ads promoting the documentary
were themselves the functional equivalent of express advocacy. We see little
support for this, as the discussion to which the Institute refers is limited to
whether a provision of BCRA prohibiting the use of corporate and union general
treasury funds to fund electioneering communications could apply to the movie
itself. See Citizens United, 558 U.S. at 32426. The Courts conclusion was that
the movie qualified as express advocacy, id. at 325, but it nowhere suggested the
same about the ads. See also id. at 321 (describing Citizens Uniteds position as
(1) 441b is unconstitutional as applied [only] to Hillary; and (2) BCRAs
disclaimer and disclosure requirements . . . are unconstitutional as applied to
Hillary and to the three ads for the movie (emphasis added)).
-15-

speak, but . . . impose no ceiling on campaign-related activities and do not

prevent anyone from speaking. Id. at 366 (internal quotation marks omitted)
(quoting Buckley, 424 U.S. at 64). Disclosure requirements accordingly could
reach speech that was less explicit in conveying a message about a campaign. Id.
at 369. The ads for Hillary: The Movie were no exception because the public
has an interest in knowing who is speaking about a candidate shortly before an
election. Id. That informational interest alone was sufficiently important to
satisfy the First Amendment because transparency enables the electorate to make
informed decisions and give proper weight to different speakers and messages.
Id. at 36970. Moreover, the Court considered BCRAs disclosure requirements
less restrictive alternatives to more comprehensive regulations of speech, such
as subjecting speakers to PAC-like requirements. 9 Id. at 369. The statute
therefore survived exacting scrutiny as applied. 10
It follows from Citizens United that disclosure requirements can, if cabined
within the bounds of exacting scrutiny, reach beyond express advocacy to at least
9

The obligations that come with political committee status, including

reporting and auditing requirements, see Buckley, 424 U.S. at 6263, tend to be
considerably more burdensome than disclosure requirements, see, e.g., MCFL,
479 U.S. at 262.
10

The Supreme Court has also rejected a facial challenge to the same
disclosure requirements. McConnell, 540 U.S. at 196 (holding BCRA survived
exacting scrutiny, given the important state interests in providing the
electorate with information, deterring actual corruption and avoiding any
appearance thereof, and gathering the data necessary to enforce more substantive
electioneering restrictions).
-16-

some forms of issue speech. Three other circuits have reached the same
conclusion in upholding disclosure requirements. See Ctr. for Individual
Freedom v. Madigan, 697 F.3d 464, 484 (7th Cir. 2012) (Citizens United made
clear that the wooden distinction between express advocacy and issue discussion
does not apply in the disclosure context.); Natl Org. for Marriage v. McKee,
649 F.3d 34, 5455 (1st Cir. 2011) (We find it reasonably clear, in light of
Citizens United, that the distinction between issue discussion and express
advocacy has no place in First Amendment review of these sorts of disclosureoriented laws.); Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990, 1016
(9th Cir. 2010) (Given the Courts analysis in Citizens United, and its holding
that the government may impose disclosure requirements on speech, the position
that disclosure requirements cannot constitutionally reach issue advocacy is
unsupportable.).
Nonetheless, the Institute urges that we craft a distinction between what it
calls campaign-related issue speech and speech that is unambiguously not
campaign-related. Aplt. Br. at 22. The latter would be exempt from disclosure
requirements even if the former would not. But the reasoning in Citizens United
precludes that distinction. The Court did not rest its holding on the ground that
the public only has an interest in knowing who references a campaign shortly
before an election. Rather, the Court upheld the application of the statute because
of the publics interest in knowing who is speaking about a candidate shortly
-17-

before an election. Citizens United, 558 U.S. at 369 (emphasis added). Thus, in
insisting that its ad is not related to a campaign, see Aplt. Br. at 28, the
Institute begs the question. The logic of Citizens United is that advertisements
that mention a candidate shortly before an election are deemed sufficiently
campaign-related to implicate the governments interests in disclosure. While
this is obviously an expansion of Buckleys disclosure regime, the Court in
Citizens United was nearly unanimous in applying BCRAs disclosure
requirements both to Citizens Uniteds express advocacy and to ads that did not
take a position on a candidacy.
Moreover, the Institute has offered no principled mechanism for
distinguishing between campaign-related issue speech and speech that is not
campaign-related. It suggests that the latter is speech that does not, under any
reasonable interpretation, speak to the communications recipients about an
ongoing campaign for office. Aplt. Br. at 52. This definition does little more
than restate the term, unambiguously not campaign-related, and leads us back to
a categorical distinction between express and at least some issue advocacy that
the Court rejected in Citizens United. And it gives no indication of what would
qualify as speaking about an ongoing campaign. An advertisement
purporting merely to discuss an issue, while incidentally mentioning a candidate,
can nonetheless be construed as relating to the candidates campaign. The
advertisement here does not say much about Governor Hickenlooper, but it does
-18-

insinuate, at minimum, that he has failed to take action on an issue that the
Institute considers important. That could bear on his character or merits as a
candidate. C.f. Buckley, 424 U.S. at 42 (Candidates, especially incumbents, are
intimately tied to public issues involving legislative proposals and governmental
actions. Not only do candidates campaign on the basis of their positions on
various public issues, but campaigns themselves generate issues of public
interest.). The difficulty of reliably distinguishing between campaign-related
speech and non-campaign-related speech is why courts must look only to whether
the specific statutory definitions before them are sufficiently tailored to the
governments legitimate interests.
As an alternative, the Institute proposes that we limit disclosure laws to
speech that identifies a candidate and promotes, supports, attacks, or
opposes that candidate. 11 But this language would essentially impose an
express advocacy requirement, which, as we have explained, the Supreme Court
has rejected, for now, in the context of disclosure. See Citizens United, 558 U.S.
at 369.
Accordingly, the Institute has not shown that its ad is immune from welltailored disclosure requirements.

11

This mirrors one of four statutory definitions of federal election

activity, see 52 U.S.C. 30101(20)(A)(III), which is subject to extensive
contribution regulations, see McConnell, 540 U.S. at 16162.
-19-

B. Colorados Disclosure Regime Survives Exacting Scrutiny As Applied

to the Institutes Advertisement
Colorados disclosure requirements, which are substantially similar to the
portions of BCRA upheld in Citizens United, are sufficiently tailored to meet
exacting scrutiny.
To repeat, exacting scrutiny . . . requires a substantial relation between the
disclosure requirement and a sufficiently important governmental interest. Id. at
366-67 (internal quotation marks omitted). Like BCRA, Colorado only demands
disclosure for communications that unambiguously refer to a primary-election
candidate within thirty days of a primary election or a general-election candidate
within sixty days of a general election. See Colo. Const. art. XXVIII,
2(7)(a)(I)(II). The message also must be targeted to the relevant electorate.
Id. 2(7)(a)(III). In addition, only certain means of communication are covered:
any communication broadcasted by television or radio, printed in a newspaper or
on a billboard, directly mailed or delivered by hand to personal residences or
otherwise distributed . . . . Id. 2(7)(a). This is only slightly broader, if at all,
than the language of BCRA covering broadcast, cable, or satellite
communications. See 52 U.S.C. 30104(f)(3)(A)(I). At any rate, the difference
in breadth is insignificant as applied here because the Institutes ad would have
been a television broadcast, much like the ads in Citizens United. And it is

-20-

important to remember that the Institute need only disclose those donors who
have specifically earmarked their contributions for electioneering purposes. 12
It is also worth noting that the only marked difference between BCRA and
Colorados constitutional provision is that the latter is triggered at lower spending
thresholds. Compare 52 U.S.C. 30104(f)(1), 30104(f)(2)(E)(F) (requiring
those who annually spend an aggregate of $10,000 or more to disclose donors of
$1000 or more), with Colo. Const. art. XXVIII, 6(1) (requiring those who
annually spend $1000 or more to disclose donors of $250 or more). It is not
surprising, however, that a disclosure threshold for state elections is lower than an
otherwise comparable federal threshold. Smaller elections can be influenced by
less expensive communications. The Secretary has thus shown that Colorados
spending requirements are sufficiently tailored to the publics informational
interests.

12

As explained above, the Colorado Constitution states that disclosure

reports must include the names and addresses of those who contribute $250 or
more annually for an electioneering communication. Colo. Const. art. XXVIII,
6(1) (emphasis added). The Secretary interprets this language to apply only to
donations earmarked for electioneering communications. Colorado regulations
used to state this explicitly, see Colo. Code Regs. 1505-6:11.1 (2014), but no
longer do so, see Colo. Code Regs. 1505-6:11.1 (2015). Nonetheless, the
Secretary maintains that the language in the Colorado Constitution itself requires
express indication that the funds are to be used for a communication that would
meet the states definition of electioneering communication. Ultimately, any
question of the scope of the language will be settled by state or federal challenges
in an as-applied context.
-21-

In short, the same considerations that justify applying BCRA to ads

mentioning a candidate prior to an election justify applying Colorados disclosure
requirements to an ad mentioning a candidate prior to an election. While they
undoubtedly chill potential donors to some extent, these requirements are
sufficiently drawn to serve the publics informational interests and are less
restrictive than other alternatives. See Citizens United, 558 U.S. at 369. And the
Buckley language construing FECAs disclosure requirement as applying only to
spending that was unambiguously related to the campaign of a particular federal
candidate, 424 U.S. at 80, is not controlling because the Institute has not shown
that Colorados requirements are vague or overbroad on their face or as applied to
the advertisement. The Institute has not argued that they are vague, and, given
their close similarity to BCRA, they are not overbroad. In fact, consistent with
Buckley, they are related to campaigns to the extent that they concern the publics
interest in knowing who is speaking about a candidate shortly before an
election. See Citizens United, 558 U.S. at 369.
Finally, the Institute attempts to limit Citizens United to its bare facts. It
argues that whereas the ads for Hillary: The Movie were about Senator Clinton
and promoted a documentary that was highly critical of her, the Institutes ad
does not express views about Governor Hickenlooper. Regardless of whether we
agree with that description of the facts, it does not affect the outcome of this case.
The Courts reasoning in Citizens United did not fixate on the peculiarities of
-22-

Hillary: The Movie; instead, it held disclosure requirements could extend beyond
the functional equivalent of express advocacy and that the public has an interest
in knowing who communicates about a candidate shortly before an election. Id. 13
This is not the case where a plaintiff demonstrated that disclosure might
lead to retaliation against its members. In those circumstances, Citizens United
tells us that an as-applied challenge might be available if a group could show a
reasonable probability that disclosure of its contributors names will subject them
to threats, harassment, or reprisals from either Government officials or private
parties. 558 U.S. at 367 (internal quotation marks omitted)). But see id. at 484
(Thomas, J., dissenting in part) (noting that the availability of as-applied
challenges based on the threat of retaliation may not be enough to protect First
Amendment rights because disclosure permits citizens to react to the speech of
their political opponents in a properor undeniably improperway long before a

13

The Institute argues that this was dicta because the Court had already
held that Hillary: The Movie was the functional equivalent of express advocacy,
see Citizens United, 558 U.S. at 325, and, in the Institutes view, the Court had
also held the ads promoting the documentary were the functional equivalent of
express advocacy. As explained above, we disagree. But in any event, whether
the Courts reasoning was dicta does not affect our present analysis because this
court considers itself bound by Supreme Court dicta almost as firmly as by the
Courts outright holdings, particularly when the dicta is recent and not enfeebled
by later statements. Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996).
But see Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1136 (10th Cir. 2015)
(Tymkovich, J., dissenting in part) (Although we are bound by this recent
Supreme Court dicta, nothing about it ought to short-circuit our analysis of this
[law] as applied to [these circumstances]. (citation omitted)).
-23-

plaintiff could prevail on an as-applied challenge (alterations and internal

quotation marks omitted)).
But in this case the Institute does not argue it is subject to such concerns.
Thus, we simply hold that Citizens United is dispositive as to the constitutionality
of Colorados disclosure laws as applied to the Institutes ad.

III. Conclusion
For the foregoing reasons, we AFFIRM the district courts grant of
summary judgment to the Secretary.

-24-