{"id":75,"date":"2016-05-25T01:14:12","date_gmt":"2016-05-25T01:14:12","guid":{"rendered":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/?p=75"},"modified":"2016-05-25T01:14:12","modified_gmt":"2016-05-25T01:14:12","slug":"chilling-campaign-finance-law-upheld","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/chilling-campaign-finance-law-upheld\/","title":{"rendered":"“Chilling” Campaign Finance Law Upheld"},"content":{"rendered":"

\"moneyBy Joseph M. (Max) Swindle<\/a>; Staff Member (Vol. 14), Notes Editor (Vol. 15)<\/p>\n

Political silence, the inability to have one\u2019s voice heard, is an issue that marginalizes many citizens and residents. In an effort to remedy this pervasive issue, some citizens choose to give money to public policy think tanks that help foster discussion about important public policy topics. However, this important tool for political mobility seems to be under siege, as issue-focused organizations face costly litigation arising from burdensome reporting requirements.<\/p>\n

In 2005, Independence Institute (\u201cthe Institute\u201d), a Colorado think tank, commented on two referenda dealing with taxes and government spending. A referenda supporter sued the Institute, claiming that it was required to register as an \u201cissue committee\u201d with the state, and would therefore have to disclose the identities of its contributors. The complaint was thrown out, but not until the Institute incurred high costs. In addition to litigation costs, the Institute suffered immense opportunity costs. The time and money spent on the trial could have been spent educating the public on issues that impact their daily lives, like the tax referenda. Independence Inst. v. Coffman<\/em>, 209 P.3d 1130 (Colo. App. 2008).<\/p>\n

The Institute filed a lawsuit challenging Colorado\u2019s constitutional provisions that deal with campaign finance for their vague language, as well as their disclosure and reporting requirements. Specifically, the Institute believed that requiring issue committees to disclose individual identities violated the rights to anonymous speech and political participation. The provisions were ultimately upheld in Independence Institute v. Coffman<\/em>. Both the Colorado and United States Supreme Courts denied certiorari. 558 U.S. 1024 (2009).<\/p>\n

The Court of Appeals\u2019 ruling risks the possible chilling of organizations\u2019 political speech, thus limiting the information by which voters make informed voting decisions.<\/p>\n

The Burdensome Reporting Requirements<\/strong><\/p>\n

Article XXVIII of Colorado\u2019s Constitution establishes campaign and political finance laws as constitutional provisions. The provisions ensure \u201cthat large contributions made to influence election outcomes are not concealed, and that special interest groups cannot disproportionately influence elections outcomes.\u201d Independence Inst. v. Coffman<\/em>, 209 P.3d 1130, 1135 (Colo. App. 2008). Under these provisions, a group of persons who support or oppose any ballot issue is an \u201cissue committee\u201d when that group has contributions or expenditures in excess of $200. Colo. Const. Art. XXVIII (2015). Once registered, the Colorado Revised Statutes state than an issue committee must submit reports to the Secretary of State that contain \u201cthe name and address of each person who has contributed $20 or more\u201d and \u201cthe occupation and employer of each person who has made a contribution of $100 or more.\u201d Colo. Rev. Stat. \u00a7 1-45-108. Reporting requirements are traditionally justified as needed to ensure no one contributes more to a candidate than is legal<\/a>. These requirements are meant \u201cto give the electorate useful information concerning the candidate\u2019s views and those to whom the candidate is likely to be beholden.\u201d Colo. Const. Art. XXVIII, Section 1 (2015).<\/p>\n

Challenges to the Reporting Requirements<\/strong><\/p>\n

Soon after Independence Institute v. Bruescher<\/em>, another Colorado case addressed questions regarding the constitutionality of Colorado\u2019s campaign finance laws. In Sampson, et. al. v. Buescher<\/em> (10th Cir. 2010), a group of residents in Douglass County, Colorado, joined together to oppose an annexation election for their neighborhood. The group spoke publicly and circulated fact sheets opposing the annexation. Their activities and expenditures brought them within the state’s definition of a ballot issue committee. However, the group did not register and report as a ballot issue committee in accordance with Colorado law. A private enforcement action was brought against them, but was eventually settled. The group then brought suit challenging the constitutionality of Colorado\u2019s campaign finance laws. Sampson v. Buescher<\/em>, 625 F.3d 1247 (10th Cir. 2010).<\/p>\n

The United States Court of Appeals for the Tenth Circuit ruled that the campaign finance laws did burden the individual citizens\u2019 constitutional freedom of association. For example, the residents were burdened by attorney\u2019s fees that cost more than the money used to speak on the issue. What\u2019s more, the residents were burdened by the large amount of time, energy, and money needed to research the law and comply with its requirements. The Court found that the burdens imposed on the residents\u2019 First Amendment rights outweighed the public interest in the disclosure of donors. Sampson v. Buescher<\/em>, 625 F.3d 1247 (10th Cir. 2010). The Court held that the residents\u2019 right to association was infringed upon because there was not a substantial relation between the disclosure requirement and a sufficiently important governmental interest. Id.<\/em> at 1261.<\/p>\n

State Interest vs. First Amendment Rights<\/strong><\/p>\n

There are some factual differences between the Institute\u2019s case and the Sampson<\/em> case. The plaintiffs in Sampson<\/em> were a group of residents\u2014not a political organization. The key to theSampson<\/em> court\u2019s ruling was that the administrative and financial burdens the plaintiffs faced outweighed the state interest. One could argue those burdens are not as large for the Institute because it is a think tank, which presumably already keeps up with campaign finance laws.<\/p>\n

While that argument does have some merit, there are other factors that show how similar the two cases are and why the Independence Institute<\/em> court should have used a pattern of reasoning similar to the Sampson<\/em> court. Like the plaintiffs in Sampson<\/em>, the Institute is not supporting a candidate<\/em> but an issue<\/em>. These classic justifications for disclosure requirements are moot in the current case. The Institute is trying to educate citizens on an issue, not influence what individual candidate gets put into office. The speech in question is about an issue and not a candidate, and candidates are the focus of the campaign finance laws. In both cases, the organizations faced superfluous litigation that did not fit within the true purposes of Colorado\u2019s campaign finance laws. Finally, the lawsuits against both organizations contravene the public\u2019s and State\u2019s best interests.<\/p>\n

The Chilling Effect on Political Speech and Mobilization<\/strong><\/p>\n

The court\u2019s ruling in Independence Institute<\/em> will \u201cchill\u201d issue-oriented organizations from commenting on public policy. Organizations\u2019 concerns about the costly litigation that can arise out of these actions will reduce open discussion on important policy matters. As a result, the public will be less informed and what is in their best interest might not be achieved.<\/p>\n

Citizens give money to organizations like the Institute seeking to accomplish what individuals cannot, which is to build a voice loud enough to foster discussion on important topics. When these organizations are no longer willing to speak, it is actually the individual citizens whose voices are silenced.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Joseph M. (Max) Swindle; Staff Member (Vol. 14), Notes Editor (Vol. 15) Political silence, the inability to have one\u2019s voice heard, is an issue that marginalizes many citizens and residents. In an effort to remedy this pervasive issue, some citizens choose to give money to public policy think tanks that help foster discussion about …<\/a><\/p>\n","protected":false},"author":10,"featured_media":77,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[3],"tags":[49,85,157],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/75"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/comments?post=75"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/75\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media\/77"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media?parent=75"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/categories?post=75"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/tags?post=75"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}