IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02850-CMA-KLM
ROCKY MOUNTAIN GUN OWNERS, et al.,
Plaintiffs,
v.
SCOTT GESSLER, et al.,
Defendants.
COLORADO ETHICS WATCHS BRIEF IN OPPOSITION TO
PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION
Colorado Ethics Watch (Ethics Watch), through undersigned counsel, hereby
submits this brief in opposition to the motion for preliminary injunction filed by Plaintiffs
Rocky Mountain Gun Owners (RMGO) and Colorado Campaign for Life (CCL).
INTRODUCTION
RMGO and CCL seek a preliminary injunction from this Court to halt
administrative enforcement proceedings regarding unreported electioneering conduct
that occurred over five months ago. Each organization admits to sending mailers in
June 2014 that meet the definition of electioneering communications in Article XXVIII,
2(7) of the Colorado Constitution without filing disclosures with the Colorado Secretary
of State. (Pl. Br. at 6). Indeed, both organizations have stipulated to all the material facts
in the administrative case which gave rise to this complaint. See Stipulation of Facts
dated Oct. 10, 2014 (copy attached as Exhibit 1). Rather than face the legal
consequences of their actions, RMGO and CCL ask the Court to hold Colorados
electioneering communication disclosure law facially unconstitutional and enjoin
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pending administrative proceedings to enforce this law. Even if RMGO and CCL had
valid constitutional claims against the electioneering communications disclosure
provisions in Article XXVIII, there is no basis for a preliminary injunction because this
case involves past conduct and there is no imminent harm to these organizations.
The preliminary injunction must also be denied because RMGO and CCL have
no likelihood of success on the merits. The U.S. Supreme Court has repeatedly upheld
electioneering communications disclosure provisions as constitutional. See McConnell
v. Fed. Election Commn, 540 U.S. 93, 196-99 (2003) (rejecting facial challenge to
electioneering communications provision); Citizens United v. Fed. Election Commn,
558 U.S. 310, 366-71 (2010) (Citizens United I) (8-1 opinion upholding disclosure
requirements as applied to nonprofit corporations making electioneering
communications). Disregarding this precedent, the preliminary injunction motion rests
upon cases regarding Colorados separate regime for issue committee registration and
reporting, and a single case from the Seventh Circuit regarding a Wisconsin law that is
materially distinct from Colorados electioneering communications disclosure law. See
Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010); Coal. for Secular Govt v.
Gessler, No. 1:12-cv-01708-JLKKLM, 2014 U.S. Dist. LEXIS 144389 (D. Colo. Oct. 10,
2014) (CSG); see also Wisconsin Right to Life v. Barland, 751 F.3d 804 (7th Cir. 2014)
(Barland). None of the authority cited by RMGO and CCL overrules Supreme Court
precedent approving electioneering communication disclosures like those required in
Colorado.

This case is the latest in a trio of constitutional attacks against Colorados

electioneering communications disclosure provisions by groups seeking to avoid
disclosure when engaging in targeted advertising about state candidates in the final
days of the election cycle. Unlike the plaintiffs in Citizens United v. Gessler, No. 141387, 2014 U.S. App. LEXIS 20792 (10th Cir. Oct. 27, 2014) (Citizens United II)1,
these plaintiffs have no claim to a media entity status exemption. This case is more
like Independence Institute v. Gessler, No.14-cv-02425-RBJ, 2014 U.S. Dist. LEXIS
150272 (D. Colo. Oct. 22, 2014), in which this Court rejected a challenge to the
electioneering communications disclosure requirements because the question has been
settled by the Supreme Court. See Citizens United I, 558 U.S. at 367.
FACTUAL AND PROCEDURAL BACKGROUND
I.

Colorados Campaign Finance System

In 2002, Colorado voters passed Amendment 27 and adopted a comprehensive

campaign and political finance system, declaring, inter alia, that the interests of the
public are best served by . . . providing for full and timely disclosure offunding of
electioneering communications, and strong enforcement of campaign finance
requirements. Colo. Const. art. XXVIII, 1. Together with the Fair Campaign Practices
Act (FCPA), C.R.S. 1-45-101,et seq., Article XXVIII establishes various registration
and reporting requirements.
For example, state candidates, political parties, issue committees and political
committees (PACs) are required to register, provide treasurer and bank information,
1

The Tenth Circuit ordered the Citizens United II opinion to be published on November 12,
2014.

and file regularly scheduled reports reflecting all funds flowing in and out of the
committee based on a calendar issued by the Secretary of State. See C.R.S. 1-45108(1)(a)(I). These different types of reporting committees are defined by their activities
and must initially register after passing a certain dollar threshold of activity. See, e.g.,
Colo. Const. art. XXVIII, 2(10) (defining issue committee as a group of two or more
persons that has a major purpose of opposing or supporting a ballot issue and receives
contributions or makes expenditures in excess of $200 to support or oppose a ballot
issue). None of these PAC-like requirements are at issue in this case.
Electioneering communications is a separate category of political spending
defined in Colo. Const. art. XXVIII, 2(7) that it is not linked to any particular type of
registered committee. An individual or group must file a disclosure statement if it
broadcasts, prints or mails an ad which unambiguously refers to any candidate inside
that candidates district within the last thirty days before a primary election or sixty days
before a general election. Colo. Const. art. XXVIII, 2(7); 6(1). The definition is based
upon the federal electioneering communications law. See 52 U.S.C. 30104(f)(3).
There is no requirement to register a committee; the law requires only the filing of an
online transaction report that includes the following information:
1.
All spending of $1,000 or more on the electioneering
communication,
including
name,
address,
and
method
of
communication. See Colo. Const. art XXVIII, 6(1); 8 C.C.R. 1505-6,
Rule 11.3.
2.
The name of the candidate(s) unambiguously referred to in the
electioneering communication. See 8 C.C.R. 1505-6, Rule 11.5.
3.
The names and addresses of persons contributing $250 or more for
electioneering communications.
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See Colo. Const. art XXVIII, 6(1); C.R.S. 1-45-108(1)(a)(III). When, as here, the
organization reporting an electioneering communication is a corporation, the report must
only disclose the names of donors who gave money specifically earmarked for
electioneering communications. See 8 C.C.R. 1505-6, Rule 11.1. Once the information
has been reported, there is no continuing obligation to file disclosures unless or until
that person or organization makes another electioneering communication.
Article XXVIII and the FCPA also establish a two-track enforcement system.
Late filings by registered entities are subject to a fine of $50 per day, but may be
reduced by the Secretary upon a showing of good cause. See Colo. Const. art. XXVIII,
10(2). All other violations of Article XXVIII and the FCPA are enforced only through a
litigation process pursuant to which any person may file a complaint with the
Secretary, who refers the case to an administrative law judge for resolution. See Colo.
Const. art. XXVIII, 9(2)(a); C.R.S. 1-45-111.5(1.5)(a). Courts in such cases may
impose fines of up to $50 per day for violations of disclosure requirements. See Colo.
Const. art. XXVIII, 10(2). Orders by the administrative judge are reviewable by the
Colorado Court of Appeals. See Colo. Const. art. XXVIII, 9(2)(a).
II.

The Underlying Administrative Case Regarding RMGO and CCL Mailings

Filling a void that exists because Colorado law leaves most campaign finance

law enforcement to the private sector, nonprofit Ethics Watch has filed and litigated
several campaign finance complaints in Colorados administrative courts. Ethics Watch
filed a campaign finance complaint against RMGO and CCL on September 9, 2014
alleging violations of the constitutional and statutory electioneering communications
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disclosure requirements in connection with mailings sent to Republican primary voters

in two Colorado state Senate districts in June 2014.
In anticipation of a hearing originally scheduled for September 23, Ethics Watch
filed notices of depositions and requests for documents in September. Exercising their
right under Colo. Const. art. XXVIII, 9(2)(a) to an automatic continuance, RMGO and
CCL were able to reschedule the hearing for November 6. See CCLs and RMGOs
Motion for Extension of Time for Hearing in OS 2014-0025 (copy attached as Exhibit 2).
All discovery requests were withdrawn before responses were required, or depositions
were held, because the parties agreed to a joint stipulation of facts, which was filed with
the Office of Administrative Courts on October 20, 2014. See Exhibit 1. That same day,
Ethics Watch received a copy of the Complaint in this matter. The administrative law
judge has continued the hearing again, to December 17, and Ethics Watch did not
oppose that continuance. Based on the stipulated facts and exhibits, Ethics Watch
anticipates that the administrative hearing will not require live testimony.
ARGUMENT
Under the traditional four-prong test for a preliminary injunction, the party
moving for an injunction must show: (1) a likelihood of success on the merits; (2) a likely
threat of irreparable harm to the movant; (3) the harm alleged by the movant outweighs
any harm to the non-moving party; and (4) an injunction is in the public interest. Hobby
Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1128 (10th Cir. 2013), affd sub nom.
Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751 (2014). RMGO and CCL fail this test.

I.

Plaintiffs Have No Likelihood of Success on the Merits

In support of the Motion, RMGO and CCL argue that Colorados electioneering

communications disclosure law is unconstitutionally overbroad and that the $1,000

threshold for reporting is unconstitutionally low. Neither challenge has any likelihood of
success in the face of years of precedent holding electioneering communications
disclosure requirements constitutional. See Hobby Lobby, 723 F.3d at 1145 ([I]n First
Amendment cases, the likelihood of success on the merits will often be the
determinative factor.) (internal quotation marks and citations omitted).
A. The U.S. Supreme Court has twice upheld disclosure requirements
for Electioneering Communications
RMGO and CCLs facial overbreadth challenge to electioneering communication
disclosure requirements comes ten years too late. Plaintiffs argue that only express
advocacy or its equivalent may be regulated, but the express advocacy limitation
does not apply to laws such as Colorados that require only disclosure of contributions
and spending for electioneering communications. See Citizens United I, 558 U.S. at
368-69 (rejecting the express advocacy limitation on disclosures). Disclosure-only laws,
like the transactional electioneering communications reporting in Colorado, have been
consistently reviewed with a lower level of constitutional scrutiny because those laws
pose far less risk of infringement on free speech than bans or limits on spending. See
Citizens United I, 558 U.S. at 369 (discussing the application of this principle in cases
from Buckley v. Valeo, 424 U.S. 1 (1976), to the present); N.M. Youth Organized v.
Herrera, 611 F.3d 669, 676 (10th Cir. 2010) (distinguishing lower level of scrutiny as
applied to disclosure regulations). In assessing the constitutionality of Colorados
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disclosure requirements, we consider whether they satisfy exacting scrutiny. Citizens

United II, 2014 U.S. App. LEXIS 20792, at *23.
Colorados electioneering communications definition is practically the same as
the federal definition that has twice been held constitutional for requiring disclosures by
the Supreme Court under exacting scrutiny. First, the Supreme Court rejected a facial
challenge to the federal electioneering communications provision based on these same
overbreadth arguments in McConnell, 540 U.S. at 190-93. Next, the Supreme Court in
Citizens United I struck down the provision which prohibited corporations from making
electioneering communications, but upheld the electioneering communication disclosure
requirement without any limitation to ads that expressly advocate for or against
candidates. Citizens United I, 558 U.S. at 370. The Supreme Court endorsed disclosure
as necessary for voters to make informed decisions and give proper weight to different
speakers and messages. Id. at 371. The Tenth Circuit has interpreted Citizens United I
as holding disclaimer and disclosure requirements constitutionally applicable to all
electioneering communications. See Free Speech v. Fed. Election Commn, 720 F.3d
788, 795 (10th Cir. 2013).
RMGO and CCL attempt to avoid this precedent by basing their overbreadth
challenge on the Seventh Circuits review of a Wisconsin law that is not analogous to
Colorados electioneering communications disclosure requirements. The law reviewed
in Barland required registration of a committee before any political speech was made
and imposed PAC-like reporting requirements, i.e., ongoing entity registration and
reporting as opposed to transaction-based disclosure. See Barland, 751 F.3d at 812-13.
8

In contrast, Colorados electioneering communications disclosures are transactionbased, occur only after the speech has been made, and include information that is
relevant to citizens, but not burdensome to entities filing the report. See Citizens United
II, 2014 U.S. App. LEXIS 20792, at *29. (Colorados disclosure requirements are not
expansive.). Colorado electioneering communications reports require only disclosure of
the spending and earmarked donations linked to that specific mailing, not a listing of all
money flowing in and out of the organization like in Wisconsin. Barland itself
distinguishes Wisconsins PAC-like requirements from the event-driven disclosure for
federal electioneering communications that were approved by the Supreme Court in
Citizens United I. Barland, 751 F.3d at 836. Colorados law is not subject to the same
overbreadth concerns as Wisconsins because it does not impose PAC-like
registration and ongoing reporting requirements. Colorados electioneering
communications disclosures are constitutional under McConnell and Citizens United I.
See Independence Institute, 2014 U.S. Dist. LEXIS 150272, at *15 (the plaintiffs
challenge must fail for the same reason the facial challenge failed in McConnell).
B. RMGO and CCL Have Not Presented a Credible Challenge to $1,000
Threshold for Electioneering Communications
The Plaintiffs challenge to the $1,000 threshold is also based on the false
premise that electioneering communications disclosures in Colorado require PAC-like
reporting and disclosure requirements. The two cases relied upon by RMGO and CCL
interpret Colorados issue committee provision, which requires registration of a
committee and ongoing periodic reporting of all money raised and spent by a committee
after reaching a $200 threshold of activity supporting or opposing a ballot measure. See
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Sampson, 625 F.3d at 1249; CSG, 2014 U.S. Dist. LEXIS 144389, at *3. This analysis
is not controlling in a review here of transactional electioneering communications
reports subject to a higher starting threshold of $1,000. See also Barland, 751 F.3d at
837 ($300 threshold for PAC-like registration and reporting requirements). Colorado
electioneering communications law has a threshold that is five times the amount
reviewed in Sampson and CSG for a transactional (not PAC-like) reporting
requirement. In addition, much of Sampsons holding rests on the assumption that the
states interest in requiring disclosures of spending in ballot initiative elections is weaker
than its interest in requiring disclosure in elections involving candidates for office. See
Sampson, 625 F.3d at 1255-56; CSG, 2014 U.S. Dist. LEXIS 144389 at *12-*13
(quoting Sampson). The electioneering communications disclosure at issue in this case
applies only to state candidate elections where public interest in disclosure is high.
Moreover, both Sampson and CSG were fact-intensive inquiries for as-applied
challenges to the $200 issue committee threshold that do not govern the review in this
case. See Sampson, 625 F.3d at 1261 (We say only that Plaintiffs contributions and
expenditures are well below the line.); CSG, 2014 U.S. Dist. LEXIS 144389 at *14 (the
standard is whether a small-scale issue committee is sufficiently similar to the
Sampson plaintiffs) (internal cites omitted).
RMGO and CCL have not placed any evidence in the record regarding how
much their groups spent supporting and opposing candidates in the 2014 election cycle
for the Court to compare to the $1,000 threshold. Both the Sampson and CSG holdings
were based on the actual amounts spent by the groups compared to the burdens of
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disclosure but the Court cannot do such an analysis here without RMGO and CCL
spending in the record. See Sampson, 625 F.3d at 1260 (noting the total spending of
$782.02 by plaintiffs); CSG, 2014 U.S. Dist. LEXIS 144389 at *4 (stating Plaintiff
spending ranged from $200 to $3,500 since 2008). Nor can RMGO and CCL claim to be
similarly situated to the neighborhood disputes plaintiffs in Sampson who were
opposing a local town annexation measure, or to the academic publishing a paper
online in CSG. See Sampson, 625 F.3d at 1251; CSG, 2014 U.S. Dist. LEXIS 144389 at
*15. RMGO is Colorados largest state-based Second Amendment grassroots lobbying
organization (Compl. 12) and CCL is likewise a state-wide lobbying and public policy
organization (Compl. 16).
These groups are savvy repeat political players with wide-ranging membership
across the state, not a group of individuals who have together spent less than $1,000
to oppose a local measure. Sampson, 625 F.3d at 1261. At a minimum, they have failed
to carry their burden of establishing facts that might support a finding that they are
similar to the Sampson plaintiffs. Without specific facts similar to Sampson, there is no
reason to find the $1,000 threshold is unconstitutionally low. Cf. Free Speech, 720 F.3d
at 798 (upholding political committee status with $1,000 threshold).
Not only does campaign finance precedent consistently protect the publics
interest in disclosure without offending the Constitution, the requirement of disclosure is
part of the rationale for recent Supreme Court cases overturning restrictions on political
spending. See McCutcheon v. Fed. Election Commn, 134 S. Ct. 1434, 1460, 572 U.S.
___ (2014) (With modern technology, disclosure now offers a particularly effective
11

means of arming the voting public with information.). See also Citizens United, 558
U.S. at 370 (prompt disclosure of expenditures can provide shareholders and citizens
with the information needed to hold corporations and elected officials accountable for
their positions and supporters.); McConnell, 540 U.S.at 196-99 (upholding disclosures
of donation information required for electioneering communications); Buckley, 424 U.S.
at 81 (disclosure helps voters to define more of the candidates constituencies).
Plaintiffs challenges to the Colorado electioneering communications disclosure
provisions have no likelihood of success in the face of this precedent. See Republican
Nat. Comm. v. Fed. Election Commn, 698 F. Supp. 2d 150, 157 (D.D.C. 2010) (threejudge court), affd, 130 S. Ct. 3543 (2010) (a plaintiff cannot successfully bring an asapplied challenge to a statutory provision based on the same factual and legal
arguments the Supreme Court expressly considered when rejecting a facial challenge to
that provision.).
II.

RMGO and CCL Do Not Face Irreparable Harm

Plaintiffs irreparable harm argument begins and ends with the truism that a

violation of constitutional rights is irreparable injury. See, e.g., Kikumura v. Hurley, 242
F.3d 950, 963 (10th Cir. 2001). (Pl. Br. at 13-14). To the contrary, there is no chilling
effect that could harm RMGO or CCLs free speech rights without an injunction: both
groups already electioneered in the Republican primary. The electioneering
communications windows for both the 2014 primary and general elections have closed,

12

both groups have spoken, and neither group needs a preliminary injunction to safeguard
future speech.2
Regardless, the Supreme Court has already determined that any harm from
filing electioneering disclosure reports is not a violation of constitutional rights. See
Citizens United I, 558 U.S. at 369-70. Nothing in the electioneering communications
provisions of the Colorado Constitution or FCPA prevents RMGO and CCL from
continuing to create and send mailers in Colorado at any time of the year. These groups
may spend and speak at will so long as they disclose the amount spent and the source
of funding for any electioneering communications so that voters can fully assess their
messages. As discussed above, these transactional disclosure reports present a
minimal burden and would most likely result in a single report filed online by RMGO and
CCL. Plaintiffs do not place any evidence in the record that there would be harm
suffered by donors or organizations if the modest disclosure requirements were
followed. (Pl. Br. at 2). The Supreme Court has held that a mere allegation that harm
could theoretically exist from political spending disclosure is not enough to strike down
an electioneering communications scheme. Citizens United I, 558 U.S. at 370 (rejecting
argument without evidence of donor threats). Nor is it enough to constitute irreparable
harm supporting a preliminary injunction.
Plaintiffs also exaggerate the harm that would be inflicted by proceeding with the
administrative enforcement case absent an injunction. (Pl. Br. at 7-8). All material facts
in the case have been stipulated and filed with the administrative law judge. There will
2

The next electioneering communications window will not occur until thirty days before the June
2016 primary election.

13

not be any pre-trial discovery or a full adversary proceeding, much akin to a bench
trial. Now that the hearing has been continued to December 17, RMGO and CCL will
not be harmed by preparing for trial during election season. If RMGO and CCL are not
satisfied with the outcome of the December 17 hearing, any order issued by the
administrative law judge is appealable to the Colorado Court of Appeals. See Colo.
Const. art. XXVIII, 9(2)(a). Any inconvenience of proceeding with the December 17
hearing while this case is pending is shared by Ethics Watch, and is an insufficient basis
for a preliminary injunction.
III.

The Balance of Harms and the Public Interest Weigh Against Enjoining
Colorado Disclosure and Enforcement Laws
While RMGO and CCL would suffer little harm in the absence of a preliminary

injunction, Ethics Watch and the public at large would be greatly harmed if the court
were to enjoin enforcement of the electioneering communications provisions. Since the
complaint was filed in early September, Ethics Watch has worked with RMGO and CCL
regarding the re-scheduling of the administrative hearing and signed a joint stipulation
of facts. With all factual questions resolved, Ethics Watch withdrew pending discovery
requests and was prepared to resolve the case at the November hearing. The Court
should consider RMGO and CCLs delay in filing this case until the eve of that
November hearing in its balancing of harms. Continued delay in the administrative case
will merely consume more resources for Ethics Watch (as well as RMGO and CCL).
The public interest also weighs against the broad injunction sought by plaintiffs to
preclude enforcement of the electioneering communications law against RMGO and
CCL or any other entity in Colorado. Public disclosure of spending on electioneering
14

communications is a constitutional value, placed in the Colorado Constitution by

citizens. The public has a strong interest in the enforcement of Colorados disclosure
laws regarding money in politics.
The Supreme Court balanced the interests of political speakers with the public
interest of the electorate, stating: [t]he First Amendment protects political speech; and
disclosure permits citizens and shareholders to react to the speech of corporate entities
in a proper way. Citizens United I, 558 U.S. at 371. There is a public interest not only in
learning what donors (if any) earmarked monies to be spent on candidate-specific
mailings, but also in the required spending disclosures. Citizens have a legitimate
interest in knowing how much a group spent to influence their votes, and in the strong
enforcement of laws imposing penalties on those who conceal information voters are
entitled to know.
CONCLUSION
For the foregoing reasons, the Court should deny the motion for preliminary
injunction.
Respectfully Submitted on November 26, 2014,
____s/ Margaret Perl____________
Margaret Perl
Luis Toro
COLORADO ETHICS WATCH
1630 Welton Street, Suite 415
Denver, CO 80202
Telephone: 303-626-2100
Email: pperl@coloradoforethics.org
ltoro@coloradoforethics.org
Attorneys for Colorado Ethics Watch

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CERTIFICATE OF SERVICE
I certify that on November 26, 2014, a copy of this BRIEF IN OPPOSITION TO
PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION was served through
CM/ECF file-and-serve on the parties listed below:
David A. Warrington
Laurin H. Mills
Andrew J. Narod
Paris R. Sorrell
LeClairRyan, A Professional
Corporation
2318 Mill Road, Suite 1100
Alexandria, Virginia 22314
Telephone: (703) 684-8007
david.warrington@leclairryan.com
laurin.mills@leclairryan.com
andrew.narod@leclairryan.com
paris.sorrell@leclairryan.com

James O. Bardwell
Rocky Mountain Gun Owners
501 Main Street, Suite 200
Windsor, CO 80550
Telephone: (877) 405-4570
jb@nagrhq.org

Attorneys for Rocky Mountain Gun Owners and Colorado Campaign for Life
Kathryn A. Starnella
Assistant Attorney General
Frederick R. Yarger
Assistant Solicitor General
Public Officials Unit |State Services Section
1300 Broadway, 10th Floor
Denver, Colorado 80203
Telephone: (720) 508-6176
kathryn.starnella@state.co.us
fred.yarger@state.co.us
Attorneys for Colorado Secretary of State
___s/ Margaret Perl__________________
Margaret Perl

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