Independence Institute v. Williams

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 tax-

exempt 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 state’s failure to audit its new health care insurance exchange. The

ad culminates with an exhortation to viewers to call the incumbent governor—a

candidate in the election—and 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

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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 court’s grant of summary judgment to the Secretary.

Colorado’s 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.

1
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...)

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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...)

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 Last year, less than sixty days before Colorado’s gubernatorial election, the

Institute intended to run a television advertisement urging voters to support an

audit of Colorado’s Health Benefit Exchange. The ad mentioned Colorado’s

incumbent governor by name, instructing viewers to “[c]all Governor

Hickenlooper and tell him to support legislation to audit the state’s 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).

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 Audio Visual
Doctors recommend a regular check Video of doctor and mother with
up to ensure good health. child.

Yet thousands of Coloradoans lost
their health insurance due to the new Headlines of lost insurance stories.
federal law.

Many had to use the state’s
government-run health exchange to Denver Post headline “Colorado
find new insurance. health exchange staff propose $13M
fee on all with insurance”
Now there’s talk of a new $13 million
fee on your insurance.

It’s time for a check up for Colorado’s
health care exchange.

Call Governor Hickenlooper and tell Call Gov. Hickenlooper at (303) 866-
him to support legislation to audit 2471.
the state’s health care exchange. Tell him to support an audit of the
health care exchange.

INDEPENDENCE INSTITUTE IS
RESPONSIBLE FOR THE
CONTENT OF THIS Paid for by The Independence
ADVERTISING. 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 Colorado’s

disclosure requirements. The parties agreed to convert the motion for preliminary

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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 Colorado’s disclosure requirements to

this particular ad would be unconstitutional because, in its view, the ad had

nothing to do with the governor’s 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 Court’s 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

3
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).

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associational freedoms,” id. at 22, which “derive[] from the rights of [an]

organization’s 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 contributor’s 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 scrutiny—a 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 64–66. This is because “financial transactions can reveal much about a

person’s 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 66–68.

In applying these principles to the Institute’s 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.

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 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 campaign-

related” 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 Institute’s

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

regimes—regimes whose precise requirements are cabined within the bounds of

exacting scrutiny. The question we face is whether the Institute’s 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.

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 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 74–75 (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, 248–49 (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

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for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’

‘defeat,’ ‘reject.’” Id. at 44 n.52. 4

Buckley’s limitation of FECA’s 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 Institute’s

view, Buckley thus drew a constitutional boundary between truly campaign-

related speech and “genuine issue advocacy”—speech that does not reference a

particular campaign or share an opinion about a candidate—with 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 Buckley’s line-

drawing was “the product of statutory interpretation rather than a constitutional

4
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 324–25 (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 candidate’s character,
qualifications, or fitness for office.” FEC v. Wis. Right to Life, Inc. (WRTL II),
551 U.S. 449, 470 (2007).

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command” and therefore that express advocacy might not be the outer limit of

what permissible regulation can reach. 540 U.S. 93, 191–92 (2003), overruled on

other grounds by Citizens United, 558 U.S. at 365–66. 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 Court’s 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 requirements—specifically,

federal requirements that are substantially similar to Colorado’s 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 non-

Presidential 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

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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 Party’s 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 advocacy—there was “no

reasonable interpretation of Hillary other than as an appeal to vote against

6
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).

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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 United’s 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 United’s argument, first noting Buckley’s

holding that “[d]isclaimer and disclosure requirements may burden the ability to

7
One of the ads simply stated, “If you thought you knew everything about
Hillary Clinton . . . wait ’til you see the movie.” Text of Citizens United’s
Advertisements (Ex. 1 to Amended Verified Complaint), Citizens United v. FEC,
558 U.S. 310 (2009) (No. 08–205).
8
In the Institute’s 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 324–26. The Court’s 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 United’s position as
“(1) § 441b is unconstitutional as applied [only] to Hillary; and (2) BCRA’s
disclaimer and disclosure requirements . . . are unconstitutional as applied to
Hillary and to the three ads for the movie” (emphasis added)).

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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 369–70. Moreover, the Court considered BCRA’s 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 62–63, 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”).

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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.”); Nat’l Org. for Marriage v. McKee,

649 F.3d 34, 54–55 (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 disclosure-

oriented laws.”); Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990, 1016

(9th Cir. 2010) (“Given the Court’s 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 public’s interest “in knowing who is speaking about a candidate shortly

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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 government’s interests in disclosure. While

this is obviously an expansion of Buckley’s disclosure regime, the Court in

Citizens United was nearly unanimous in applying BCRA’s disclosure

requirements both to Citizens United’s 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 communication’s 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 candidate’s campaign. The

advertisement here does not say much about Governor Hickenlooper, but it does

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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

government’s 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 well-

tailored 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 161–62.

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 B. Colorado’s Disclosure Regime Survives Exacting Scrutiny As Applied
to the Institute’s Advertisement

Colorado’s 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 Institute’s ad would have

been a television broadcast, much like the ads in Citizens United. And it is

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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

Colorado’s 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 Colorado’s

spending requirements are sufficiently tailored to the public’s 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 state’s 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.

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

mentioning a candidate prior to an election justify applying Colorado’s 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 public’s informational interests and are less

restrictive than other alternatives. See Citizens United, 558 U.S. at 369. And the

Buckley language construing FECA’s 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 Colorado’s 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 public’s

“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 Institute’s 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 Court’s reasoning in Citizens United did not fixate on the peculiarities of

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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 proper—or undeniably improper—way 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 Institute’s 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 Court’s 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
Court’s 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)).

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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 Colorado’s disclosure laws as applied to the Institute’s ad.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s grant of

summary judgment to the Secretary.

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