Court of Appeals, State of Colorado 2 East 14 th Ave., Denver, CO 80203 COURT USE ONLY Appeal from District Court, City and County of DenverThe Honorable Robert L. McGahey Jr. Case Numb er: 2014CV031851 Plaintiff/Appellee: COLORADO REPUBLICAN PARTY v. Defendant/Appellee: WAYNE WILLIAMS, in his official capacity as Colorado Secretary of State and Intervenor Defendant/App ellant: COLORADO ETHICS WATCH Att orn eys for App ell ee Colo rad o Rep ubl ica n Pa rty : Case No.: 2014CA0 019 45 Name(s): Christopher O. Mur ray, #39340 Add res s: Bro wns tei n Hya tt Far ber Sch rec k, LLP 410 Seventeenth Street, Suite 2200 Denver, CO 80202-4432 Phone: FAX : E-mail: 303.223.1100 303.223.1111 [email protected]ANSWER BRIEF
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I hereby certify that this brief complies with all requirements of C.A.R. 28
and C.A.R. 32, including all formatting requirements set forth in these rules.
Specifically, the undersigned certifies that:
The brief complies with C.A.R. 28(g).Choose one:It contains 9,498 words (excluding the caption, table of contents,table of authorities, certificate of service, this certificate of
compliance, signature block, and any addendum).It does not exceed 30 pages.
The brief complies with C.A.R. 28(k).For the party raising the issue:It contains under a separate heading (1) a concise statement of theapplicable standard of appellate review with citation to authority; and(2) a citation to the precise location in the record (R. , p. ), not to anentire document, where the issue was raised and ruled on.
For the party responding to the issue:It contains, under a separate heading, a statement of whether AppelleeColorado Republican Party agrees with the statements of AppellantColorado Ethics Watch concerning the applicable standard of reviewand preservation for appeal, and if not, why not.
I acknowledge that my brief may be stricken if it fails to comply with any ofthe requirements of C.A.R. 28 and C.A.R. 32.
STATEMENT OF THE ISSUES .............................................................................3
I. Nature of the Case................................................................................5
II. Course of Proceedings..........................................................................6III. Disposition by the Trial Court .............................................................6
STATEMENT OF FACTS .......................................................................................7
SUMMARY OF THE ARGUMENT.......................................................................9
I. Standard of Review ............................................................................11
II. Colorado Law Permits Political Parties to Establish
Independent Expenditure Committees That Are Not Subject toContribution Limits or Source Restrictions Applicable toPolitical Parties...................................................................................14
A. Colorado Law Unambiguously Provides That PoliticalParties May Establish Independent ExpenditureCommittees ..............................................................................15
B. CORE Cannot Qualify as a “Political Party” or a“Political Committee” and May Not Be Treated As Oneunder Colorado Law ................................................................16
C. CEW’s Argument Requires the Judicial Invention of A New Type of Political Organization Not RecognizedUnder Existing Law.................................................................19
D. CEW’s Proposed Interpretation Is Incompatible With theStructure of Colorado’s Campaign Finance Regime...............20
III. The Establishment of Independent Expenditure Committees byPolitical Parties Is Consistent with Article XXVIII of theColorado Constitution ........................................................................22
IV. The District Court’s Finding that CORE is Independent of CRPIs Amply Supported by the Record....................................................24
A. CORE Does Not Coordinate Its Expenditures with CRPor Candidates ...........................................................................25
B. CORE Does Not and May Not Coordinate with CRP orCandidates In Any Respect......................................................27
C. CEW Relies Solely on Unsupported Speculation ofFuture Coordination.................................................................28
1. The CRP Chairman’s Limited Role Does NotUndermine the Independence of CORE’sExpenditures ..................................................................30
2. Limits on the Scope of CORE’s Mission Are BothAppropriate and Legally Required................................31
3. The Standing Rules’ Cross-Reference to the CRP
Bylaws Is Irrelevant to the Independence ofCORE’s Expenditures ...................................................34
V. CRP’s Right to Establish an Independent ExpenditureCommittee Is Protected by the First Amendment..............................35
A. Limits on Contributions to Independent ExpenditureOrganizations Are Per Se Unconstitutional.............................36
B. CORE’s Limited Relationship with CRP Does NotRender CORE A Political Party ..............................................38
C. Limitations on Contributions to Political Parties for theSole Purpose of Making Independent Expenditures AreLikely Unconstitutional ...........................................................43
Bd. of Directors, Metro Wastewater Reclamation Dist. v. Nat'l Union
Fire Ins. Co. of Pittsburgh, PA,105 P.3d 653 (Colo. 2005)..................................................................................45
Buckley v. Valeo,424 U.S. 1 (1976)..........................................................................................34, 35
Carey v. Fed. Election Comm’n,
791 F. Supp. 2d 121 (D.D.C. 2011)....................................................................44
Citizens United v. Federal Election Commission,558 U.S. 310 (2010)..................................................................................... passim
Citywide Banks v. Armijo,313 P.3d 647 (Colo. App. 2011).........................................................................12
Colo. Republican Fed. Campaign Comm. v. Fed. Election Comm’n,518 U.S. 604 (1996)............................................................................................41
Emily’s List v. Fed. Election Comm’n,581 F.3d 1 (D.C. Cir. 2009)................................................................................44
Federal Election Comm’n v. Colorado Republican Federal Campaign
Comm.,533 U.S. 431 (2001)......................................................................................37, 38
Huddleston v. Grand Cnty. Bd. of Equalization,913 P.2d 15 (Colo. 1996)....................................................................................13
Insul-Lite Window & Door Mfg., Inc. v. Indus. Comm'n,723 P.2d 151 (Colo. App. 1986).........................................................................11
Long Beach Area Chamber of Commerce v. City of Long Beach,603 F.3d 684 (9th Cir. 2010) ..............................................................................36
McConnell v. Federal Election Comm’n,540 U.S. 93 (2003)............................................................................37, 38, 42, 43
McCutcheon v. Fed. Election Comm’n,134 S. Ct. 1434 (2014)..................................................................................35, 43
Montez v. People,
269 P.3d 1228 (Colo. 2012)................................................................................17 N. Carolina Right to Life, Inc. v. Leake,
N.Y. Progress and Protection PAC v. Walsh,17 F. Supp. 3d 319, 322 (S.D.N.Y. 2014) ..........................................................28
New Design Constr. Co. v. Hamon Contractors, Inc.,215 P.3d 1172 (Colo. App. 2008).......................................................................10
P.F.P. Family Holdings, L.P. v. Stan Lee Media, Inc.,252 P.3d 1 (Colo. App. 2010).............................................................................11
People v. Cross,127 P.3d 71 (Colo. 2006)..............................................................................16, 18
Rufer v. Fed. Election Comm’n,--- F. Supp. 3d ---, 2014 WL 4076053 (D.C.C. Aug. 19, 2014) ........................42
S. Fork Water & Sanitation Dist. v. Town of S. Fork ,252 P.3d 465 (Colo. 2011)....................................................................................9
Softrock Geological Services, Inc. v. Indus. Claim Appeals Office,328 P.3d 222 (Colo. App. 2012).........................................................................12
SpeechNow.org v. Fed. Election Comm’n,599 F.3d 686 (D.C. Cir. 2010)............................................................................36
Texans for Free Enter. v. Tex. Ethics Comm’n,732 F.3d 535 (5th Cir. 2013) ..............................................................................36
Wis. Right to Life State Political Action Comm. v. Barland ,664 F.3d 139 (7th Cir. 2011) ..............................................................................36
CRP also raises a fourth issue pertaining to the First Amendment implications of a
finding that the district court’s legal conclusions were erroneous.1
1. Whether the district court erred in ruling that the monetary limits and
source restrictions2
set forth in Colo. Const., art. XXVIII, § 3 do not apply to
contributions received by an independent expenditure committee established by a
political party pursuant to C.R.S. § 1-45-107.5.
2. If the district court did not err by interpreting Colorado’s independent
expenditure committee statute to allow a political party to establish an independent
expenditure committee that is not subject to contribution limits and source
restrictions, whether the statute is unconstitutional as contrary to Colo. Const., art.
XXVIII, § 3.
3. Whether the district court’s factual finding that CORE is independent
of CRP was clearly erroneous and not supported by the record.
4. If the district court erred in holding that an independent expenditure
committee established by a political party may accept contributions not subject to
1 Although CEW addressed the constitutional argument in its opening brief,
see Opening Brief at 19-23, it did not identify it as a separate issue.2 CRP does not challenge the validity or applicability of the federal and state
prohibitions on independent expenditures—and contributions for the purpose ofeffectuating the same—by foreign nationals and foreign governments inconnection with state and local elections. See 11 C.F.R. § 110.20; Colo. Const.,art. XXVIII, § 3(12)(a)-(b).
19 (Colo. 2002) (“[I]f courts can give effect to the ordinary meaning of the words
adopted by a legislative body, the statute should be construed as written since it
may be presumed that the General Assembly meant what it clearly said.” (internal
quotation omitted)). It did so when it established CORE.
B. CORE Cannot Qualify as a “Political Party” or a “Political
Committee” and May Not Be Treated As One under Colorado
Law
Unable to contrive any ambiguity in the statutory text, CEW implicitly
concedes that CORE is indeed an “independent expenditure committee,” within the
meaning of C.R.S. § 1-45-103(11.5), but argues that it must be subject to the
contribution source and amount limitations imposed on political parties pursuant to
Article XXVIII, § 3. But CORE simply is not a political party. Article XXVIII, §
2(13) defines “political party” as an entity that “nominate[s] candidates for the
official general election ballot.” CORE undisputedly does not nominate
candidates; indeed, the Standing Rules explicitly proscribe CORE’s Executive
Director and Management Committee from participating “in the nomination or
designation of any Republican candidate for office.” R. 80 [Rule 7].3
3 Although the denotation of “political party” encompasses regional affiliates“at the state, county, and election district levels,” this ancillary facet of thedefinition—which pertains only to geographical subunits of the CRP—has noapplication to CORE, which is a separate and distinct entity that conducts
the form of statutory amendments; such a remedy is not for the courts to provide.
See People v. Diaz , 2015 CO 28, ¶ 15 (“[I]n interpreting a statute, we must accept
the General Assembly's choice of language and not add or imply words that simply
are not there…we refuse the defendant's invitation to venture into legislative
territory.” (internal quotation omitted)).
III. The Establishment of Independent Expenditure Committees by Political
Parties Is Consistent with Article XXVIII of the Colorado Constitution
In a paragraph that reads more like an assertion than an argument CEW
contends that, if the governing statutes permit political parties to establish
independent expenditure committees not subject to contribution limits (as they do),
they “contradict” the source and amount restrictions imposed by Art. XXVIII, § 3.
Opening Brief at 14. CEW is mistaken. Independent expenditure committees are
never mentioned in Article XXVIII, § 3; they are the creature of a later enacted
statute, C.R.S. § 1-45-107.5, the general validity of which is undisputed. CEW’s
argument that Article XXVIII, § 3 countenances the existence of independent
expenditure committees generally but implicitly imposes contribution limits only
on independent expenditure committees established by political parties simply
finds no warrant in the constitutional text.4
4 To be sure, Article XXVIII mentions “independent expenditures,” but onlyin the context of acknowledging that such independent expenditures are generally
To the extent CEW’s argument relies on what it apprehends to be an
amorphous underlying intent animating Article XXVIII, § 3, it likewise is
unavailing. Indeed, the only provision of Article XXVIII, § 3 that directly
addresses independent expenditures prohibits labor organizations and most
corporations from engaging in them, a proscription the Colorado Supreme Court
agreed violated the federal Constitution in light of Citizens United . See In re
Interrogatories Propounded by Governor Ritter, Jr., Concerning Effect of Citizens
United v. Fed. Election Comm'n, 558 U.S. ---- (2010) on Certain Provisions of
Article XXIII of Constitution of State, 227 P.3d 892, 894 (Colo. 2010) (“To the
extent that section 3(4) of article XXVIII of the Colorado Constitution makes it
unlawful for a corporation or labor organization to make expenditures expressly
advocating the election or defeat of a candidate, it violates the dictates of the First
Amendment of the United States Constitution.”). While the remaining facets of
Article XXVIII, § 3 are valid, the illustrative point is that—to the extent the
(invalidated) provision embodies some overarching conception what sorts of
entities should be engaging in independent expenditures beyond its (again,
unconstitutional) prohibition against labor unions and corporations—it is likely
permissible. See Colo. Const., art. XXVIII, §§ 2(9) and 5. Independentexpenditure committees, as a separate organ for raising, spending and disclosingfunds related to political activity are simply not mentioned.
coordination regime. In short, CEW’s argument can be condensed to speculation
that certain verbiage in the Standing Rules might someday be manipulated to
facilitate coordination; such unsupported ruminations are insufficient to upend the
district court’s well-considered factual finding that CORE operates independently
of CRP and candidates.
A. CORE Does Not Coordinate Its Expenditures with CRP or
Candidates
As a preliminary matter, CEW contends that “it was not necessary for Ethics
Watch to prove that the Party would direct specific expenditures made by its
independent expenditure committee. It is sufficient that the Party controls the
independent expenditure committee in general.” Opening Brief at 18. Simply put,
this is an inaccurate statement of the law. The definitional hallmark of an
independent expenditure committee is its sponsorship of “independent
expenditures.” C.R.S. § 1-45-103(11.5). The legal definition of an “independent
expenditure” is in turn tethered to the presence or absence of coordination in
connection with that particular disbursement. See 8 CCR 1505-6, Rule 1.4.2.5
5 Even if CORE did coordinate its expenditures with CRP, it is not clear thatthere is legal significance to coordinating an expenditure with a political partyunless done on behalf of a candidate for public office. Although Rule 1.4.2defines the term “coordination” by reference to both candidates and parties, theColorado Constitution’s definition of “independent expenditure” provides that an“independent expenditure” loses its independent status only if it is “controlled by
That the locus of any coordination analysis is expenditure-specific imparts
symmetry to the regulatory scheme. The legal significance of a coordinated
expenditure is that its particular value is imputed as a contribution to the specific
candidate or party with whom it is coordinated.
Indeed, the federal campaign finance regulatory scheme is substantially
similar in this respect. The Federal Election Commission (“FEC”) has long
insisted that to state a viable coordination claim, a complainant must identify a
specific communication or expenditure that is alleged to have been coordinated.
See, e.g., MUR 5869 (In re Montana Education Association-Montana Federation of
Teachers) Factual & Legal Analysis at 6 (dismissing complaint, noting that despite
generalized allegations of coordination, “[t]he complaint neither provides nor
identifies any communications made by [labor union] that would meet one or more
of the content standards” for a coordinated communication); MUR 6540 (In re
Rick Santorum), Statement of Reasons of Commissioners McGahn and Hunter at
or coordinated with a candidate or candidate’s agent.” Colo. Const., art. XXVIII, §2(9) (emphasis added). While Section 5 of Article XXVIII provides that
expenditures “on behalf of a candidate for public office that are coordinated withor controlled by the candidate or the candidate’s agent, or political party” lose theirindependent status, independent expenditures not made on behalf of a candidate for
public office but coordinated with a political party appear to remain independentunder the Colorado Constitution. Id., § 5(3)(emphasis added). Because thedistrict court correctly found that CORE and CRP do not coordinate, however, theCourt need not address this interpretive question.
candidates vitiates its independence—any independent expenditure committee
complying with Rule 8.1.2 is no longer “independent” of the candidates and/or
parties it supports, an untenable conclusion.
Indeed, independent expenditure committees routinely cabin their missions
to promoting only candidates of a specific political party. For example, the
registration statement of the Colorado Hispanic Republicans IEC reports that the
organization will only “support Republicans for Colorado statewide office…who
either are Hispanic or take positions that are supportive of the Hispanic
community.”6 Likewise, the Senate Majority Fund limits its activities to
supporting “Republican candidates for State Senate,” while the Fair Share Action
independent expenditure committee has committed to support only “Democratic
candidates for Governor and other offices.” CEW proffers no legal basis
whatsoever for the notion that an independent expenditure committee’s exclusive
support of a specific political party or candidate renders its expenditures inherently
coordinated.
6 Independent expenditure committees’ registration statements are publicrecords published on the Secretary of State’s website, and accordingly may be
judicially noticed. See In re Interrogatory Propounded by Governor Roy Romeron House Bill 91S-1005, 814 P.2d 875, 880 (Colo. 1991) (“[T]his court may take
judicial notice of matters of public record and common knowledge.”).
3. The Standing Rules’ Cross-Reference to the CRP Bylaws Is
Irrelevant to the Independence of CORE’s Expenditures
Finally, Rule 19—which provides that the Standing Rules will yield to the
bylaws of the CRP and/or federal and state law in the event of a conflict—simply
delineates a hierarchy of authority for procedural and organizational issues. R. 82.
Nothing in that provision even indirectly affects CORE’s budgetary and
operational decisions and activities. CEW speculates that the CRP bylaws
someday could be manipulated to serve as a proxy for exerting control over CORE,
but there is no evidence whatsoever in the record that this has ever occurred or is
likely to happen.7
Ultimately, CEW’s arguments are founded not in any factual demonstration
that CRP and CORE have ever coordinated or will coordinate their expenditures.
Rather, CEW relies on a series of imagined hypotheticals positing how the
Standing Rules might be manipulated or abused at some point in the future to
undermine CORE’s autonomy. If the mere theoretical possibility of coordination
were sufficient to defeat an organization’s independent status, then no person or
entity would ever be secure in their First Amendment right to make unlimited
7 CRP’s ability to solicit funds for CORE from third party donors likewisedoes not implicate any facet of the regulatory definition of “coordination,” whichfocuses on the existence and nature of communications between an independentexpenditure committee and a political party or candidate. See 8 CCR 1505-6, Rule1.4.2.
741 F.3d at 1103. While acknowledging that soft money bans to political parties
themselves may remain constitutionally intact, the court found that “overlapping
leadership” with a political party did not the defeat the PAC’s status as an
independent entity or its concomitant right to accept unlimited contributions, given
the absence of any evidence of actual coordination between the party and the PAC.
The court added that “the mere fact that [PACs] are closely related to political
parties does not affect the analysis regarding their ability to make independent
expenditures.” Id. at 1102 & n.12.8
Notably, CORE’s Standing Rules implement an even more robust separation
from the party apparatus than was the case in King . Neither the Executive Director
nor any Management Committee is permitted to hold any office or position within
the CRP organization during his or her tenure (R. 80 [Rule 6]), and CORE
personnel are strictly prohibited from communicating non-public information with
the state party or any affiliate “at the county, district, or local level” concerning
8 The court suggested that the analysis may differ for PACs that are formallyaffiliated with or controlled by a political party, noting “that would raise a separateissue—coordination.” 741 F.3d at 1103. Read in context, this passage in King
makes clear that the operative question is not the structural intricacies of a PAC’sinternal organization or ties to a political party, but rather the existence of actualcoordination. Stated differently, whether a PAC is formally affiliated with a
political party or merely maintains unofficial ties carries no per se legalsignificance; the focal point is coordination. Where, as here, there is no evidenceof coordination between a political party and a related independent expenditurecommittee, the latter is entitled to accept unlimited contributions from any source.
however, that the Supreme Court has expressly held that political parties have the
same First Amendment prerogative to make unlimited independent expenditures.
See Colo. Republican Fed. Campaign Comm. v. Fed. Election Comm’n, 518 U.S.
604, 616 (1996) (“Colorado I ”) (“The independent expression of a political party’s
views is ‘core’ First Amendment activity no less than is the independent
expression of individuals, candidates, or other political committees.”).
In this vein, Citizens United and its progeny signal that even political parties
themselves possess a First Amendment right to accept contributions in unlimited
amounts for the specific purpose of making independent expenditures.9 Thus, even
a hypothetical congruence of identities between CRP and CORE would not affect
either entity’s First Amendment right to accept unlimited contributions for funds
that will be used exclusively for independent expenditures, i.e., expenditures that
are not coordinated with candidates. Indeed, while declining to issue a preliminary
injunction, the D.C. District Court held that a challenge to federal party
contribution limits as applied to funds allotted solely to political parties’
independent expenditures presented a “substantial” constitutional question, and
9 While Citizens United noted that party contribution limits as a general matterremain valid, see 558 U.S. at 361, it did not address the specific question ofrestrictions that attach to funds used only for independent expenditures.