ethics watch summary judgment brief

8/11/2019 Ethics Watch Summary Judgment Brief

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DISTRICT COURT, CITY AND COUNTY OFDENVER, COLORADOCourt Address: 1437 Bannock Street

Denver, Colorado 80202

Plaintiff: COLORADO REPUBLICAN PARTY

v.

Defendants: SCOTT GESSLER, in his capacity asColorado Secretary of State

and

Intervenor Defendant: COLORADO ETHICSWATCH

Attorneys for Intervenor Defendant ColoradoEthics Watch:Luis Toro, #22093Margaret Perl, #43106Colorado Ethics Watch1630 Welton Street, Suite 415Denver, Colorado 80202Telephone: (303) 626-2100Fax: (303) 626-2101E-mail:[email protected]

[email protected]

COURT USE ONLY

Case Number:2014CV031851

Division/Courtroom: 409

BRIEF OF INTERVENOR DEFENDANT IN RESPONSE TO

PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

Intervenor Defendant Colorado Ethics Watch (Ethics Watch) by their undersigned

attorneys, respectfully submits this brief in response to Plaintiff Colorado Republican Party

(CRP)s Motion for Summary Judgment.

I. INTRODUCTION

Major political parties enjoy a privileged position in Colorado election law because

candidates can access the ballot through the political party structure with great ease compared to

unaffiliated candidates. In order to protect against the corrupting influence of political money, a
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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state may restrict contributions to political parties, upon which a candidates access to the ballot

dependsincluding by limiting the amount any one person may contribute to a political party

and by prohibiting direct corporate or labor union contributions to political parties. A long line of

cases affirms that these political party contribution limits and source restrictions do not violate

the First Amendment.

Though cast in terms of the right to make independent expenditures, the CRPs complaint

in substance asks the Court to permit it to use the device of an independent expenditure

committee (IEC or Super-PAC1) to nullify the political party contributionlimits established

in the Colorado Constitution. Because ColoradosSuper-PAC statute, C.R.S. 1-45-107.5, does

not purport to override contribution limits or the corporate/labor union contribution ban for

political parties, and because CRP is not otherwise entitled to evade the contribution limits and

source prohibitions established in the Colorado Constitution, the Court should summarily enter a

declaratory judgment that contributions to the CRP Super-PAC must count against the

contribution limits applicable to the CRP and must comply with the Colorado Constitutions

source prohibitions applicable to political parties.

II. RESPONSE TO CRPS STATEMENT OF UNDISPUTED FACTS

1.-7. Undisputed.

8. Ethics Watch stipulates to all but the final sentence of Paragraph 8.

1The term Super-PAC was invented by a political reporter to distinguish independentexpenditure-only political action committees,post-Citizens Unitedentities that may raiseunlimited money but may not coordinate with or contribute to candidates, from traditionalpolitical action committees that may contribute directly to candidates but are subject to

contribution limits. Dave Levinthal, How Super PACs Got Their Name,Politico, January 10,2012, posted athttp://www.politico.com/news/stories/0112/71285.html(accessed August 19,2014). In Colorado law, traditional PACs are called political committees,seeColo. Const. art.XXVIII, 2(12) and Super-PACs are called independent expenditure committees,seeC.R.S. 1-45-103(11.5).
http://www.politico.com/news/stories/0112/71285.htmlhttp://www.politico.com/news/stories/0112/71285.htmlhttp://www.politico.com/news/stories/0112/71285.htmlhttp://www.politico.com/news/stories/0112/71285.html


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9.-11. Undisputed.

12. Ethics Watch stipulates that Exhibit B is a true copy of the Standing Rules that

govern the CRPs Super-PAC.

III. ADDITIONAL MATERIAL UNDISPUTED FACTS

1. On or about August 20, 2012, CRP formed and registered a Super-PAC under the

name of the Colorado Republican Party Independent Expenditure Committee (Former Super-

PAC). The Former Super-PAC reported $85,847.65 in contributions and the same amount of

expenditures to the Secretary of State. CRP raised funds for the Former Super-PAC in

compliance with the contribution limits and source provisions under the campaign finance limits

applicable to a state political party committee. CRP filed the Former Super-PACs final

campaign finance report and terminated the Former Super-PAC on or about February 7, 2014.

Complaint at 13; Intervenors Answer at 13.

2. Since the current CRP Super-PAC was registered in May 2014, it has received

several contributions from individuals in excess of the contribution limits for political parties

established in Article XXVIII and at least one contribution from a corporation as reported on

filings with the Secretary of States office, a copy of which is attached as Exhibit 1. CRP Brief

at 10.

IV. THE SUMMARY JUDGMENT STANDARD IN A DECLARATORY ACTION

As a general rule, summary judgment is warranted only when the moving party

demonstrates both the absence of disputed issues of material fact and that it is entitled to

judgment as a matter of law. C.R.C.P. 56(c). In a declaratory judgment action, however, a

summary judgment may be entered against the moving party, or providing relief different than

that asked for by the moving party, so long as there are no disputed issues of material fact. See


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C.R.C.P. 54(d) (Except as to a party against whom a judgment is entered by default, every final

judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if

the party has not demanded such relief in his pleadings); Saxe v. Bd. of Trustees of Metro. State

College of Denver, 179 P.3d 67, 73 (Colo. App. 2007) (declaratory judgment may be either

affirmative or negative in form and effect. The better practice is to enter a declaratory judgment

even if it is adverse to theplaintiff seeking such judgment) (citations omitted). Thus, in the

absence of material factual disputes, the Court may enter summary judgment declaring that

CRPs SuperPAC is subject to political party contribution limits, without the formality of a

cross-motion for summary judgment or an additional reply brief from Ethics Watch. See also

C.R.C.P. 1.

V. ARGUMENT

After a series of U.S. Supreme Court cases removing restrictions on outside actors

participating in political campaigns at the federal and state level, CRP feels constrained by the

constitutional and statutory limits on political party contributions which have withstood similar

court challenges. Instead of seeking a legislative solution to change the constitution and statute in

order to adopt the same rules of the game as other 527s and independent expenditure

committees (CRP Brief at 20), CRP presents this court with a selective reading of federal

campaign finance cases in support of a claimed First Amendment right to unlimited contributions

that would trump decades of settled law. CRP must comply with Colorado lawwhich does not

limit the amount of expendituresmade by the CRP Super-PACbut requires its spending be

made with money raised subject to the political party contribution limits and prohibitions. Such

contribution limits and prohibitions have been repeatedly upheld in the face of constitutional

challenges.


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A. The Undisputed Facts Show That the Super-PAC is Controlled By The CRP.

CRP explicitly seeks a declaratory order that that it may sponsor, maintain, and operate

the Super-PAC in question. (CRP Brief at 21). Regardless of whether the Court agrees with CRP

that the definition of political party in Article XXVIII of the Colorado Constitution might not

reach a truly independent Super-PAC, the undisputed facts show that this committee is a

component of CRP and its activities are legally considered coordinated with CRP. Therefore,

all contribution limitations and source prohibitions applicable to political parties are binding

upon the CRP Super-PAC.

Under Colorado campaign finance law expenditures or spending are coordinated with a

political party if a person makes those expenditures under the control of thatpolitical party.

Rules Concerning Campaign and Political Finance Rule 1.4, 8 C.C.R. 1505-6 (2012).

Expenditures that are coordinated with a political party are considered a contribution to the

political party, subject to all limits and prohibitions on party contributions. See Colo. Const. art.

XXVIII 5(3);see also Republican Party of N.M. v. King, 741 F.3d 1089, 1103 (10th Cir. 2013)

(if a group was indirectly controlled by a political party and considered coordinated then

contributions would be subject to political party limits). The undisputed facts in this case show

that the CRP Super-PAC is under the control of the political party and part of its state-party

apparatus.

According to the undisputed facts, the CRP Super-PAC is organized as a standing

committee and separate segregated fund of CRP under the appointment authority of State

Chairman Ryan Call. Chairman Call appoints the Executive Director and management

committee members, names replacements when a members term expires, and can remove

members certain to subject provisions. Chairman Call and other agents and representatives of


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CRP will be soliciting contributions to the CRP Super-PAC. The CRP Super-PAC must abide by

the CRP Bylaws, including the pre-primary neutrality provisions, and any rules adopted by the

CRP Super-PAC that are in conflict the CRP Bylaws or any rule of the Republican National

Committee are deemed inoperative. The filings for the CRP Super-PAC list the Colorado

Republican Central Committee as its parent corporation.

The CRP explains that the rules of the CRP Super-PAC are designed to avoid

coordination of expenditures with any candidates, thus ensuring that the IECs expenditures are

truly independent. (CRP Brief at 2). While the rules might succeed in keeping the CRP Super-

PAC independent from candidates, they do not render it independent from thepartythe crucial

question when determining if political party contribution limits and prohibitions apply.

Our campaign finance system requires disclosure by independent political actors, outside

of any political party, that raise and spend money to influence Colorado state elections. (CRP

Brief at 18-19). These groups may have a partisan bent, but they are not directed by the political

parties. CRP admits that it has created this Super-PAC so that the facts, argument, and

perspective of the Colorado Republican Party can be expressed. (CRP Brief at 20). Chairman

Call and CRP are free to support and fundraise for any number of independent expenditure

committees that are sympathetic and compatible with the CRP view and Republican candidates.

But that is not enough to satisfy them. The only reason this CRP Super-PAC was created is so

that CRP may control it. That strategy is legal under Colorado campaign finance law, but only so

long as the connected Super-PAC under control of the CRP complies with all contribution limits

and prohibitions in the Colorado Constitution.This is exactly how the CRPs Former Super-

PAC operated.


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B. Colorados Campaign Finance Constitutional Provisions Restrict the

Amount and Source of Contributions that may be received by any Political Party

including CRP.

In 2002, Colorado voters passed Amendment 27, which became Article XXVIII of the

Colorado Constitution. Article XXVIII creates a comprehensive campaign and political finance

system, including disclosure requirements, contribution limits and source restrictions for

candidates, political parties, political committees, issue committees, and small donor committees.

SeeColo. Const. art. XXVIII, 2. Section 3 imposes both contribution limits and source

prohibitions on political parties which differ from the limits placed on other types of political

actors. A political party may receive no more than $3,400 per calendar year from any person,

candidate or political committee, and not more than $17,075 from a small donor committees (as

defined in Colo. Const. art. XXVIII, 2(14).2These contribution limits are higher than the limits

on political committees, small donor committees, and candidates. Political parties (and

candidates) are absolutely prohibited from accepting contributions from corporations and labor

unions. See Colo. Const. art. XXVIII, 3(4)(a).3

Because the CRP Super-PAC is controlled by, and coordinated with, the CRP, that

account is subject to these political party contribution limitations and source prohibitions in

Article XXVIII. It is nonsensical for the CRP to argue that political parties are permitted to

operate funds not governed by Section 3s constitutional limits and prohibitions based on the

2These contribution limits have been increased from the 2002 levels established in 3(3) to keeppace with inflation. See Colo. Const. art. XXVIII, 3(13); Campaign and Political Finance Rule10.14, 8 C.C.R. 1505-6 (2012).3For disclosure purposes, a political party shall be treated as separate entities at the state,county, local and district levels. Colo. Const. art. XXVIII, 7. For all other purposes, political

parties and their statewide, county and election district affiliated organizations are considered tobe a single entity.Id. 2(13).


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lack of reference to independent expenditure committees anywhere in Article XXVIII. (CRP

Brief at 12-13, 16). There was no deliberate exclusion of Super-PACs from the contribution

limitations and corporate/labor contribution prohibition in Section 3 when Article XXVIII was

enacted, because such committees didnt exist until after the U.S. Supreme Court struck down

the corporate expenditure limitation in Citizens United v. Federal Election Comn, 558 U.S. 310

(2010). Instead, Colorado citizens intended the independent expenditure activities of a political

party to be governed by the express constitutional limitations and prohibitions on political party

contributions as sanctioned by First Amendment jurisprudence in 2002 when Article XXVIII

was adopted.

When interpreting constitutional amendments, the court must look to the existing law at

the time the citizen initiative was adopted to determine the scope and intent of its provisions.

Colorado Ethics Watch v. Senate Majority Fund,2012 CO 12, 20. Therefore, these provisions

must be interpreted in light of the then-existing law on independent expenditures by political

parties. Two U.S. Supreme Court cases defined the contours of existing law when voters adopted

Article XXVIII in 2002: Colorado Republican Fed. Campaign Comm. v. Federal Election

Commn,518 U.S. 604, 617-18 (1996) (Colorado Republicans I), which is relied upon by CRP

in this case, andFederal Election Commnv. Colorado Republicans Fed. Campaign Comm,533

U.S. 431, 440 (2001)(Colorado Republicans II), a case not cited by CRP to this court but

equally as important to this matter.

In Colorado Republicans I, the party successfully challenged a federal campaign finance

provision which imposed a limit on the amount that a political party could spend related to a U.S.

Senate candidate election (at the time of the case the cap in Colorado was $103,000). See

Colorado Republicans I, 518 U.S. at 611. The U.S. Supreme Court held that the First


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Amendment prohibited any caps placed on expenditures made by a political party that were

independent from candidate campaigns.Id.at 616. When the case returned to the high court five

years later, it rejected the First Amendment challenge to limits on political party contributions to

candidates in the form of coordinated expenditures. Colorado Republicans II, 533 U.S. at 446-

447. Most of this second opinion describes how political parties are inherently different than

other outside political actors and that this difference justifies the challenged contribution limits.

See id at 481-82 (Indeed, partiescapacity to concentrate power to elect is the very capacity that

apparently opens them to exploitation as channels for circumventing contribution and

coordinated spending limits binding on other political players.). Both Colorado Republicans I

andIIacknowledged and did not question that all monies taken in by political parties were

subject to federal law contribution limits of $20,000 per donor (with no corporate or union

contributions allowed) even if that money was used for independent expenditures. See Colorado

Republicans I, 518 U.S. at 617; Colorado Republicans II, 533 U.S. at 458.

This was the law when the amendment was adopted, and the court must interpret the

voters intent as consistent with this precedent regarding political parties making independent

expenditures as opposed to CRPs attempt to read permission for its desired activities where

none is given. The only reasonable interpretation of the provisions in Article XXVIII is that the

citizens intended to institute the constitutionally-approved system for political parties making

independent expenditures under Colorado Republicans I andII: a separate bank account within

the party subject to contribution limits and source prohibitions where independent expenditures

are disclosed but are not subject to any caps or spending limits. That was the law in 2002, and

neither the subsequent creation of Super-PACs in statute nor recent case law regarding

expenditures by outside groups has changed that.


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from all contribution limits in Article XXVIII. As seen above, the political party contribution

limit is contained in 3(3)a provision not mentioned in the statutory exclusion. The General

Assembly deliberately chose not to exclude that contribution limitation (which has never been

declared unconstitutional), and therefore, Super-PACs created by parties under the statute are

still subject to the 3(3) contribution limits.

The statute also does not exempt political party-controlled Super-PACs from the Article

XXVIII 3(4) prohibition on receipt of corporate or labor union contributions. C.R.S. 1-45-

103.7(1) states that nothing prohibits corporations and labor organizations from contributing to

political committees. As CRP correctly notes, political parties are excluded from the definition of

political committee in Article XXVIII, 2(12)(b). (CRP brief at 16). This statute is not a

removal of the constitutional prohibition on corporate and labor union contributions to political

parties. See also In Re Interrogatories, 227 P.3d at 892 (striking down Article XXVIII bans on

corporate and labor spending on expenditures and electioneering communications but not

prohibition on direct contributions to candidates and political parties). Reading these statutory

provisions together (against the background of constitutional provisions and Supreme Court

precedent), even though a political party may be a person pursuant to C.R.S. 1-45-107.5(3)

that can set up a Super-PAC, its Super-PAC is still subject to constitutional contribution

limitations and prohibitions for political parties.

In summary, Colorados constitutional and statutory provisions allow a political party to

set up a separate bank account that is a Super-PAC to makes expenditures without coordinating

with Colorado candidates, but all contributions to that Super-PAC (whether direct or funneled

through CRP) must comply with the contribution limitations and source prohibitions applicable


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to political parties.4This is true at the federal level as well where independent expenditures

must be paid for with federally permissible funds by federal political parties and Citizens

Unitedhas not changed that requirement. SeeFEC Campaign Guide for Political Party

Committee at 62 (August 2013), attached as Exhibit 2.

D. No First Amendment Rights of CRP are Violated by Colorados Constitutional and

Statutory Regulation of Contributions to Political Parties.

Because CRPs plans for its Super-PAC run afoul of Colorados Constitution and

statutes, the only way that CRP can sponsor a Super-PAC in the unrestricted manner that it seeks

is to convince the court that CRP has an overriding First Amendment Right to do so. It does not.

Since the post-Watergate campaign finance regulations for federal elections were adopted

by Congress, campaign finance case law has drawn a distinction between expenditures and

contributions. As a general rule, the First Amendment does not permit caps on expenditures

(political spending) and such limits are subject to the highest standard of review: strict scrutiny.

SeeColorado Republicans I, 518 U.S. at 610;Buckley v. Valeo, 424 U.S. 1, 44-45 (1976).

Contributions, on the other hand, may be regulated both as to amount (through caps on

contributions) and as to source (e.g., prohibitions on contributions from corporations, labor

unions and foreign citizens). See Buckley, 424 U.S. at 20-21;Dallman v. Ritter, 225 P.2d 610,

621-22 (Colo. 2010). Because contribution limits are not a direct restraint on individual speech

but merely limit the ability to give money to approve of a candidate, party or political

organizations message, such limits are subject tothe lower standard of exacting scrutiny in First

4Nor is this a unique structure not applied elsewhere in Colorado campaign finance law. Forexample, federal political committees who seek to support or oppose state candidates may onlydo so using funds that comply with Colorado contribution limits. SeeRules ConcerningCampaign and Political Finance Rule 7.1.1(c), 8 C.C.R. 1505-6 (2012).


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Amendment law. See Citizens United, 558 U.S. 310, 356-57 (2010); Colorado Republicans I,

518 U.S. at 614-15;Buckley, 424 U.S. at 21.

1. CRPs Right to Make Independent Expenditures in Unlimited Amounts without

Coordination with Candidates is Not Affected by this Case.

Nothing in Article XXVIII or the Super-PAC statute sets limits on the amount of

independent expenditures made through CRPs sponsored fund so long as it follows the

guidelines in Colorado Republicans I andII to avoid coordination with the state candidates

affected by that spending. To the extent that recent case law has re-affirmed CRPs right to make

unlimited independent expenditures, that does not answer the question presented by CRP.

CRP attempts to use case law interpreting restrictions on expendituresto support its

argument that it must be relieved from restrictions contributionsto its Super-PAC. Citizens

United and Colorado Republicans Ianalyzed restrictions on expenditures and did not affect

longstanding U.S. Supreme Court rulings upholding contribution limitations to political parties

(referred to as soft money in federal law). See Citizens United, 558 U.S. at 361 (This case,

however, is about independent expenditures, not soft money);Dallman, 225 P.2d at 622 (The

Supreme Court decision in Citizens Unitedaddressed only expenditure limits and disclosure

requirements; thus, it does not control our analysis of Amendment 54s contribution limits.).

The mere fact that raising contributions in higher amounts and from more sources could allow

the CRP Super-PAC to spend more on its independent expenditures does not mean that these

contribution regulations are treated as expenditure limits for constitutional analysis. The question

of whether or not CRP has a constitutional right to disregard the contribution limits and

prohibitions to political parties in Article XXVIII must be analyzed using precedent examining

contribution limits instead of the expenditure limit cases cited by CRP.


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2. The U.S. Supreme Court has Consistently Upheld Contribution Limitations and

Prohibitions as Applied to Political Parties as Constitutional.

As stated in Colorado Republicans I, reasonable contribution limits directly and

materially advance the Government's interest in preventing exchanges of large financial

contributions for political favors. 518 U.S. at 615 (citingBuckley, 424 U.S. at 26-27).

Contribution limits permit[] the symbolic expression of support evidenced by a contribution

but do[] not in any way infringe the contributors freedom to discuss candidates and issues.

McCutcheon v. Federal Election Comn, 134 S. Ct. 1434, 1444 (2014) (quotingBuckley, 424

U.S. at 21, notations in original). Under the lower level of scrutiny applied by the Supreme

Court, contribution limits are valid so long as they are closely drawn to match a sufficiently

important government interest.McConnell v. Federal Election Comn, 540 U.S. 93, 136 (2003).

This lower scrutiny gives deference to the legislatures ability to weigh competing interests and

provides legislation sufficient room to anticipate and respond to concerns about circumvention

of regulations designed to protect the integrity of the political process.Id.at 137.

CRP admits that Article XXVIIIs contribution limits and prohibitions continue to apply

to political parties when it states that such constitutional provisions have not yet been

successfully challenged in court. (CRP Brief at 16). In Colorado Republicans II, there was no

question or challenge to the fact that the political party must continue to comply with the

$20,000 per year limit on contributions from individuals even if that money was used for

independent expenditures. See id. at 458-61. Subsequently, the U.S. Supreme Court upheld

additional contribution limitations on political parties which banned receipt of soft money

contributions outside the statutory limitations as constitutional means to address the

governments interest inpreventing corruption and appearance of corruption:


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Given this close connection and alignment of interests, large soft-money contributions to national parties are likely to create actualor apparent indebtedness on the part of federal officeholders,regardless of how those funds are ultimately used.

McConnell,540 U.S. at 155. This Supreme Court analysis of political party contribution

limitations is still governing law today. SeeRepublican Natl Comm. v. Federal Election Comn

(In re Anh Cao), 619 F.3d 410, 422 (5thCir. 2010) (rejecting constitutional challenge to

contribution limits on political parties because we do not read Citizens United as changing how

this court should evaluate contribution limits on political parties and PACs) (Cao). The most

recent U.S. Supreme Court case on contribution limitations (striking down aggregate donor

limits not at issue in this case) also reaffirms that contribution limits as applied to political parties

are constitutional and still binding. See McCutcheon, 134 S. Ct. at 1451 n.6 (Our holding about

the constitutionality of the aggregate limits clearly does not overruleMcConnells holding about

soft money.).

Most relevant is the post-Citizens United case ofRepublican Natl Comm.et al. v. Federal

Election Comn, 698 F. Supp. 2d (D.D.C 2010) (RNC). This case involved a First Amendment

challenge brought by national and state party committees challenging the contribution limits for

political parties very similar to CRPs complaint. The political party sought to raise contributions

not subject to statutory contribution limits for use in certain activities not connected to federal

candidate races and argued that the First Amendment prohibited limiting contributions in those

circumstances.Id.at 155-56. The special three-judge panel (including one D.C. Circuit Judge)

held unanimously that Citizens Uniteddid not disturbMcConnells holding with respect to the

constitutionality of [statutory] limits on contributions to political parties.Id.at 153. As an initial

matter, the court rejected the argument that contribution limits functioned as a de facto

expenditure limitation and should be subject to higher level of scrutiny.Id.at 156. Then the court


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found thatMcConnells holding that there is no First Amendment violation in applying

contribution limitations and prohibitions to all funds raised and spent by political parties

regardless of how that money is spent is still valid and binding after Citizens United.Id. at 157-

58. Upon appeal, the U.S. Supreme Court summarily affirmed this holding inRepublican Natl

Comm.et al. v. Federal Election Comn, 130 S.Ct. 3543 (2010).5Thus, governing Supreme Court

precedent states that contribution limits and prohibitions can constitutionally be applied to

political parties like CRP regardless of whether they intend to use the money for independent

expenditures. SeeMcCutcheon, 134 S.Ct. at 1451 (Those base limits remain the primary means

of regulating campaign contributions.).

Nor has this line of cases upholding contribution limitations on parties been overruled by

post-Citizens Unitedcases allowing Super-PACs without contribution limits or prohibitions for

other political actors. These cases reaffirm a right for outside groups to operate without

contribution limits for independent expenditures because of their different position in campaigns

than political parties or candidates. See Carey v. Federal Election Comn, 791 F. Supp. 2d 121,

131 (D.D.C. 2011) (non-connected non-profits are not the same as political parties and do not

cause the same concerns); SpeechNow.org, et al. v. Federal Election Comn, 599 F.3d 686, 695

(D.C. Cir. 2010) (distinguishing between independent expenditures made by political parties at

issue in Colorado Republicans Iand such expenditures by non-connected groups). Unlike non-

connected Super-PACs established under C.R.S. 1-45-107.5, CRP and all political parties are

inherently linked with candidates and officeholders. This difference has been recognized by the

courts to allow for different First Amendment treatment: more onerous contribution restrictions

5A U.S. Supreme Court summary affirmance is not merely a denial of certiorari, but action withprecedential value with respect to the precise issues presented and necessarily decided by thoseactions.Anderson v. Celebrezze, 460 U.S. 780, 784 n.5 (1983).


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may be placed on political parties than independent groups.Republican Party of N.M. v. King,

741 F.3d 1089, 1100 (10th Cir. 2013). See also Long Beach Area Chamber of Commerce v. City

of Long Beach, 603 F.3d 684, 696, 698 (9th Cir. 2010) (distinguishing permissible contribution

limits on political parties from impermissible limits on non-connected committees);Cao, 619

F.3d at 422 (noting the precise role that political parties fill that gives rise to the Government's

compelling interest in regulating their coordinated expenditures and contributions);N.C. Right

to Life, Inc. v. Leake, 525 F.3d 274, 292-93 (4th Cir. 2008) (McConnellspecifically emphasized

the difference between political parties and independent expenditure political committees, which

explains why contribution limits are acceptable when applied to the former, but unacceptable

when applied to the latter).

Just this month, the U.S. District Court for the District of Columbia denied a preliminary

injunction in a similar challenge by the national Republican and Libertarian parties seeking to

declare federal contribution limits to political parties unconstitutional as applied to independent

expenditures. SeeRufer et al.v. Federal Election Comn, No.14-cv-837, 2014 U.S. Dist. LEXIS

114762 (D.D.C. August 19, 2014). TheRufer opinion held that the parties are not likely to

succeed on the merits because their constitutional claims are in tension with forty years of

Supreme Court jurisprudence upholding contribution limits to political parties.Id.at *22. The

fact that national political parties pursuing this parallel federal court case must overturn decades

of Supreme Court precedent to get the same result sought by CRP belies CRPs argument that

current First Amendment jurisprudence guarantees a political partys right to use unrestricted

funds for independent expenditures.

[P]olitical parties have influence and power in the Legislature that vastly exceeds that of

any interest group.McConnell, 540 U.S. at 188. Colorado citizens have spoken and decided that


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the potential for corruption warrants limitations on contributions to political parties. SeeColo.

Const. art. XXVIII 3(3) and 3(4). In Colorado, as in federal law and other states, political

parties are simply differently situated and appropriately treated differently than corporations,

labor organizations, or other associations. See McConnell, 540 U.S. at 144 (The idea that large

contributions to a national party can corrupt or, at the very least, create the appearance of

corruption of federal candidates and officeholder is neither novel nor implausible.); Colorado

Republicans I, 518 U.S. at 617 (noting the potential for corruption linked to the ability of

donors to give sums up to $20,000 to a party which may be used for independent party

expenditures for the benefit of a particular candidate);Republican Party of N.M, 741 F.3d.at

1100 (groups that do not share a party relationship are treated differently);EMILYs List v.

Federal Election Comn, 581 F.3d 1, 14 (D.C. Cir. 2009) (non-profit groups do not have the

same inherent relationship with federal candidates and officeholders thatpolitical parties do).

Parties thus perform functions more complex than simply electing candidates; whether they like

it or not, they act as agents for spending on behalf of those who seek to produce obligated

officeholders.ColoradoRepublicansII, 533 U.S. at 453. When CRP Chairman Call actively

fundraises for the CRP Super-PAC (which will only support Republican party candidates in the

general election without choosing sides in the primary election), clearly candidates will know

these donations will help their campaign. This potential corrupting influence justifies the

contribution limits and corporate and labor union prohibitions. Otherwise, the CRP Super-PAC

could become a way to evade the limits and corporate and labor union prohibitions on

contribution to Colorado candidates. See McConnell, 540 U.S. at 145-46 (recognizing evidence

in record of soft money donations to political parties used to create debt on the part of


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officeholders in circumvention of contribution limits to candidates);Republican Party of N.M.,

741 F.3d at 1099.

CRP makes a lengthy policy argument that political parties should be able to have the

same playing field in the marketplace of ideas instead of being drowned out by outside

spendersincluding those groups not subject to disclosure. (CRP Brief at 20).U.S. Supreme

Court precedent makes clear that a desire to level electoral opportunities between the wealthy

and those with less money to spend on elections is not a valid governmental interest under the

First Amendment.Davis v. FEC, 554 U.S. 724, 742 (2008).CRPsargument should be made to

the people of Colorado and the legislature in support of amendments to Article XXVIII to raise

or remove the contribution limits and prohibitions on political parties. Colorados voters, like

Congress, are fully entitled to consider the real-world differences between political parties and

interest groups when crafting a system of campaign finance.McConnell,540 U.S. at 188.

Moreover, similar policy arguments have been rejected by the courts, both before and

after Citizens United. See RNC, 698 F. Supp. 2dat 160 n.5 (we recognize the RNCs concern

about this disparity, which, it argues, discriminates against the national political parties in

political and legislative debates. But that is an argument for the Supreme Court or Congress);

Cao,619 F.3d at 422 (the Supreme Court's analysis fully supports the Government's differential

treatment of political partiesbecause of what Colorado IIrecognized as a political party's

unique susceptibility to corruption);McConnell, 540 U.S. at 187-89 (rejecting political parties

equal protection challenge because laws discriminate against parties in favor of outside special

interest groups). CRPs policy preferencesprovide no basis for this court to overturn state

constitutional provisions.


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VI. CONCLUSION

No one challenges the CRP Super-PACs right to spend unlimited amounts in

independent expenditures to support Republican candidates in state elections. Because CRP

cannot challenge the right of outside groups to similarly spend unlimitedly to support other

candidates, it seeks to remove what it sees as an unfair impediment: Article XXVIIIs

contribution limits and prohibitions on political parties. But these contributions limits are

constitutional and must be applied to any Super-PAC sponsored and controlled by a political

party. Continuing to apply duly-enacted Colorado Constitutional provisions to the CRP Super-

PAC does not offend the First Amendment because the overall effect of the Acts contribution

ceilings is merely to require candidates and political committees to raise funds from a greater

number of persons.Buckley, 424 U.S. at 21-22. The court is bound to enter a declaratory order

that the CRP Super-PAC must comply with the contribution limits and prohibitions in Article

XXVIII.

Respectfully submitted this 22nd day of August 2014,

_____[Original Signature On File]______Luis Toro, #22093Margaret Perl, #43106

Attorneys for Intervenor-Defendant Colorado Ethics Watch


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CERTIFICATE OF SERVICE

I certify that on August 22, 2014, I served a true copy of the above and foregoing throughICCES on the following:

Richard A. Westfall, Esq.Allan L. Hale, Esq.Peter J. Krumholz, Esq.Hale Westfall, LLP1600 Stout St., Suite 500Denver, CO 80202

Matthew Grove, Esq.Sueanna Johnson, Esq.Colorado State Attorney GeneralState Services Section1300 Broadway, 6th FloorDenver, CO 80203

_____[Original Signature On File]______Margaret Perl

ethics watch summary judgment brief

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