intervenors brief in 10th circuit
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No. 14-1387
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
____________________________________
CITIZENS UNITED,
Plaintiff-Appellant,
v.
SCOTT GESSLER and SUZANNE STAIERT,
Defendant-Appellees,
and
COLORADO DEMOCRATIC PARTY, GAROLD A. FORNANDER,LUCA GUZMN, and DICKEY LEE HULLINGHORST,
Intervenor-Defendants.____________________________________
On Appeal from the United States District Court for
the District of Colorado, No. 1:14-cv-02266-RBJThe Honorable R. Brooke Jackson____________________________________
INTERVENOR-DEFENDANTS BRIEF
____________________________________
Martha M. TierneyEdward T. RameyHeizer Paul LLP
2401 15thStreet, Suite 300Denver, CO 80202Phone: (303) 595-4747Counsel for Intervenor-Defendants
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TABLE OF CONTENTS
Page(s)
DISCLOSURE OF PRIOR OR RELATED APPEALS ............................................ 1
STATEMENT PURSUANT TO TENTH CIRCUIT RULE 31.3 ............................ 2
JURISDICTIONAL STATEMENT .......................................................................... 3
ISSUE PRESENTED FOR REVIEW ....................................................................... 3
I. STATEMENT OF THE CASE ....................................................................... 4
II. SUMMARY OF THE ARGUMENT .............................................................. 7
III. ARGUMENT ................................................................................................... 9
A. Standard of Review ............................................................................... 9
B.
Citizens United Did Not Meet Its Heavy Burden to Obtain aPreliminary Injunction ........................................................................... 9
C. Citizen United Failed to Demonstrate A Substantial Likelihood OfSuccess On The Merits Because Colorados Reporting and Disclosure
Provisions Are Constitutional Facially and As Applied to Citizens
United. ................................................................................................. 12
1.
Disclosure Requirements Are Subject to ExactingScrutiny ..................................................................................... 12
2. Colorados Reporting and Disclosure Provisions AreSubstantially Related to Important GovernmentalInterests ..................................................................................... 16
a. Disclosure Furthers the Important Government Interest in
Providing Information to the Public. .............................. 17
b.
Disclosure Furthers the Important Government Interest inEnabling Enforcement of Campaign Finance Laws. ...... 19
c. Citizens United Is Not Exempt from ColoradosReporting and Disclosure Requirements ........................ 20
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D. Citizens United Demonstrated No First Amendment Burden Arisingfrom the Reporting and Disclosure Provisions and Thus Failed toDemonstrate Irreparable Harm ............................................................ 24
1.
Citizens United Presented No Evidence that the Reporting and
Disclosure Provisions Chill Speech .......................................... 25
2.
Citizens Uniteds Delay in Filing this Action and in Moving for
a Preliminary Injunction Indicates an Absence of IrreparableHarm. ......................................................................................... 26
E.
The Balance of the Equities Favors Disclosure. ................................. 27
F.
Disclosure Serves the Public Interest. ................................................. 28
IV. CONCLUSION.............................................................................................. 29
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TABLE OF AUTHORITIES
Page(s)
Cases
Attorney General of the State of Oklahoma v. Tyson Foods, Inc.,565 F.3d 769 (10thCir. 2009) .......................................................................... 9
Buckley v. American Constitutional Law Foundation, Inc.,525 U.S. 182 (1999).......................................................................................12
Buckley v. Valeo,424 U.S. 1 (1976) ................................................................................... passim
Chandler v. City of Arvada,292 F.3d 1241 (10th Cir. 2002) .....................................................................15
Citizens Against Rent Control v. Berkeley,454 U.S. 290 (1981).......................................................................................14
Citizens for Responsible Govt State Political Action Comm. v. Davidson,236 F.3d 1174 (10thCir. 2000) ......................................................... 17, 19, 20
Citizens United v. FEC,
558 U.S. 310 (2010)............................................................................... passim
Colo. Citizens for Ethics in Govt v. Committee for the American Dream,
187 P.3d 1207 (Colo. Ct. App. 2008) ............................................................23
Davis v. FEC,554 U.S. 724 (2008).......................................................................................12
Doe v. Reed,561 U.S. 186 (2010).......................................................................................12
Dominion Video Satellite, Inc. v. Echostar Satellite Corp.,269 F.3d 1149 (10th Cir. 2001) .....................................................................11
Dominion Video Satellite, Inc. v. Echostar Satellite Corp.,
356 F.3d 1256 (10thCir. 2004) ......................................................................25
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FEC v. Mass. Citizens for Life, Inc.,479 U.S. 238 (1986).......................................................................................14
First Natl Bank of Bostonv. Bellotti,435 U.S. 765 (1978)................................................................................ 13, 14
Gen. Motors Corp. v. Urban Gorilla, LLC,500 F.3d 1222 (10thCir. 2007) ........................................................................ 9
Greater New Orleans Broadcasting Association, Inc. v. United States,527 U.S. 173 (1999).......................................................................................15
GTE Corp. v. Williams,731 F.2d 676 (10thCir. 1984) ........................................................................27
McConnell v. Federal Election Commn,540 U.S. 93, 201 (2003) ............................................................. 13, 16, 17, 19
O Centro Espirta Beneficiente Uniao Do Vegetal v. Ashcroft,389 F.3d 973 (10th Cir. 2004) .......................................................................10
Okla. Corr. Profl Assn v. Doerflinger,521 F. Appx 674 (10
thCir. 2013) .................................................................15
Republican Party v. King,741 F.3d 1089 (10th Cir. 2013) .....................................................................26
RoDa Drilling Co. v. Siegal,552 F.3d 1203 (10thCir. 2009) ..................................................................9, 10
Rosenberger v. Rector & Visitors of Univ. of Va.,
515 U.S. 819 (1995).......................................................................................15
Sampson v Buescher,625 F3d 1247 (10th Cir. 2010) ......................................................................29
Utah Gospel Mission v. Salt Lake City Corp.,316 F. Supp. 2d 1201 (D. Utah 2004) ...........................................................27
Westar Energy, Inc. v. Lake,552 F. 3d 1215 (10th Cir. 2009) ....................................................................10
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Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7 (2008) ...........................................................................................10
Statutes
28 U.S.C. 1292 ........................................................................................................ 3
28 U.S.C. 1331 ........................................................................................................ 3
Colo. Rev. Stat. 1-45-103( 9) .................................................................................. 6
Colo. Rev. Stat. 1-45-103(10) ................................................................................. 6
Colo. Rev. Stat. 1-45-107.5 ..............................................................................5, 12
Colo. Rev. Stat. 1-45-107.5(1) ..............................................................................20
Colo. Rev. Stat. 1-45-107.5(4) ..............................................................................24
Colo. Rev. Stat. 1-45-108 ....................................................................................... 5
Colo. Rev. Stat. 24-4-106 .....................................................................................27
Rules
8 CCR 1505-6-11.1 (2012) ..................................................................................5, 24
Constitutional Provisions
Colo. Const. art. XXVIII, 1 ...................................................................................28
Colo. Const. art. XXVIII, 2(7) ..............................................................................12
Colo. Const. art. XXVIII, 2(7)(b) ................................................................. passim
Colo. Const. art. XXVIII, 2(7)(b)(III) ..................................................................23Colo. Const. art. XXVIII, 2(8) ..............................................................................12
Colo. Const. art. XXVIII, 2(8)(b) ................................................................. passim
Colo. Const. art. XXVIII, 6 ...................................................................................12
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Colo. Const. art. XXVIII, 6(1) ................................................................................ 5
Colo. Const. art. XXVIII, 7 ...................................................................................15
Colo. Const. art. XXVIII, 9(2) ....................................................................... 20, 26
Colo. Const. art. XXVIII, 9(2)(a) ........................................................................... 6
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DISCLOSURE OF PRIOR OR RELATED APPEALS
There are no prior or related appeals in this matter.
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STATEMENT PURSUANT TO TENTH CIRCUIT RULE 31.3
The present brief, timely filed on October 3, 2014, is submitted on behalf of
the Intervenor-Defendants, the Colorado Democratic Party, Garold A. Fornander,
Luca Guzmn, and Dickey Lee Hullinghorst, pursuant to this Courts Order of
September 29, 2014 granting their motion for leave to file a separate merits brief.
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JURISDICTIONAL STATEMENT
The United States District Court for the District of Colorado had subject
matter jurisdiction over this case pursuant to 28 U.S.C. 1331 because the matter
arises under the United States Constitution.
This Court has jurisdiction over this appeal pursuant to 28 U.S.C. 1292 as
an appeal from the District Courts order of September 22, 2014, denying
Plaintiffs Motion for Preliminary Injunction.
ISSUE PRESENTED FOR REVIEW
Whether the District Court abused its discretion when it denied Citizens
Uniteds Motion forPreliminary Injunction seeking to enjoin enforcement of
Colorados reporting and disclosure requirementsfor electioneering
communications and independent expenditures.
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I.
STATEMENT OF THE CASE
Citizen United asserts that it is producing a film calledRocky Mountain
Heist1that will include unambiguous references to elected officials in Colorado
who are candidates for office in the November 4, 2014 election. (App. A17, A56).
Citizens United alleges that the film will include audio and video content of events
where participants expressly advocate the election or defeat of one or more
candidates in the November 4, 2014 election, including audio and visual content of
Governor John Hickenlooper, who is the Democratic Party candidate for the Office
of Governor of Colorado. (App. A56). Citizens United planned to finish the
movie on or about September 24, 2014, and begin marketing and distributing the
movie during the first week of October 2014 through DVD sales, television
broadcasts and digital downloads. (App. A55-56).
Colorados campaign finance laws are found primarily in Article XXVIII of
the Colorado Constitution, a citizens initiative adopted in 2002, and in the Fair
Campaign Practices Act (FCPA), 1-45-101 et seq, C.R.S. Citizens United
challenged the constitutionality of Colorados reporting and disclosure
requirements contained in Sections 2, 5, and 6 of Article XXVIII of the Colorado
Constitution, and Sections 1-45-103, 1-45-107.5, and 1-45-108 of the Colorado
Revised Statutes. (App. A22-24).
1Citizens United has not produced the film or a transcript of the film in theseproceedings to date.
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Colorado reporting requirements are straightforward. The sponsor of
independent expenditures of over $1000 in any calendar year must identify itself to
the Secretary of State, disclose the amount spent on the expenditure and any
contributions of more than $250 it received that were earmarked to underwrite
independent expenditures, and identify itself in the communication. 1-45-107.5
(2014), C.R.S. Similarly, Colorado law requires the sponsor of an electioneering
communication to identify itself to the Secretary of State, disclose the amount
spent on the advertisement and any contributions earmarked to underwrite it, and
identify itself in the advertisement itself. Colo. Const. art. XXVIII, 6(1); 1-45-
108, C.R.S. If a person spending money for electioneering communications is a
corporation or labor organization, disclosure of the names and addresses of persons
contributing $250 or more used to make electioneering communications shall only
be required if the money is specifically earmarked for electioneering
communications. 8 CCR 1505-6-11.1 (2012).
For independent expenditures made during the electioneering
communications window (thirty days before a primary election or sixty days before
a general election), the sponsor may check a box on the independent expenditure
report indicating it is also an electioneering communication and no further
electioneering communication reporting is required.
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Colorado law contains certain exemptions from the definition of
electioneering communications and independent expenditures. Pertinent here are
the following two exemptions:
(I) Any news Articles, editorial endorsements, opinion or commentarywritings, or letters to the editor printed in a newspaper, magazine orother periodical not owned or controlled by a candidate or politicalparty;
(II) Any editorial endorsements or opinions aired by a broadcastfacility not owned or controlled by a candidate or political party;
Colo. Const. art. XXVIII, 2(7)(b), 2(8)(b); 1-45-103(9)-(10), C.R.S.
Also pursuant to Colorado law, any person who believes that a violation of
Colorado campaign finance law has occurred may file a written complaint with the
Secretary of State no later than 180 days after the date of the alleged violation.
Colo. Const. art. XXVIII, 9(2)(a). An administrative law judge shall hold a
hearing within fifteen days and shall render a decision within fifteen days of the
hearing. Id. The decision of the administrative law judge shall be final and subject
to review by the court of appeals, and the Secretary of State and the administrative
law judge are not necessary parties to the review. Id.
Rocky Mountain Heist, and the advertisements that Citizens United intends
to run in support of it, do not fall into one of the enumerated exemptions for
electioneering communications or independent expenditures under Colorado law.
As recently as September 25, 2014, Citizens United stated that it will begin to
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advertise and distribute its forthcoming film in less than ten days even though it
will be subject to the disclosure requirements of Colorado law. Colo. Const. art.
XXVIII, 2(7)(b), 2(8)(b). (Doc. 01019316617 at 2, 19).
II.
SUMMARY OF THE ARGUMENT
The District Court did not abuse its discretion when it denied Citizens
Uniteds Motion for Preliminary Injunction seeking to enjoin Colorados reporting
and disclosure provisions for electioneering communications and independent
expenditures. Citizens United seeks to alter the status quo currently requiring it
to comply with the reporting and disclosure laws and to obtain all of the relief it
could recover at the conclusion of a full trial on the merits. Such injunctions are
disfavored by the Tenth Circuit and must be more closely scrutinized to assure that
the extraordinary relief requested is appropriate.
Rejecting Citizens Uniteds framing of the issue as one of identity-based
discrimination, the District Court examined Colorados disclosure regime under
an exacting scrutiny analysis. Citizens United did not show that it was likely to
succeed on the merits under exacting scrutiny. The press entity status that Citizens
United seeks does not exist in Colorado. Rather, Coloradosdisclosure exemptions
are triggered by the form of the speech, not by the identity of the speaker or the
content of the speech.
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The Supreme Court has repeatedly upheld disclosure requirements as the
least restrictive means of regulating campaign finance. Under exacting scrutiny,
Citizens United failed to meet its burden of showing that there is no substantial
relation between the disclosure regime as a whole and the governmentsimportant
interest in maintaining an informed electorate and enabling enforcement of
campaign finance laws.
Citizens United did not demonstrate that it would suffer irreparable harm
absent a preliminary injunction. The record is devoid of any evidence that Citizens
United will not release its movie or run its advertisements, or that its donors will
not contribute, if it must comply with the disclosure provisions. Rather, Citizens
United admits that it will advertise and distribute its forthcoming film even though
it will be subject to the disclosure requirements of Colorado law. Colorados
disclosure requirements are not unduly burdensome given that only contributors
who earmark their donations for independent expenditures or electioneering
communications must be disclosed.
The balance of the equities and the public interest favor continued disclosure
because, absent disclosure, Colorado voters will be deprived of information they
may need to make informed decisions on election day.
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III.
ARGUMENT
A.
Standard of Review
This Court reviews the denial of a preliminary injunction under an abuse of
discretion standard. Gen. Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222,
1226 (10thCir. 2007). An abuse of discretion occurs when the district court
commits an error of law or makes clearly erroneous factual findings.Id. The
Court has previously characterized an abuse of discretion as an arbitrary,
capricious, whimsical, or manifestly unreasonable judgment. RoDa Drilling Co.
v. Siegal, 552 F.3d 1203, 1208 (10thCir. 2009). In the course of its review for
abuse of discretion, this Court examine[s] the district courts legal determinations
de novo, and its underlying factual findings for clear error.Attorney General of
the State of Oklahoma v. Tyson Foods, Inc., 565 F.3d 769, 776 (10thCir. 2009).
[R]eview of a district courts exercise of discretion is narrow, and [the Court]
consider[s] the merits of the case only as they affect that exercise of discretion.
Id.
B. Citizens United Did Not Meet Its Heavy Burden to Obtain a
Preliminary Injunction
To obtain a preliminary injunction, the moving party must demonstrate: (1)
a likelihood of success on the merits; (2) a likelihood that the movant will suffer
irreparable harm in the absence of preliminary relief; (3) that the balance of
equities tips in the movants favor; and (4) that the injunction is in the public
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interest.RoDa, 552 F.3d at 1208 (citing Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008)). Preliminary injunctions are extraordinary equitable
remedies designed to preserve the relative positions of the parties until a trial on
the merits can be held.Westar Energy, Inc. v. Lake, 552 F. 3d 1215, 1224 (10th
Cir. 2009).
The Tenth Circuit applies a heightened standard to a request for one of three
types of preliminary injunctions: (1) preliminary injunctions that alter the status
quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that
afford the movant all the relief it could recover at the conclusion of a full trial on
the merits. O Centro Espirta Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d
973, 975 (10th Cir. 2004)(per curiam), affd, 546 U.S. 418 (2006). This type of
preliminary injunction must be more closely scrutinized to assure that the
exigencies of the case support the granting of a remedy that is extraordinary even
in the normal course.Id. A movant must make a strong showing both with
regard to the likelihood of success on the merits and with regard to the balance of
harms.Id.at 976. Here, Citizens Uniteds request for a preliminary injunction
implicated both the first and third types of preliminary injunctions that require a
heightened standard and must be closely scrutinized to determine if such an
extraordinary remedy is appropriate.
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First, Citizens United sought a preliminary injunction that altered the status
quo. The status quo is the last uncontested status between the parties which
preceded the controversy until the outcome of the final hearing.Dominion Video
Satellite, Inc. v. Echostar Satellite Corp., 269 F.3d 1149, 1155 (10th Cir. 2001).
The last uncontested status between the parties here requires Citizens United to
comply with Colorado reporting and disclosure requirements attendant to
independent expenditures and electioneering communications. In seeking to enjoin
the reporting and disclosure requirements either facially or as applied to it, Citizens
United sought to alter the status quo.
Also requiring application of a heightened standard, Citizens United sought
a preliminary injunction that would afford it all the relief it could recover at the
conclusion of a full trial on the meritsexemption from compliance with
Colorados reporting and disclosure requirements for independent expenditures
and electioneering communications involving an election approximately a month
away.
The District Court did not abuse its discretion when it denied a preliminary
injunction under the facts and law at issue here.
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C.
Citizen United Failed to Demonstrate A Substantial Likelihood Of
Success On The Merits Because Colorados Reporting and
Disclosure Provisions Are Constitutional Facially and As Applied
to Citizens United.
1.
Disclosure Requirements Are Subject to Exacting Scrutiny
In First Amendment challenges to the constitutionality of disclosure
requirements, the relevant test is exacting scrutiny,which requires a substantial
relationbetween the disclosure requirement and a sufficiently important
governmental interest.Doe v. Reed, 561 U.S. 186, 196 (2010) (quoting Citizens
United v. FEC, 558 U.S. 310, 366 (2010). Citizens United sought strict scrutiny by
framing its challenge to Colorados reporting and disclosure requirements on the
basis of speaker identity. But Colorados reporting and disclosure provisions are
triggered by the form, and in some cases the timing, of the speech, not by the
identity of the speaker or the content of the speech. Colo. Const. art. XXVIII,
2(7)-(8), 6; 1-45-107.5, C.R.S. (2014). As such, the disclosure requirements
withstand exacting scrutiny consistent with a series of Supreme Court precedents
considering First Amendment challenges to disclosure requirements in the electoral
context. See, e.g., Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per curiam) ; Citizens
United, 558 U.S. at 366;Davis v. FEC, 554 U.S. 724, 744 (2008);Buckley v.
American Constitutional Law Foundation, Inc., 525 U.S. 182, 204 (1999).
Starting withBuckley v. Valeo, the Supreme Court expressly distinguished
the strict scrutiny applicable to statutes, such as expenditure limits, that impose
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limitations on core First Amendment rights of political expression, 424 U.S. at
44-45, from the lesser scrutiny applicable to intrusions on the privacy of
association by disclosure requirements. Id. at 64. Similarly, in each campaign
finance case on which Citizens United relied to support its strict scrutiny argument
below, the Supreme Court both struck down certain funding restrictions, and
upheld disclosure requirements, every time.
For example, in Citizens United, the Court struck down a federal prohibition
on independent expenditures by corporations, but upheld a disclosure requirement
imposed on any person spending over a certain monetary limit on electioneering
communications within a year. Spenders were required to identify the person
making the expenditure, the amount of the expenditure, the election to which the
communication was directed, and the names of certain contributors. Citizens
United, 558 U.S. at 366. Disclaimer and disclosure requirements,the Court
acknowledged, may burden the ability to speak, but they impose no ceiling on
campaign-related activities,id. (quoting Buckley v. Valeo, 424 U.S. at 64), and
do not prevent anyone from speaking,id.(quotingMcConnell v. Federal
Election Commn, 540 U.S. 93, 201 (2003).
InFirst Natl Bank of Boston v. Bellotti, 435 U.S. 765 (1978), the Court
struck down restrictions on corporate expenditures relating to ballot initiatives, but
upheld the disclosure requirements governing those expenditures. 435 U.S. at 791-
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92 n.32. The Court observed that [i]dentification of the source of advertising may
be required as a means of disclosure, so that the people will be able to evaluate the
arguments to which they are being subjected.Id.
The Supreme Court has frequently upheld disclosure requirements even
when striking down substantive restrictions on the funds to be disclosed. See, e.g.,
Citizens United, 558 U.S. at 371 (striking down corporate treasury ban on
independent expenditures and electioneering communications but finding no
constitutional impediment to application of disclosure requirements to Citizens
Uniteds advertisements of the movieHillary or to the movie itself);FEC v. Mass.
Citizens for Life, Inc., 479 U.S. 238, 262 (1986) (MCFL) (striking down
independent expenditure restrictions on certain non-profit organizations in part
because reporting obligations provide precisely the information necessary to
monitor MCFLs independent spending activity); Citizens Against Rent Control v.
Berkeley, 454 U.S. 290, 298-99 (1981) (striking down contribution limits
governing ballot initiative groups because there is no risk that the Berkeley voters
will be in doubt as to the identity of those whose money supports or opposes a
given ballot measure since contributors must make their identities known under . . .
the ordinance, which requires publication of lists of contributors in advance of the
voting).
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Outside the campaign finance context, Citizens United points to inapposite
cases in which a court applied strict scrutiny to restrictions on speech content or
speaker identity.2 See Greater New Orleans Broadcasting Association, Inc. v.
United States, 527 U.S. 173 (1999) (casino advertising);Rosenberger v. Rector &
Visitors of Univ. of Va., 515 U.S. 819 (1995) (public university payments for
student religious organizations); Okla. Corr. Profl Assn v. Doerflinger, 521 F.
Appx 674 (10thCir. 2013) (payroll deductions for labor union dues); and Chandler
v. City of Arvada, 292 F.3d 1241 (10th Cir. 2002) (nonresident circulation of ballot
measure petitions).
As the District Court found, in Colorado it is the form of the speech that
triggers exemptions to disclosure for clearly defined electioneering
communications and expenditures that are news articles, editorials, opinions or
letters printed in a newspaper, magazine or other periodical, or editorials or
opinions aired by a broadcast facility. (App. A165), Colo. Const. art. XXVIII,
2(7)(b), 2(8)(b). Likewise, it is the timing of the speech that triggers disclosure
of electioneering communications occurring within thirty days before a primary
election or sixty days before a general election. Colo. Const. art. XXVIII, 7. In
2Contrary to Citizens Uniteds position on the unconstitutionality of regulatingbased on speaker identity, (App. A60), the Supreme Court recognized that anycategorical approach to speaker identity may well be untenable when itacknowledged that prohibiting speakers who are foreign individuals or associationsfrom influencing this countrys political processmight be permissible. SeeCitizens United,558 U.S. at 911.
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Colorado, all speakers who engage in independent expenditures or electioneering
communications must disclose contribution and expenditure information,
regardless of their identity or the content of their message, unless they are printed
or broadcast under limited exemptions. Colo. Const. art. XXVIII, 2(7)(b),
2(8)(b). As a consequence, the District Court correctly concluded that exacting,
rather than strict, scrutiny was the appropriate standard.
2. Colorados Reporting and Disclosure Provisions AreSubstantially Related to Important Governmental Interests
Colorado law requires the sponsor of independent expenditures of over
$1000 in any calendar year to identify itself to the Secretary of State, disclose the
amount spent on the expenditure and any contributions of more than $250 it
received that were earmarked to underwrite independent expenditures, and identify
itself in the communication. Similarly, Colorado law requires the sponsor of an
electioneering communication to identify itself to the Secretary of State, disclose
the amount spent on the advertisement and any contributions earmarked to
underwrite it, and identify itself in the advertisement itself. Important
governmental interests support each of these requirements.
[D]isclosure serves informational functions, as well as the prevention of
corruption and the enforcement of the contribution limitations.Buckley, 424 U.S.
at 83;see also McConnell, 540 U.S. at 196. More specifically, this Court has
identified disclosure-related governmental interests in (a) encouraging maximum
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transparency in political activity by providing financial information to the public,
(b) deterring actual or apparent corruption, and (c) detecting violations and
facilitating enforcement of the law. Citizens for Responsible Govt State Political
Action Comm. v. Davidson, 236 F.3d 1174, 1197 (10thCir. 2000). These interests
readily satisfy exacting scrutiny.
a. Disclosure Furthers the Important Government Interest inProviding Information to the Public.
Buckley held that the governments important interest in providing
information to the public was sufficient to justify mandatory disclosure of
campaign contributions. Buckley, 424 U.S. at 66-67.McConnell then applied
Buckleyto uphold electioneering communication disclosure provisions.
McConnell, 540 U.S. at 196, 200-01;see also id. at 237-43 (upholding broadcast
station record-keeping requirements in part to help both the regulatory agencies
and the public determine the amount of money that individuals or groups,
supporters or opponents, intend to spend to help elect a particular candidate).
Most recently, in Citizens United, the Supreme Court rejected Citizens Uniteds
argument that federal disclosure requirements should not apply to advertisements
supporting itsHillary movie, reasoning that [e]ven if the ads only pertain to a
commercial transaction, the public has an interest in knowing who is speaking
about a candidate shortly before an election. 558 U.S. at 369. By provid[ing]
the electorate with information about the sources of election-related spending,
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disclosure allows the public to make informed choices in the political
marketplace. Id.at 367. The informational interest alonecan be sufficiently
important to justify disclosure requirements. Id. at 369.
Citizens United engaged in no analysis of these holdings, instead arguing
that if the public has a right to know who funded Citizens Uniteds film, it equally
has a right to know whether a political candidate, public-advocacy group, or
political party helped fund an investigative journalists magazine piece or
television story. (App. A63). The District Court properly rejected this argument
pointing out that the record is devoid of any evidence that political groups fund
news stories by paying off journalists. (App. A168).
Citizens United fails to distinguish between restrictions on speech based
upon speaker identity and the longstanding and well established governmental
interest in disclosure. [T]he disclosure requirement [is] a minimally restrictive
method of furthering First Amendment values by opening the basic processes of
our federal election system to public view.Buckley, 424 U.S. at 81-82. The law
has not changed since the Supreme Court held with regard to Citizens Uniteds
similar claims in 2010 that [d]isclaimer and disclosure requirements may burden
the ability to speak, but they do not prevent anyone from speaking.Citizens
United, 558 U.S. at 366. On this basis, the District Court appropriately denied
Citizens Uniteds request for a preliminary injunction.
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b. Disclosure Furthers the Important Government Interest inEnabling Enforcement of Campaign Finance Laws.
Courts also have recognized that disclosure requirements enable detection
and enforcement of substantive campaign finance laws. For example,Buckley
upheld federal disclosure requirements as advancing the governments interest in
gathering the data necessary to detect violations of the contribution limitations.
Buckley, 424 U.S. at 68. McConnellsimilarly held that mandatory disclosure was
constitutional in light of the interest in gathering the data necessary to enforce
more substantive electioneering restrictions.McConnell, 540 U.S. at 196; id.at
237; accord, Citizens for Responsible Govt, 236 F.3d at 1197 (recognizing
recordkeeping, reporting, and disclosure requirements as an essential means of
gathering the data necessary to detect violations).
This enforcement interest applies equally to independent expenditures. The
Supreme Court has recognized Congresss legitimate fear that, if disclosure were
limited to spending by or in coordination with candidates, efforts would be made,
as they had been in the past, to avoid the disclosure requirements by routing
financial support of candidates through avenues not otherwise covered by a
campaign finance regulatory scheme. See Buckley, 424 U.S. at 76. Thus, the
governments interest as it relates to disclosure of independent campaign-related
spending can be as strong as it is in coordinated spending. See Buckley, 424 U.S.
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at 81; Citizens for Responsible Govt, 236 F.3d at 1197 (upholding state disclosure
requirements for independent expenditures).
In Colorado, any person can file a complaint alleging a violation of
campaign finance law, and such complaint will be referred to an administrative law
judge, who shall determine if such a violation has occurred. Colo. Const. art.
XXVIII, 9(2). Without disclosure of independent spending, persons seeking to
enforce compliance with Colorado campaign finance laws would have difficulty
determining when or where electioneering communications and independent
expenditures are broadcast, as well as who is funding them and in what amounts.3
Colorado voters would not know if communications purporting to comply with
Colorado law actually do so. Thus, Colorados disclosure requirements serve the
governments important interest in gathering the data necessary to ensure that
Colorado law is properly enforced.
c. Citizens United Is Not Exempt from ColoradosReporting and Disclosure Requirements
Citizens Uniteds proposed activities in regards to its film,Rocky Mountain
Heist, as it has described them in this case, render it ineligible to invoke any of the
enumerated exemptions for electioneering communications or independent
expenditures in Colorado law. In particular, the film is not a news article, editorial
3For example, without disclosure of independent spending it would be impossibleto determine if a foreign corporation is unlawfully expending moneys on anindependent expenditure in violation of 1-45-107.5(1), C.R.S.
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endorsement, opinion or commentary writing, or letter to the editor printed in a
newspaper, magazine or other periodical not owned or controlled by a candidate or
political party. Nor is the film an editorial endorsement or opinion aired by a
broadcast facility not owned or controlled by a candidate or a political party. See
Colo. Const. art. XXVIII, 2(7)(b), 2(8)(b).
Citizens United focuses on these two exemptions, calling them media
exemptions, and contends that because it is ineligible to claim either, the entire
reporting and disclosure regime must be found constitutionally infirm under the
First Amendment. (App. A49). Citizens United argued that without an exemption,
newspapers would be obligated to disclose the names of subscribers, advertisers
and lenders, (App. A191-92), but it supplied no evidence that newspapers receive
contributions earmarked for independent expenditures or electioneering
communications. (App. A281). Citizens United also complains that it, as an
established filmmaker, should not be treated differently than a new press entity that
began distributing a newsletter. (App. A145). These examples, however, do not
hold up when viewed in light of the substantial relation between Colorados
important governmental interest and the disclosure scheme as a whole.
As the District Court points out, the press entity status that Citizens United
seeks does not exist in Colorado. (App. A179). The Secretary reached this same
conclusion when he denied Citizens Uniteds request for a Declaratory Order
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exempting it from disclosure requirements. (App. A44-A46). The Colorado
disclosure exemptions are not premised on the type of entity, but on the form, or in
some cases the timing, of speech.4 Citizens United admits as much, noting that
Colorados media exemptions turn primarily on the medium of transmission i.e.
whether speakers express their views via a print-publication or speaker-owned
broadcast facility. (App. A146).
Nonetheless, even under federal law, where a press entity exemption is
recognized, the Supreme Court rejected Citizens Uniteds characterization that
Hillary was just a documentary film that examine[ed] certain historical events.
Citizens United, 558 U.S. at 325. Instead, the Supreme Court found that the
movies consistent emphasis is on the relevance of these events to Senator
Clintons candidacy for President. Id. Indeed, the Court found thatHillaryin
essence, is a feature-length negative advertisement that urges viewers to vote
against Senator Clinton for President. Id.
Similarly, a division of the Colorado Court of Appeals rejected an argument
by Committee for the American Dream (CAD) that it was exempt from reporting
and disclosure obligations. Construing the regular business exemption in
4The Colorado Supreme Court has never interpreted the exemptions to theelectioneering communications or independent expenditure provisions contained inthe Colorado Constitution. Thus, it is not clear how the Colorado Supreme Courtwould construe those provisions or whether it would find that a press exemptionexists.
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Colorados definition of electioneering communications,see Colo. Const. art.
XXVIII, 2(7)(b)(III), the court found that the goal of CAD was to influence
elections. Thus, exempting CAD, an entity that regularly made electioneering
communications, from reporting requirements would frustrate Article XXVIIIs
purpose of full disclosure. Colo. Citizens for Ethics in Govt v. Committee for the
American Dream, 187 P.3d 1207, 1216 (Colo. Ct. App. 2008).
Here, Citizens United asserts thatRocky Mountain Heist will include audio
and video content of events where participants expressly advocate the election or
defeat of one or more candidates in the November 4, 2014 elections. (App. A17,
A56). Further, [t]he Film will include visual and audio content of Governor John
Hickenlooper, who is the Democratic Party candidate for the Office of Governor of
Colorado in the November 4, 2014 elections. (App. A17, A56). There is nothing
to suggest, based on these statements and Citizens Uniteds history, thatRocky
Mountain Heist will be anything other than a feature length negative advertisement
that urges viewers to vote against Governor Hickenlooper during the weeks before
the November election, and that does not fall within the articulated exemptions to
Colorado law. This is precisely the type of communication to which Colorados
disclosure requirements apply.
In Colorado, the only contributors subject to disclosure are those who
earmark their donations for the purpose of funding an independent expenditure or
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an electioneering communication. 1-45-107.5(4), C.R.S., 8 CCR 1505-6-11.1.
The record here includes no evidence that any entity that has engaged in speech
triggering an exemption from Colorados reporting and disclosure requirements,
has also accepted earmarked donations for the purpose of funding independent
expenditures or electioneering communications. To the contrary, as the District
Court found, if the Denver Post produced a film expressly advocating for the
reelection of John Hickenlooper, it would be forced to comply with the disclosure
requirements. (App. A171). Thus, Citizens Uniteds argument that Colorado law
discriminates against it for who it is, (identity), and for what it says, (content), is
without merit. Like all speakers whose form of communication does not meet the
exemptions under Colorado law, Citizens United is required to disclose the source
of its earmarked contributions.
D.
Citizens United Demonstrated No First Amendment Burden
Arising from the Reporting and Disclosure Provisions and Thus
Failed to Demonstrate Irreparable Harm
Citizens United has not demonstrated any cognizable loss of First
Amendment rights arising from Coloradosdisclosure provisions. The Tenth
Circuit has emphasized the importance of showing irreparable harm: In examining
the preliminary injunction factors, courts have consistently noted that [b]ecause a
showing of probable irreparable harm is the single most important prerequisite for
the issuance of a preliminary injunction, the moving party must first demonstrate
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that such injury is likely before the other requirements for the issuance of an
injunction will be considered.Dominion Video Satellite, Inc. v. Echostar Satellite
Corp., 356 F.3d 1256, 1260 (10thCir. 2004).
1. Citizens United Presented No Evidence that the Reporting andDisclosure Provisions Chill Speech
Citizens United claims that its First Amendment rights will be irreparably
infringed if it must comply with Coloradosdisclosure requirements for its movie,
Rocky Mountain Heist, because compliance will necessarily result in deprivation or
delay in its ability to engage in political speech. (App. A71). But nowhere does
Citizens United indicate that it will not produce and distribute its film and
supporting advertisements absent an injunction. Rather, Citizens United now says
it will begin advertising and marketingRocky Mountain Heistin Colorado in less
than two weeks so that it is publicly available ahead of the November 4 general
election. (Doc. 01019316617 at 19-20). Moreover, in 2010 the Supreme Court
found that Citizens United has been disclosing its donors for years and has
identified no instance of harassment or retaliation. Citizens United, 558 U.S. at
370.
It is well-settled in the electoral context that disclosure requirements do not
prevent anyone from speaking.Id.at 366. That is certainly the case with
Colorados disclosure requirements. Further, because in Colorado any person can
file a complaint alleging a violation of campaign finance law,seeColo. Const., art.
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XXVIII, 9(2), an injunction enjoining the Secretary of State from enforcing the
laws against Citizens United would be ineffectual. In other words, even if Citizens
United were able to demonstrate that irreparable harm would ensue if it had to
comply with the disclosure requirements of Colorado law, the proposed
preliminary injunction would not prevent any person from filing a complaint
against Citizens United to enforce Colorado campaign finance law.
The Supreme Court applied exacting scrutiny and upheld disclosure
requirements at issue in Citizens United v. FECbecause they provided the
electorate with information about the identity of the speaker and did not impose a
chill on political speech, even for independent expenditures. Republican Party v.
King, 741 F.3d 1089, 1095 n.3 (10th Cir. 2013). The District Court did not abuse
its discretion when it did the same here.
2.
Citizens Uniteds Delay in Filing this Action and in Moving fora Preliminary Injunction Indicates an Absence of IrreparableHarm.
Citizens United first filed a Petition for Declaratory Order on April 18, 2014,
seeking an order from the Secretary of State granting it an exemption from
Colorados reporting and disclosure requirements for its activities related toits
movie,Rocky Mountain Heist. (App. A56). The Secretary of State issued a final
decision on the Petition on June 5, 2014. (App. A47). Rather than immediately
appeal the Secretary of States Declaratory Order to the Colorado District Court
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pursuant to 24-4-106, C.R.S., Citizens United waited over two months to file its
complaint in U.S. District Court. Such delay indicates an absence of the
irreparable harm required to support the issuance of a preliminary injunction. GTE
Corp. v. Williams, 731 F.2d 676, 678 (10thCir. 1984) (Delay . . . undercuts the
sense of urgency that ordinarily accompanies a motion for preliminary relief and
suggests that there is, in fact, no irreparable injury.)
Citizens Uniteds unnecessary delay in seeking relief may be viewed as
inconsistent with a claim that plaintiff is suffering great injury or, in the case of
preliminary injunctive relief, that there is an urgent need for immediate relief and
that a judgment would be rendered ineffective unless some restraint is imposed on
defendant pending an adjudication on the merits.Utah Gospel Mission v. Salt
Lake City Corp., 316 F. Supp. 2d 1201, 1221-22 (D. Utah 2004), affd on other
grounds, 425 F.3d 1249 (10th Cir. 2005).
Citizens United failed to demonstrate irreparable harm, and the District
Court properly denied it a preliminary injunction.
E.
The Balance of the Equities Favors Disclosure.
Citizens United failed to demonstrate that the balance of the equities weighs
in its favor. Indeed, Citizens United did not identify any specific harm that it will
suffer if the injunction is not granted, such as harm to its donors arising from
disclosure, or monetary costs incurred to comply with the disclosure requirements.
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Instead Citizens United simply stated that Colorados disclosure laws are
unconstitutional and thus an injunction is proper. (App. A72). Citizens United
now indicates that it will release the movie and run the ads to support the movie
even if it has to comply with Colorados disclosure provisions. (Doc.
01019316617 at 2, 19-20). It, therefore, is purely speculative that Citizens United
will suffer any First Amendment injury here.
That speculation was not enough to tip the balance in Citizens Uniteds
favor. In contrast, the State of Colorado has an important interest in the
enforcement of its campaign finance laws, which were enacted, in part, to
provid[e] for full and timely disclosure of campaign contributions, independent
expenditures, and funding of electioneering communications, and strong
enforcement of campaign finance requirements.Colo. Const. art. XXVIII, 1.
As a consequence, the people of Colorado will be harmed if Citizens United
becomes exempt from disclosure and reporting obligations.
F.
Disclosure Serves the Public Interest.
There is a strong public interest in disclosure. The public has an interest in
gathering the data necessary to detect violations of campaign finance law, in
publicizing large contributions and expenditures to deter actual corruption and
avoid the appearance of corruption,and in knowing who is speaking about
candidates before an election. See Buckley, 424 U.S. at 67-68. Disclosure also
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allows voters to place each candidate in the political spectrum more precisely than
is often possible solely on the basis of party labels and campaign speeches. See
Sampson v Buescher, 625 F3d 1247, 1256 (10th Cir. 2010). The sources of a
candidates financial support and opposition also alert the voter to the interests to
which a candidate is most likely to be responsive and thus facilitates predictions of
future performance in office. Id. If Citizens United is allowed to evade disclosure,
then Colorado voters will not have critical information about who is airing and
paying to finance its movie and its advertisements.
IV. CONCLUSION
For the foregoing reasons, the Intervenor-Defendants respectfully request
that the Court affirm the District Courts denial of Citizens Uniteds Motion for
Preliminary Injunction.
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Dated this 3rdday of October, 2014.
Respectfully submitted,
By: s/Martha M. TierneyMartha M. TierneyEdward T. RameyHeizer Paul LLP2401 15th Street, Suite 300Denver, Colorado 80202Phone Number: (303) 595-4747FAX Number: (303) 595-4750
E-mail: [email protected]: [email protected] for Intervenor-Defendants
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CERTIFICATE OF COMPLIANCE
As required by Fed. R. App. P. 32(a)(7)(C), I certify that this brief is proportionallyspaced and contains 5,867 words, excluding the parts of the brief exempted by Fed.R. App. P. 32(a)(7)(B)(iii).
Complete one of the following:I relied on my word processor to obtain the count and it is Microsoft OfficeWord 2010.I counted five characters per word, counting all characters including citationsand numerals.
I certify that the information on this form is true and correct to the best of myknowledge and belief formed after a reasonable inquiry.
s/Martha M. Tierney
Dated: October 3, 2014
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CERTIFICATE OF DIGITAL SUBMISSION
No privacy redactions were necessary. Therefore, the document submitted indigital form is an exact copy of the written document filed with the Clerk. Inaddition, the digital submission has been scanned for viruses with the most recentversion of a commercial virus scanning program, TREND MICRO Worry FreeBusiness Security Advanced, Version 6.0 SP3, engine Version 9.700.1001, VirusPattern File 10.239.00, dated October 3, 2014, and according to the program is freeof viruses.
s/Martha M. Tierney
Dated: October 3, 2014
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CERTIFICATE OF SERVICE
I hereby certify that on this 3rd day of October, 2014 a true and correct copyof the foregoing INTERVENOR-DEFENDANTS BRIEFwas electronicallyfiled with the Clerk of the Court using the CM/ECF system which will sendnotification of such filing to the following email addresses:
Theodore B. OlsonAmir C. TayraniLucas C. TownsendGibson, Dunn & Crutcher LLP1050 Connecticut Avenue, N.W.Washington, D.C. [email protected]
[email protected]@gibsondunn.com
Attorneys for Plaintiff-Appellant
Michael BoosCitizens United1006 Pennsylvania Avenue, S.E.Washington, D.C. [email protected]
Attorney for Plaintiff-Appellant
Daniel D. DomenicoLeeAnn MorrillMatthew D. GroveKathryn Starnella
Colorado Attorney GeneralPublic Officials UnitState Services Section1300 Broadway, 6thFloorDenver, CO [email protected]@[email protected]@state.co.us
Attorneys for Defendants-Appellees
s/Martha M. Tierney
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