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July 6, 2016
  Independence Institute v. Williams - Tenth Circuit
Case Name: Independence Institute v. Williams

Headline: Tenth Circuit Expands Citizens United to Compel Disclosure of Donors to Policy Ad Incidentally Mentioning a Political Candidate

Area of Law: First Amendment, Elections

Issues Presented: (1) Whether a policy advertisement mentioning a political candidate is subject to Colorado Const. art. XXVII, § 6(1), which requires disclosure of donors to electioneering communications, and (2) if so, whether the disclosure requirements are consistent with the First Amendment as articulated in Citizens United.

Brief Summary:

A non-profit corporation sought to air an advertisement criticizing the state for failing to audit its health care exchange and asking viewers to urge the incumbent governor, a candidate in the forthcoming election, to support an audit. Seeking to prohibit the Secretary of Colorado from requiring it to disclose the donors to the ad, the corporation filed a motion for summary judgment arguing that its ad was not campaign-related and, even if it was, compelling disclosure would infringe on its members' First Amendment right to free association. The Secretary filed a cross motion. The district court, concluding that the disclosure requirements did not violate the First Amendment, entered summary judgment for the Secretary.

The corporation appealed. First, disclosure requirements could properly reach issue speech such as this ad mentioning a candidate shortly before an election, even if the ad did not take a position on a candidacy. Second, Colorado's disclosure requirements, as applied to the corporation's ad, survive First Amendment scrutiny. The Tenth Circuit affirmed.

Extended Summary:

A non-profit corporation engaged in research and education of the public on public policy sought to air an advertisement criticizing the state's failure to audit its health care exchange. The ad urged viewers to call upon the incumbent governor, a candidate in the forthcoming election, to support an audit. The corporation sought an injunction to prohibit the Secretary of Colorado from compelling it to disclose the donors to its ad. See Colorado Const. art. XXVII, § 6(1). In a motion for summary judgment, the corporation argued that, because its ad was issue speech and not campaign-related speech, it was not subject to disclosure requirements. And even if the ad was campaign-related, the corporation contended, requiring disclosure would infringe on its members' First Amendment right to free association.

The Secretary filed a cross-motion for summary judgment seeking to compel disclosure. The district court granted the Secretary's motion, holding that the disclosure requirements did not violate the First Amendment right to free association. The corporation appealed. The Tenth Circuit affirmed.

First, the Tenth Circuit held that ads purporting to discuss only an issue, while incidentally mentioning a candidate shortly before an election, are sufficiently campaign-related to implicate the government's interest in disclosure. While Buckley v. Valeo, 424 U.S. 1 (1976), initially limited application of disclosure requirements to express advocacy that was unambiguously campaign-related, Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), expanded the reach of disclosure requirements beyond express advocacy to at least some forms of issue speech. Here, the ad's insinuation that the incumbent governor failed to take action on an issue could bear on his character or merits as a candidate.

Second, the Tenth Circuit held that Colorado's disclosure requirements, which were substantially similar to the requirements upheld in Citizens United, met the exacting scrutiny standard and was the least restrictive alternative. Exacting scrutiny "requires a substantial relation between the disclosure requirement and a sufficiently important governmental interest." In this case, the requirements serve the public's legitimate interest in knowing who communicates about a candidate shortly before an election. Colorado's spending requirements were sufficiently tailored because smaller elections can be influenced by less expensive communications.

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/14/14-1463.pdf

Panel: Tymkovich, Murphy, and Bacharach

Date of Issued Opinion: February 4, 2016

Docket Number: No. 14-1463

Decided: The Tenth Circuit affirmed summary judgment in favor of the Secretary of Colorado.

Case Alert Author: Veronica C. Gonzales-Zamora

Counsel:

Allen Dickerson (Tyler Martinez, Center for Competitive Politics, and Shayne M. Madsen and John Stuart Zakhem, Jackson Kelly, PLLC-Denver, with him on the briefs), Center for Competitive Politics, Alexandria, Virginia, for Appellant.

Glenn E. Roper, Deputy Solicitor General (Cynthia H. Coffman, Attorney General, Sueanna P. Johnson, Assistant Attorney General, and Frederick R. Yarger, Assistant Solicitor General, with him on the brief) Office of the Attorney General, Denver, Colorado, for Appellee.

Margaret G. Perl and Luis A. Toro, Colorado Ethics Watch, and Benjamin J. Larson, Ireland Stapleton Pryor & Pascoe, PC, Denver, Colorado, on the brief for Amici Curiae Colorado Ethics Watch and Colorado Common Cause.

Fred Wertheimer, Democracy 21, J. Gerald Hebert, Tara Malloy, Lawrence M. Noble, and Megan McAllen, The Campaign Legal Center, Donald J. Simon, Sonosky, Chambers, Sachse Enderson & Perry, LLP, and Scott L. Nelson, Public Citizen Litigation Group, Washington, DC, on the brief for Amici Curiae The Campaign Legal Center, Democracy 21 and Public Citizen.

Author of Opinion: Hon. Tymkovich

Case Alert Circuit Supervisor: Dawinder S. Sidhu

    Posted By: Veronica Gonzales @ 07/06/2016 11:55 AM     10th Circuit  

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