By Joseph M. (Max) Swindle; Staff Member (Vol. 14), Notes Editor (Vol. 15)
Political silence, the inability to have one’s voice heard, is an issue that marginalizes many citizens and residents. In an effort to remedy this pervasive issue, some citizens choose to give money to public policy think tanks that help foster discussion about important public policy topics. However, this important tool for political mobility seems to be under siege, as issue-focused organizations face costly litigation arising from burdensome reporting requirements.
In 2005, Independence Institute (“the Institute”), a Colorado think tank, commented on two referenda dealing with taxes and government spending. A referenda supporter sued the Institute, claiming that it was required to register as an “issue committee” with the state, and would therefore have to disclose the identities of its contributors. The complaint was thrown out, but not until the Institute incurred high costs. In addition to litigation costs, the Institute suffered immense opportunity costs. The time and money spent on the trial could have been spent educating the public on issues that impact their daily lives, like the tax referenda. Independence Inst. v. Coffman, 209 P.3d 1130 (Colo. App. 2008).
The Institute filed a lawsuit challenging Colorado’s constitutional provisions that deal with campaign finance for their vague language, as well as their disclosure and reporting requirements. Specifically, the Institute believed that requiring issue committees to disclose individual identities violated the rights to anonymous speech and political participation. The provisions were ultimately upheld in Independence Institute v. Coffman. Both the Colorado and United States Supreme Courts denied certiorari. 558 U.S. 1024 (2009).
The Court of Appeals’ ruling risks the possible chilling of organizations’ political speech, thus limiting the information by which voters make informed voting decisions.
The Burdensome Reporting Requirements
Article XXVIII of Colorado’s Constitution establishes campaign and political finance laws as constitutional provisions. The provisions ensure “that large contributions made to influence election outcomes are not concealed, and that special interest groups cannot disproportionately influence elections outcomes.” Independence Inst. v. Coffman, 209 P.3d 1130, 1135 (Colo. App. 2008). Under these provisions, a group of persons who support or oppose any ballot issue is an “issue committee” when that group has contributions or expenditures in excess of $200. Colo. Const. Art. XXVIII (2015). Once registered, the Colorado Revised Statutes state than an issue committee must submit reports to the Secretary of State that contain “the name and address of each person who has contributed $20 or more” and “the occupation and employer of each person who has made a contribution of $100 or more.” Colo. Rev. Stat. § 1-45-108. Reporting requirements are traditionally justified as needed to ensure no one contributes more to a candidate than is legal. These requirements are meant “to give the electorate useful information concerning the candidate’s views and those to whom the candidate is likely to be beholden.” Colo. Const. Art. XXVIII, Section 1 (2015).
Challenges to the Reporting Requirements
Soon after Independence Institute v. Bruescher, another Colorado case addressed questions regarding the constitutionality of Colorado’s campaign finance laws. In Sampson, et. al. v. Buescher (10th Cir. 2010), a group of residents in Douglass County, Colorado, joined together to oppose an annexation election for their neighborhood. The group spoke publicly and circulated fact sheets opposing the annexation. Their activities and expenditures brought them within the state’s definition of a ballot issue committee. However, the group did not register and report as a ballot issue committee in accordance with Colorado law. A private enforcement action was brought against them, but was eventually settled. The group then brought suit challenging the constitutionality of Colorado’s campaign finance laws. Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010).
The United States Court of Appeals for the Tenth Circuit ruled that the campaign finance laws did burden the individual citizens’ constitutional freedom of association. For example, the residents were burdened by attorney’s fees that cost more than the money used to speak on the issue. What’s more, the residents were burdened by the large amount of time, energy, and money needed to research the law and comply with its requirements. The Court found that the burdens imposed on the residents’ First Amendment rights outweighed the public interest in the disclosure of donors. Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010). The Court held that the residents’ right to association was infringed upon because there was not a substantial relation between the disclosure requirement and a sufficiently important governmental interest. Id. at 1261.
State Interest vs. First Amendment Rights
There are some factual differences between the Institute’s case and the Sampson case. The plaintiffs in Sampson were a group of residents—not a political organization. The key to theSampson court’s ruling was that the administrative and financial burdens the plaintiffs faced outweighed the state interest. One could argue those burdens are not as large for the Institute because it is a think tank, which presumably already keeps up with campaign finance laws.
While that argument does have some merit, there are other factors that show how similar the two cases are and why the Independence Institute court should have used a pattern of reasoning similar to the Sampson court. Like the plaintiffs in Sampson, the Institute is not supporting a candidate but an issue. These classic justifications for disclosure requirements are moot in the current case. The Institute is trying to educate citizens on an issue, not influence what individual candidate gets put into office. The speech in question is about an issue and not a candidate, and candidates are the focus of the campaign finance laws. In both cases, the organizations faced superfluous litigation that did not fit within the true purposes of Colorado’s campaign finance laws. Finally, the lawsuits against both organizations contravene the public’s and State’s best interests.
The Chilling Effect on Political Speech and Mobilization
The court’s ruling in Independence Institute will “chill” issue-oriented organizations from commenting on public policy. Organizations’ concerns about the costly litigation that can arise out of these actions will reduce open discussion on important policy matters. As a result, the public will be less informed and what is in their best interest might not be achieved.
Citizens give money to organizations like the Institute seeking to accomplish what individuals cannot, which is to build a voice loud enough to foster discussion on important topics. When these organizations are no longer willing to speak, it is actually the individual citizens whose voices are silenced.