Download - CRP Answer Brief
-
8/21/2019 CRP Answer Brief
1/55
Court of Appeals, State of Colorado
2 East 14th
Ave., Denver, CO 80203
COURT USE ONLY
Appeal from District Court, City and County ofDenver The Honorable Robert L. McGahey Jr.Case Number: 2014CV031851
Plaintiff/Appellee:
COLORADO REPUBLICAN PARTYv.
Defendant/Appellee: WAYNE WILLIAMS, in hisofficial capacity as Colorado Secretary of State
and
Intervenor Defendant/Appellant: COLORADOETHICS WATCH
Attorneys for Appellee Colorado Republican Party: Case No.: 2014CA001945
Name(s): Christopher O. Murray, #39340
Address: Brownstein Hyatt Farber Schreck, LLP410 Seventeenth Street, Suite 2200Denver, CO 80202-4432
Phone:FAX :E-mail:
ANSWER BRIEF
DATE FILED: June 10, 2015 6:33 PM
FILING ID: 1DDB7998288E6
CASE NUMBER: 2014CA1945
-
8/21/2019 CRP Answer Brief
2/55
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with all requirements of C.A.R. 28
and C.A.R. 32, including all formatting requirements set forth in these rules.
Specifically, the undersigned certifies that:
The brief complies with C.A.R. 28(g).Choose one:It contains 9,498 words (excluding the caption, table of contents,
table of authorities, certificate of service, this certificate ofcompliance, signature block, and any addendum).It does not exceed 30 pages.
The brief complies with C.A.R. 28(k).For the party raising the issue:It contains under a separate heading (1) a concise statement of theapplicable standard of appellate review with citation to authority; and(2) a citation to the precise location in the record (R. , p. ), not to anentire document, where the issue was raised and ruled on.
For the party responding to the issue:It contains, under a separate heading, a statement of whether AppelleeColorado Republican Party agrees with the statements of AppellantColorado Ethics Watch concerning the applicable standard of reviewand preservation for appeal, and if not, why not.
I acknowledge that my brief may be stricken if it fails to comply with any ofthe requirements of C.A.R. 28 and C.A.R. 32.
/s/ Christopher O. Murray
Christopher O. Murray, #39340
-
8/21/2019 CRP Answer Brief
3/55
Table of Contents
Page
i
STATEMENT OF THE ISSUES .............................................................................3
I. Nature of the Case................................................................................5
II. Course of Proceedings..........................................................................6
III. Disposition by the Trial Court .............................................................6
STATEMENT OF FACTS .......................................................................................7
SUMMARY OF THE ARGUMENT.......................................................................9
ARGUMENT..........................................................................................................11
I. Standard of Review ............................................................................11
II. Colorado Law Permits Political Parties to EstablishIndependent Expenditure Committees That Are Not Subject toContribution Limits or Source Restrictions Applicable toPolitical Parties...................................................................................14
A. Colorado Law Unambiguously Provides That PoliticalParties May Establish Independent ExpenditureCommittees ..............................................................................15
B. CORE Cannot Qualify as a “Political Party” or a“Political Committee” and May Not Be Treated As One
under Colorado Law ................................................................16C. CEW’s Argument Requires the Judicial Invention of A
New Type of Political Organization Not RecognizedUnder Existing Law.................................................................19
D. CEW’s Proposed Interpretation Is Incompatible With theStructure of Colorado’s Campaign Finance Regime...............20
III. The Establishment of Independent Expenditure Committees byPolitical Parties Is Consistent with Article XXVIII of theColorado Constitution ........................................................................22
IV. The District Court’s Finding that CORE is Independent of CRPIs Amply Supported by the Record....................................................24
A. CORE Does Not Coordinate Its Expenditures with CRPor Candidates ...........................................................................25
-
8/21/2019 CRP Answer Brief
4/55
Table of Contents(continued)
Page
ii
B. CORE Does Not and May Not Coordinate with CRP orCandidates In Any Respect......................................................27
C. CEW Relies Solely on Unsupported Speculation ofFuture Coordination.................................................................28
1. The CRP Chairman’s Limited Role Does NotUndermine the Independence of CORE’sExpenditures ..................................................................30
2. Limits on the Scope of CORE’s Mission Are BothAppropriate and Legally Required................................31
3. The Standing Rules’ Cross-Reference to the CRPBylaws Is Irrelevant to the Independence ofCORE’s Expenditures ...................................................34
V. CRP’s Right to Establish an Independent ExpenditureCommittee Is Protected by the First Amendment..............................35
A. Limits on Contributions to Independent ExpenditureOrganizations Are Per Se Unconstitutional.............................36
B. CORE’s Limited Relationship with CRP Does NotRender CORE A Political Party ..............................................38
C. Limitations on Contributions to Political Parties for theSole Purpose of Making Independent Expenditures AreLikely Unconstitutional ...........................................................43
CONCLUSION.......................................................................................................47
-
8/21/2019 CRP Answer Brief
5/55
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Bd. of Directors, Metro Wastewater Reclamation Dist. v. Nat'l Union
Fire Ins. Co. of Pittsburgh, PA,105 P.3d 653 (Colo. 2005)..................................................................................45
Buckley v. Valeo,424 U.S. 1 (1976)..........................................................................................34, 35
Carey v. Fed. Election Comm’n,791 F. Supp. 2d 121 (D.D.C. 2011)....................................................................44
Citizens United v. Federal Election Commission,558 U.S. 310 (2010)..................................................................................... pa ssim
Citywide Banks v. Armijo,313 P.3d 647 (Colo. App. 2011).........................................................................12
Colo. Republican Fed. Campaign Comm. v. Fed. Election Comm’n,
518 U.S. 604 (1996)............................................................................................41
Emily’s List v. Fed. Election Comm’n,581 F.3d 1 (D.C. Cir. 2009)................................................................................44
Federal Election Comm’n v. Colorado Republican Federal Campaign
Comm.,533 U.S. 431 (2001)......................................................................................37, 38
Huddleston v. Grand Cnty. Bd. of Equalization,913 P.2d 15 (Colo. 1996)....................................................................................13
Insul-Lite Window & Door Mfg., Inc. v. Indus. Comm'n,723 P.2d 151 (Colo. App. 1986).........................................................................11
-
8/21/2019 CRP Answer Brief
6/55
iv
In re Interrogatories Propounded by Governor Ritter, Jr., Concerning
Effect of Citizens United v. Fed. Election Comm'n,
558 U.S. ---- (2010) on Certain Provisions of Article XXIII ofConstitution of State, 227 P.3d 892, 894 (Colo. 2010) ......................................21
In re Interrogatory Propounded by Governor Roy Romer on House
Bill 91S-1005,814 P.2d 875 (Colo. 1991)..................................................................................30
In re Life Ins. Trust Agreement of Julius F. Seeman, Dated April 19,
1962,841 P.2d 403 (Colo. App. 1992).........................................................................12
Long Beach Area Chamber of Commerce v. City of Long Beach,603 F.3d 684 (9th Cir. 2010) ..............................................................................36
McConnell v. Federal Election Comm’n,540 U.S. 93 (2003)............................................................................37, 38, 42, 43
McCutcheon v. Fed. Election Comm’n,134 S. Ct. 1434 (2014)..................................................................................35, 43
Montez v. People,
269 P.3d 1228 (Colo. 2012)................................................................................17
N. Carolina Right to Life, Inc. v. Leake,525 F.3d 274 (4th Cir. 2008) ..............................................................................37
N.Y. Progress and Protection PAC v. Walsh,17 F. Supp. 3d 319, 322 (S.D.N.Y. 2014) ..........................................................28
New Design Constr. Co. v. Hamon Contractors, Inc.,215 P.3d 1172 (Colo. App. 2008).......................................................................10
P.F.P. Family Holdings, L.P. v. Stan Lee Media, Inc.,252 P.3d 1 (Colo. App. 2010).............................................................................11
People v. Cross,127 P.3d 71 (Colo. 2006)..............................................................................16, 18
-
8/21/2019 CRP Answer Brief
7/55
v
People v. Diaz ,2015 CO 28.........................................................................................................20
People v. Jaso,2014 COA 131....................................................................................................34
Pierson v. Black Canyon Aggregates, Inc.,48 P.3d 1215 (Colo. 2002)..................................................................................14
Reid v. Berkowitz ,315 P.3d 185 (Colo. App. 2013)...........................................................................9
Republican National Comm. v. Federal Election Comm’n,
698 F. Supp. 2d 150 (D.C.C. 2010)..............................................................38, 43
Republican Party of N.M. v. King ,741 F.3d 1089 (10th Cir. 2013) ................................................................... pa ssim
Rufer v. Fed. Election Comm’n,--- F. Supp. 3d ---, 2014 WL 4076053 (D.C.C. Aug. 19, 2014) ........................42
S. Fork Water & Sanitation Dist. v. Town of S. Fork ,252 P.3d 465 (Colo. 2011)....................................................................................9
Softrock Geological Services, Inc. v. Indus. Claim Appeals Office,328 P.3d 222 (Colo. App. 2012).........................................................................12
SpeechNow.org v. Fed. Election Comm’n,599 F.3d 686 (D.C. Cir. 2010)............................................................................36
Texans for Free Enter. v. Tex. Ethics Comm’n,732 F.3d 535 (5th Cir. 2013) ..............................................................................36
Thalheimer v. City of San Diego,2012 WL 177414 (S.D. Cal. Jan. 20, 2012) .......................................................45
Wis. Right to Life State Political Action Comm. v. Barland ,664 F.3d 139 (7th Cir. 2011) ..............................................................................36
-
8/21/2019 CRP Answer Brief
8/55
vi
Statutes
C.R.S. § 1-45-103 ............................................................................................. pa ssim
C.R.S. § 1-45-103.7 .............................................................................................7, 15
C.R.S. § 1-45-107.5 .......................................................................................... pa ssim
C.R.S. § 1-45-108 ....................................................................................................19
Constitional Provisions
Colo. Const, art. XXVIII, § 2 ..................................................................13, 16, 2, 24
Colo. Const., art. XXVIII, § 3 .......................................................................... pa ssim
Colo. Const., art. XXVIII, § 5 .....................................................................19, 21, 24
Colo. Const., art. XXVIII, § 9 .................................................................................33
Colo. Const., art XXVIII § 10 .................................................................................33
U.S. Const., amend. I ........................................................................................ pa ssim
Other Authorities
11 C.F.R. § 104.20...................................................................................................31
11 C.F.R. § 110.20.....................................................................................................2
8 CCR 1505-6, Rule 1.4.........................................................................24, 25, 26, 32
8 CCR 1505-6, Rule 5.1...........................................................................................19
8 CCR 1505-6, Rule 5.2...........................................................................................15
8 CCR 1505-6, Rule 8.1...........................................................................................30
FEC MUR 5943 .......................................................................................................26
FEC MUR 5440 .......................................................................................................28
FEC MUR 5754 .......................................................................................................27
-
8/21/2019 CRP Answer Brief
9/55
vii
FEC MUR 6059 .......................................................................................................27
-
8/21/2019 CRP Answer Brief
10/55
INTRODUCTION
Plaintiff/Appellee Colorado Republican Party (“CRP”) submits this Answer
Brief and requests that the Court affirm the district court’s entry of summary
judgment in CRP’s favor. Because “any person,” may establish an independent
expenditure committee under Colorado law, the district court correctly held that
the Colorado Republican Party Independent Expenditure Committee (“CORE”),
like all other independent expenditure committees, may accept contributions in
unlimited amounts from any source. The district court’s construction of the
relevant statutes not only comports with their plain text and Colorado’s broader
campaign finance regulatory regime, but is necessary to protect CRP’s First
Amendment rights of speech and association.
STATEMENT OF THE ISSUES
While CRP largely agrees with Intervenor Defendant/Appellant Colorado
Ethics Watch’s (“CEW”) recitation of three of the issues before the Court, it has
reformulated their presentation somewhat, in part to reflect the appropriate
standard of review applicable to the district court’s determinations. In addition,
-
8/21/2019 CRP Answer Brief
11/55
2
CRP also raises a fourth issue pertaining to the First Amendment implications of a
finding that the district court’s legal conclusions were erroneous.1
1. Whether the district court erred in ruling that the monetary limits and
source restrictions2 set forth in Colo. Const., art. XXVIII, § 3 do not apply to
contributions received by an independent expenditure committee established by a
political party pursuant to C.R.S. § 1-45-107.5.
2. If the district court did not err by interpreting Colorado’s independent
expenditure committee statute to allow a political party to establish an independent
expenditure committee that is not subject to contribution limits and source
restrictions, whether the statute is unconstitutional as contrary to Colo. Const., art.
XXVIII, § 3.
3. Whether the district court’s factual finding that CORE is independent
of CRP was clearly erroneous and not supported by the record.
4. If the district court erred in holding that an independent expenditure
committee established by a political party may accept contributions not subject to
1 Although CEW addressed the constitutional argument in its opening brief, see Opening Brief at 19-23, it did not identify it as a separate issue.
2 CRP does not challenge the validity or applicability of the federal and state prohibitions on independent expenditures—and contributions for the purpose ofeffectuating the same—by foreign nationals and foreign governments inconnection with state and local elections. See 11 C.F.R. § 110.20; Colo. Const.,art. XXVIII, § 3(12)(a)-(b).
-
8/21/2019 CRP Answer Brief
12/55
3
amount and source restrictions, whether Article XXVIII, § 3 of the Colorado
Constitution and/or C.R.S. § 1-45-107.5 are, as applied to CRP in this case, an
unconstitutional abridgement of CRP’s speech and associational freedoms under
the First and Fourteenth Amendments to the United States Constitution.
STATEMENT OF THE CASE
I. Nature of the Case
This case hinges on a straightforward application of the unambiguous
statutory directive that any person—including a political party—may establish an
“independent expenditure committee,” which, by definition, may accept unlimited
contributions from any source. Indeed, CEW’s Opening Brief effectively admits
that CORE is an “independent expenditure committee” under Colorado law.
Because such an outcome is ideologically unacceptable to CEW, however, it has
coupled its admission with a request that this Court sit in place of the General
Assembly and correct what it views as a legislative mistake by rewriting the
relevant statutes to effectively create a new category of “independent expenditure
committee” that is subject to contribution restrictions. The Court cannot do this,
and even if it were tempted to do so, it would necessarily run afoul of the First
Amendment.
-
8/21/2019 CRP Answer Brief
13/55
4
II. Course of Proceedings
On May 8, 2014 CRP filed a Verified Complaint against the Secretary of
State in the district court seeking a declaration that Colorado law and/or the First
Amendment to the United States Constitution provide that CRP may sponsor,
maintain and operate an independent expenditure committee that may raise funds
in any amounts from any source permissible under Colorado law. R. 1-10. CEW
filed an unopposed motion to intervene and answer to the Verified Complaint on
June 17, 2014. R. 22-28. The district court allowed CEW’s intervention on June
18, 2014. R. 29. CRP moved for summary judgment based on the parties’ factual
stipulations on August 8, 2014. R. 57-78. Although the Secretary of State filed
an answer to the Verified Complaint, R. 34-43, he did not participate in the
summary judgment briefing.
III. Disposition by the Trial Court
On September 30, 2014, the district court entered summary judgment in
CRP’s favor, “confirming CRP’s authorization under existing law to sponsor,
maintain, and operate [CORE] as would any other person under Colorado law.” R.
152. CEW filed a notice of appeal on October 6, 2014. R. 159-165.
-
8/21/2019 CRP Answer Brief
14/55
5
STATEMENT OF FACTS
CRP is a Colorado unincorporated non-profit membership organization, and
is comprised of the officers and certain other representatives from each of the
sixty-four affiliated Republican county political party committees, and Republican
elected officials at the state and district level in Colorado. R. 58. On November 8,
2013 CRP petitioned the Colorado Secretary of State for a declaratory order
requesting confirmation that Colorado law permits CRP to establish an
independent expenditure committee that may raise funds in unlimited amounts
from any permissible source. R. 4. While declining to issue a declaratory order,
the Secretary of State’s office provided an advisory opinion on February 6, 2014,
which concluded that political parties are entitled to operate independent
expenditure committees under Colorado law, and that such committees may raise
funds in any amount from any permissible source. R. 137-47.
On May 7, 2014 CRP registered CORE with the Secretary of State as an
independent expenditure committee. R. 83. In accordance with the Committee
Standing Rules and Governance Provisions of the Colorado Republican Party
Independent Expenditure Committee (the “Standing Rules”), which were adopted
on August 8, 2014, id., CORE is governed by an Executive Director and a
Management Committee consisting of at least three but no more than seven
-
8/21/2019 CRP Answer Brief
15/55
6
individuals. R. 79 [Rule 2]. CORE’s first Executive Director was appointed on
May 7, 2014, and two additional members of the Management Committee took
office on July 29, 2014. R. 59. While the Chairman of the CRP initially appoints
the Executive Director and Management Committee members, their terms of office
are fixed by the Standing Rules, and they may be removed by the Chairman only
“for cause, such as fraud or malfeasance, upon the recommendation of the
remaining members of the management committee.” R. 79 [Rule 3].
The Standing Rules contain comprehensive and detailed directives that
categorically proscribe any coordination between CORE and either CRP or
candidates for state and local office in Colorado. Specifically, the management
and development of CORE’s plans, projects, activities, and expenditures must be
conducted entirely independently of CRP. R. 80 [Rule 5]. In the same vein,
officers, agents and other affiliates of both CRP and CORE are strictly prohibited
from making any requests or suggestions to, or otherwise communicating with,
their counterparts in the other organization concerning expenditures or
electioneering communications. R. 81 [Rule 11]. Parallel restrictions govern
CORE’s interactions with candidates whom it will support. R. 80 [Rules 5, 8, 10].
In addition to these extensive safeguards against the sharing of non-public
information, the Standing Rules also provide for a pervasive structural separation
-
8/21/2019 CRP Answer Brief
16/55
7
between CRP and CORE. For example, CORE’s Executive Director and
Management Committee members must not hold any office or position with the
CRP party organization during their tenures, R. 80 [Rule 6], and CRP and CORE
are generally prohibited from sharing common consultants or vendors. R. 81 [Rule
13]. Further, aside from voting in party primaries or caucuses in their personal
capacities, CORE’s directors may not participate in any way in the nomination or
designation of any Republican candidate for public office. R. 80 [Rule 7].
In an affidavit submitted to the district court, Ryan Call, then the Chairman
of CRP, affirmed that his interactions with CORE’s Executive Director and
Management Committee complied fully with the Standing Rules. R. 84.
SUMMARY OF THE ARGUMENT
The Colorado General Assembly already has resolved the issue before the
Court by expressly providing that “any person” may establish an “independent
expenditure committee.” See C.R.S. § 1-45-103(11.5). A creature of the Fair
Campaign Practices Act, an independent expenditure committee is by definition
unencumbered by any restrictions on the contributions it may accept, see C.R.S. §
1-45-103.7(2.5)—a prerogative that derives directly from the United States
Supreme Court’s holding in Citizens United v. Federal Election Commission, 558
-
8/21/2019 CRP Answer Brief
17/55
8
U.S. 310 (2010), that no valid governmental interest can sustain limitations on
independent expenditures.
To avert this ideologically unpalatable outcome, CEW engages in
interpretative acrobatics in an effort to subject CORE to the contribution limits
imposed on political parties. This argument— effectively a request to create a new
class of political organization by judicial fiat—is incompatible with the plain
statutory text and also would introduce disruptive repercussions into the larger
campaign finance regulatory regime. In the same vein, CEW proffers a halfhearted
argument that the relevant statutes offend Article XXVIII, § 3 of the Colorado
Constitution, despite the absence of any textual support for such a proposition.
In addition, CEW assails the district court’s factual finding that CORE is
independent of CRP. An analysis of the Standing Rules, however, confirms that
they erect a comprehensive and robust organizational infrastructure to prevent
coordination of any sort between CORE and either CRP or candidates. CEW’s
contentions to the contrary ultimately are reducible to speculative conjectures
about how the Standing Rules’ provisions could in theory be engineered to induce
coordination, and offer no basis for disturbing the district court’s conclusion.
Finally, the imposition of source or amount restrictions on contributions to
independent expenditure committees would transgress First Amendment freedoms
-
8/21/2019 CRP Answer Brief
18/55
9
of speech and association. Regardless of whether limits on contributions to
political parties themselves for independent expenditures remain constitutionally
valid (an increasingly dubious proposition), federal courts, including the Tenth
Circuit, have consistently affirmed that independent expenditure organizations—to
include those founded by and maintaining ties with political parties—retain a First
Amendment prerogative to accept contributions without limit from any source.
ARGUMENT
I. Standard of Review
This Court generally will “defer to the trial court’s credibility determinations
and will disturb its findings of historical fact only if they are clearly erroneous and
are not supported by the record,” but will “review de novo the trial court's
application of the governing statutory standards.” Reid v. Berkowitz , 315 P.3d 185,
189 (Colo. App. 2013) (internal citation omitted); see also S. Fork Water &
Sanitation Dist. v. Town of S. Fork , 252 P.3d 465, 468 (Colo. 2011). The parties
agree that the questions of statutory and constitutional interpretation presented—
i.e., whether Colorado law and/or the federal Constitution permit CRP to establish
an independent expenditure committee that may accept contributions in unlimited
amounts and not subject to the source restrictions imposed on political parties—are
subject to de novo consideration by this Court.
-
8/21/2019 CRP Answer Brief
19/55
10
Integral to the district court’s legal conclusions, however, was its factual
finding that CORE is operationally and functionally “independent” of CRP, and
thus qualifies as an “independent expenditure committee” within the meaning of
Section 1-45-103(11.5) of the Colorado Revised Statutes. Concluding that
CORE’s Standing Rules adequately ensure that CORE’s operations and activities
remain separate from and uncoordinated with those of CRP, the district court noted
that CEW “has offered no evidence that [CORE] will, in the future, not abide by its
own rules.” R. 151. Predicating its application of the relevant statutory provisions
on this antecedent finding of CORE’s independence, the district court entered
summary judgment in CRP’s favor.
CEW seeks to recast this quintessentially factual determination as a legal
pronouncement by characterizing it as the “interpretation of a written instrument
that is also subject to de novo review.” Opening Brief at 9. This argument,
however, conflates disputes concerning the legal denotation of contractual words
and phrases (which are undoubtedly questions of law), see New Design Constr. Co.
v. Hamon Contractors, Inc., 215 P.3d 1172, 1181 (Colo. App. 2008), with judicial
efforts discern the practical effect of unambiguous terms, which are inescapably
factual endeavors, see Insul-Lite Window & Door Mfg., Inc. v. Indus. Comm'n, 723
P.2d 151, 152 (Colo. App. 1986) (affirming agency’s “factual determinations”
-
8/21/2019 CRP Answer Brief
20/55
11
concerning the “nature of the [parties’] relationship” which was in turn predicated
partly on agency’s analysis of parties’ written contract).
As discussed infra, there is no material disagreement regarding the contents
or definitional meaning of the Standing Rules’ provisions; no party contests, for
example, the proper construction of the prohibition on CRP and CORE’s retention
of common vendors (Rule 13) or the exclusion of CRP personnel from CORE’s
management committee (Rule 5). The Standing Rules were introduced in the trial
court not as a source of legal rights or obligations between the parties (i.e., CEW
and CRP), but rather only as extrinsic evidence of an operative fact, i.e., whether
the Standing Rules’ structural safeguards in fact secure CORE’s independence
from CRP. In this vein, the apposite analogies are not cases featuring interpretive
disagreements concerning what is entailed or commanded by particular
organizational bylaws, see P.F.P. Family Holdings, L.P. v. Stan Lee Media, Inc.,
252 P.3d 1 (Colo. App. 2010) (cited by CEW), but rather disputes concerning the
nature and status of the parties’ actual relationship. Colorado courts have
recognized that although cases pertaining to, e.g., the existence of an independent
contractor or agency relationship, nominally feature the application of legal terms
of art, they ultimately often pivot on a factual appraisal of the parties’ actual
conduct and dealings. See, e.g., Citywide Banks v. Armijo, 313 P.3d 647, 651
-
8/21/2019 CRP Answer Brief
21/55
12
(Colo. App. 2011) (“The existence of an agency relationship is ordinarily a
question of fact, and thus a trial court's finding of an agency relationship may not
be set aside unless clearly erroneous.”) (internal citation omitted); Softrock
Geological Services, Inc. v. Indus. Claim Appeals Office, 328 P.3d 222, 224 (Colo.
App. 2012) (“The existence of an employment relationship is a question of fact.”).
Because the district court’s conclusions regarding the existence and degree
of CORE’s independence from CRP are more accurately conceptualized as
findings of fact, they are subject to reversal only upon a showing that they were
wholly unsupported by the record. See In re Life Ins. Trust Agreement of Julius F.
Seeman, Dated April 19, 1962, 841 P.2d 403, 406 (Colo. App. 1992) (“A court's
finding based upon a choice between two plausible views of the weight of the
evidence or upon a choice of conflicting inferences from the evidence is ‘not
clearly erroneous.’”).
II. Colorado Law Permits Political Parties to Establish Independent
Expenditure Committees That Are Not Subject to Contribution Limits
or Source Restrictions Applicable to Political Parties
The Colorado General Assembly already has settled the question of whether
political parties may establish independent expenditure committees. In 2010, that
body adopted amendments to the Fair Campaign Practices Act that unambiguously
provide one or more persons may form an independent expenditure committee. A
-
8/21/2019 CRP Answer Brief
22/55
13
political party is a person under the Colorado Constitution. Hence, CRP is entitled
to establish an independent expenditure committee on the same terms as any other
person in Colorado. CEW’s tortuous interpretation, which struggles to interpolate
the contribution limits applicable to political parties into the statute governing
independent expenditure committees, cannot be reconciled with the clear text or
broader regulatory structure.
A. Colorado Law Unambiguously Provides That Political PartiesMay Establish Independent Expenditure Committees
“Where statutory language is clear and unambiguous…there is no need to
resort to interpretive rules of statutory construction.” Huddleston v. Grand Cnty.
Bd. of Equalization, 913 P.2d 15, 18 (Colo. 1996). Colorado law provides “one or
more persons that make an independent expenditure in an aggregate amount in
excess of one thousand dollars or that collect in excess of one thousand dollars
from one or more persons for the purpose of making an independent expenditure”
constitute an “independent expenditure committee.” C.R.S. § 1-45-103(11.5). The
Colorado Constitution defines “person” as, inter alia, “any…political party or
other organization or group of persons.” Colo. Const., art. XXVIII, § 2(11); C.R.S.
§ 1-45-103(13). Thus, CRP, as a political party, is entitled to establish an
independent expenditure committee on equal terms as any other individual or
organization. See Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1218-
-
8/21/2019 CRP Answer Brief
23/55
14
19 (Colo. 2002) (“[I]f courts can give effect to the ordinary meaning of the words
adopted by a legislative body, the statute should be construed as written since it
may be presumed that the General Assembly meant what it clearly said.” (internal
quotation omitted)). It did so when it established CORE.
B. CORE Cannot Qualify as a “Political Party” or a “Political
Committee” and May Not Be Treated As One under Colorado
Law
Unable to contrive any ambiguity in the statutory text, CEW implicitly
concedes that CORE is indeed an “independent expenditure committee,” within the
meaning of C.R.S. § 1-45-103(11.5), but argues that it must be subject to the
contribution source and amount limitations imposed on political parties pursuant to
Article XXVIII, § 3. But CORE simply is not a political party. Article XXVIII, §
2(13) defines “political party” as an entity that “nominate[s] candidates for the
official general election ballot.” CORE undisputedly does not nominate
candidates; indeed, the Standing Rules explicitly proscribe CORE’s Executive
Director and Management Committee from participating “in the nomination or
designation of any Republican candidate for office.” R. 80 [Rule 7].3
3 Although the denotation of “political party” encompasses regional affiliates“at the state, county, and election district levels,” this ancillary facet of thedefinition—which pertains only to geographical subunits of the CRP—has noapplication to CORE, which is a separate and distinct entity that conducts
-
8/21/2019 CRP Answer Brief
24/55
15
If that were not enough, Colorado law expressly provides that an
independent expenditure committee “shall not be treated as a political committee
and, therefore, shall not be subject to” the contribution limits otherwise imposed on
political committees. C.R.S. § 1-45-103.7(2.5); see also 8 CCR 1505-6, Rule 5.2
(“A committee that raises money solely for the purpose of making independent
expenditures, and which does not make contributions to candidates, shall be an
independent expenditure committee and shall not be considered a political
committee. An independent expenditure committee is not subject to the political
committee restrictions in Article XXVIII, Section 3(5)”).
Nevertheless, CEW contends that the statute exempts independent
expenditure committees only from the contribution limits imposed by Article
XXVIII, § 3(5), which apply specifically to political committees, and argues on this
basis that independent expenditure committees may be subjected to the
contribution limits applicable to political parties. This is unavailing for two
reasons. First, C.R.S. § 1-45-107.5’s reference to Section 3(5) reflects the fact
that, prior to the statute’s enactment, a committee established by a political party to
make independent expenditures would qualify as a “political committee” and be
governed by the contribution limits applicable to such organizations. See Art.
independent operations governed by individuals not affiliated in any way with theCRP.
-
8/21/2019 CRP Answer Brief
25/55
16
XXVIII, § 2(12)(a) and (c)(III) (contemplating the creation of political committees
by political parties). Consistent with Citizens United , C.R.S. § 1-45-107.5 plainly
intended to provide that organizations making only independent expenditures now
constitute a distinct organizational species and are not subject to any contribution
limits; the contention that the statute sub silentio substituted the contribution
ceiling applicable to political committees with that governing political parties is
untenable. See People v. Cross, 127 P.3d 71, 73 (Colo. 2006) (“We do not add or
subtract statutory words that contravene the legislature's obvious intent.”). Second,
CEW’s argument fails for the simple reason that, whatever else it might be, CORE
is not itself a “political party,” i.e., an entity that “nominate[s] candidates for the
official general election ballot.” Art. XXVIII, § 2(13). Thus, there is no textual
basis for subjecting it to Art. XXVIII, § 3(3) and 3(4), which by their terms apply
only to political parties themselves.
C. CEW’s Argument Requires the Judicial Invention of A New Type
of Political Organization Not Recognized Under Existing Law
In effect, CEW advocates the judicial creation of an entirely new species of
political organization nowhere contemplated in Article XXVIII or the Colorado
Revised Statutes—namely, an entity formally denominated as an “independent
expenditure committee” but subject to the contribution restrictions that are
applicable only to political parties. The novel class of entity envisaged by CEW is
-
8/21/2019 CRP Answer Brief
26/55
17
wholly untethered from the constitutional and statutory texts. See Montez v.
People, 269 P.3d 1228, 1232 (Colo. 2012) (“In respecting the legislature's
phrasing, we do not add words to a statute that simply are not there.”). It is also
conceptually and legally an oxymoron. Independent expenditure committees are,
by definition, organizations that make only independent expenditures and thus may
accept contributions from virtually any source without limitation. C.R.S. § 1-45-
103(11.5). As discussed infra, this distinguishing attribute of independent
expenditure committees ultimately is of constitutional provenance and has been
expressly adopted by the General Assembly in response to Citizens United . In
short, the statutory text unambiguously provides that all “persons,” which is
explicitly defined to include political parties, may organize “independent
expenditure committees.” Such entities are necessarily entitled to accept unlimited
contributions from any source.
D. CEW’s Proposed Interpretation Is Incompatible With the
Structure of Colorado’s Campaign Finance Regime
In addition to finding no license in the constitutional or statutory text,
CEW’s argument for the judicial invention of a heretofore unrecognized
organization—essentially, a quasi-independent expenditure committee—is
inconsistent with the broader regulatory structure, which encapsulates a clear
delineation between independent expenditure committees and other entities that
-
8/21/2019 CRP Answer Brief
27/55
18
remain subject to contribution limitations. If adopted, CEW’s argument would
upend the carefully crafted regulatory regime and engender numerous interpretive
puzzles that would carry courts inexorably farther and farther away from the
constitutional and statutory texts. See People v. Cross, 127 P.3d 71, 74 (Colo.
2006) (“[W]e must give effect to the ordinary meaning of the language and read
the provisions as a whole, construing each consistently and in harmony with the
overall statutory design, if possible.”).
Various provisions of the Fair Campaign Practices Act and its implementing
regulations directly distinguish between independent expenditure committees and
other types of political organizations. CEW’s argument—which necessarily entails
devising a novel intermediate classification for independent expenditure
committees established by a political party—leaves unanswered whether and to
what extent CORE is or is not treated as an independent expenditure committee for
other regulatory and disclosure purposes.
For example, C.R.S. § 1-45-108(2.5) requires all committees other than
independent expenditure committees to file trigger reports with elections officials
upon receiving contributions of $1,000 or more within 30 days of the primary or
general. It remains entirely unclear whether importing the contribution limits
applicable to political parties (as CEW advocates) would render CORE subject to
-
8/21/2019 CRP Answer Brief
28/55
19
this reporting requirement. In addition, C.R.S. § 1-45-108(3) and C.R.S. § 1-45-
107.5(3) impose similar but different registration requirements for independent
expenditure committees relative to other types of organizations, which in turn
raises the question of which registration rubric governs CORE.
Furthermore, Article XXVIII, § 5 and 8 CCR 1505-6, Rule 5.1 prescribe
detailed disclosure and disclaimer mandates specifically for “independent
expenditures.” CEW’s argument, however, appears to presuppose that
independent expenditure committees established by political parties inherently are
not “independent” of the party, which presents the question of whether their
expenditures are deemed “independent expenditures” for reporting purposes. The
fact that CEW seems to implicitly concede that CORE qualifies as an “independent
expenditure committee” within the literal meaning of the statutory term further
confounds the analysis, and aptly illustrates the logical and doctrinal contradictions
that pervade CEW’s arguments.
CEW’s inability to reconcile its theory with any reasonable construction of
the controlling legal texts underscores that its argument fundamentally is for the
judicial redesign of the statutory and regulatory scheme to accommodate CEW’s
disapprobation of CORE. Even if it were consonant with the First Amendment
(and it is not), CEW’s desire may be redressed only by the General Assembly in
-
8/21/2019 CRP Answer Brief
29/55
20
the form of statutory amendments; such a remedy is not for the courts to provide.
See People v. Diaz , 2015 CO 28, ¶ 15 (“[I]n interpreting a statute, we must accept
the General Assembly's choice of language and not add or imply words that simply
are not there…we refuse the defendant's invitation to venture into legislative
territory.” (internal quotation omitted)).
III. The Establishment of Independent Expenditure Committees by Political
Parties Is Consistent with Article XXVIII of the Colorado Constitution
In a paragraph that reads more like an assertion than an argument CEW
contends that, if the governing statutes permit political parties to establish
independent expenditure committees not subject to contribution limits (as they do),
they “contradict” the source and amount restrictions imposed by Art. XXVIII, § 3.
Opening Brief at 14. CEW is mistaken. Independent expenditure committees are
never mentioned in Article XXVIII, § 3; they are the creature of a later enacted
statute, C.R.S. § 1-45-107.5, the general validity of which is undisputed. CEW’s
argument that Article XXVIII, § 3 countenances the existence of independent
expenditure committees generally but implicitly imposes contribution limits only
on independent expenditure committees established by political parties simply
finds no warrant in the constitutional text.4
4 To be sure, Article XXVIII mentions “independent expenditures,” but onlyin the context of acknowledging that such independent expenditures are generally
-
8/21/2019 CRP Answer Brief
30/55
21
To the extent CEW’s argument relies on what it apprehends to be an
amorphous underlying intent animating Article XXVIII, § 3, it likewise is
unavailing. Indeed, the only provision of Article XXVIII, § 3 that directly
addresses independent expenditures prohibits labor organizations and most
corporations from engaging in them, a proscription the Colorado Supreme Court
agreed violated the federal Constitution in light of Citizens United . See In re
Interrogatories Propounded by Governor Ritter, Jr., Concerning Effect of Citizens
United v. Fed. Election Comm'n, 558 U.S. ---- (2010) on Certain Provisions of
Article XXIII of Constitution of State, 227 P.3d 892, 894 (Colo. 2010) (“To the
extent that section 3(4) of article XXVIII of the Colorado Constitution makes it
unlawful for a corporation or labor organization to make expenditures expressly
advocating the election or defeat of a candidate, it violates the dictates of the First
Amendment of the United States Constitution.”). While the remaining facets of
Article XXVIII, § 3 are valid, the illustrative point is that—to the extent the
(invalidated) provision embodies some overarching conception what sorts of
entities should be engaging in independent expenditures beyond its (again,
unconstitutional) prohibition against labor unions and corporations—it is likely
permissible. See Colo. Const., art. XXVIII, §§ 2(9) and 5. Independentexpenditure committees, as a separate organ for raising, spending and disclosingfunds related to political activity are simply not mentioned.
-
8/21/2019 CRP Answer Brief
31/55
22
inconsistent with federal jurisprudence regarding the protected status of
independent expenditures. To the extent the Court detects a potential incongruence
between the original understanding of independent expenditures encapsulated in
Art. XXVIII, § 3 and regnant Supreme Court precedent, this possible discrepancy
counsels in favor of a narrow construction of the state constitutional provision to
avoid a potential conflict with its federal counterpart.
In sum, nothing in the plain text of Article XXVIII, § 3 prohibits C.R.S. § 1-
45-107.5’s authorization of independent expenditure committees established by
political parties; the inquiry thus should be at an end.
IV. The District Court’s Finding that CORE is Independent of CRP Is
Amply Supported by the Record
The district court’s factual finding that CORE operates as an organization
separate and district from CRP—thus rendering its expenditures “independent” of
CRP—is well supported and should not be disturbed on appeal. As discussed
below, the Standing Rules prescribe detailed policies and firewalls that ensure that
CORE’s activities and operations are not coordinated in any respect with CRP or
any candidate.
While CEW fixates on several items in the Standing Rules that it maintains
threaten CORE’s independence, a closer examination of those provisions in their
proper context reveals that they are wholly consistent with CORE’s robust anti-
-
8/21/2019 CRP Answer Brief
32/55
23
coordination regime. In short, CEW’s argument can be condensed to speculation
that certain verbiage in the Standing Rules might someday be manipulated to
facilitate coordination; such unsupported ruminations are insufficient to upend the
district court’s well-considered factual finding that CORE operates independently
of CRP and candidates.
A. CORE Does Not Coordinate Its Expenditures with CRP or
Candidates
As a preliminary matter, CEW contends that “it was not necessary for Ethics
Watch to prove that the Party would direct specific expenditures made by its
independent expenditure committee. It is sufficient that the Party controls the
independent expenditure committee in general.” Opening Brief at 18. Simply put,
this is an inaccurate statement of the law. The definitional hallmark of an
independent expenditure committee is its sponsorship of “independent
expenditures.” C.R.S. § 1-45-103(11.5). The legal definition of an “independent
expenditure” is in turn tethered to the presence or absence of coordination in
connection with that particular disbursement. See 8 CCR 1505-6, Rule 1.4.2.5
5 Even if CORE did coordinate its expenditures with CRP, it is not clear thatthere is legal significance to coordinating an expenditure with a political partyunless done on behalf of a candidate for public office. Although Rule 1.4.2defines the term “coordination” by reference to both candidates and parties, theColorado Constitution’s definition of “independent expenditure” provides that an“independent expenditure” loses its independent status only if it is “controlled by
-
8/21/2019 CRP Answer Brief
33/55
24
That the locus of any coordination analysis is expenditure-specific imparts
symmetry to the regulatory scheme. The legal significance of a coordinated
expenditure is that its particular value is imputed as a contribution to the specific
candidate or party with whom it is coordinated.
Indeed, the federal campaign finance regulatory scheme is substantially
similar in this respect. The Federal Election Commission (“FEC”) has long
insisted that to state a viable coordination claim, a complainant must identify a
specific communication or expenditure that is alleged to have been coordinated.
See, e.g., MUR 5869 (In re Montana Education Association-Montana Federation of
Teachers) Factual & Legal Analysis at 6 (dismissing complaint, noting that despite
generalized allegations of coordination, “[t]he complaint neither provides nor
identifies any communications made by [labor union] that would meet one or more
of the content standards” for a coordinated communication); MUR 6540 (In re
Rick Santorum), Statement of Reasons of Commissioners McGahn and Hunter at
or coordinated with a candidate or candidate’s agent.” Colo. Const., art. XXVIII, §2(9) (emphasis added). While Section 5 of Article XXVIII provides that
expenditures “on behalf of a candidate for public office that are coordinated withor controlled by the candidate or the candidate’s agent, or political party” lose theirindependent status, independent expenditures not made on behalf of a candidate for
public office but coordinated with a political party appear to remain independentunder the Colorado Constitution. Id., § 5(3)(emphasis added). Because thedistrict court correctly found that CORE and CRP do not coordinate, however, theCourt need not address this interpretive question.
-
8/21/2019 CRP Answer Brief
34/55
25
22-23 (supporting dismissal of complaint that presented generalized suspicion of
coordination but “fail[ed] to identify any of these alleged in-kind contributions
with any specificity”).
B. CORE Does Not and May Not Coordinate with CRP or
Candidates In Any Respect
Regardless of whether the proper reference point is particular expenditures
or its operations as a whole, CORE undoubtedly is independent of CRP.
Importantly, as the district court concluded, the Standing Rules contain a panoply
of safeguards that secure a comprehensive and durable separation between CORE
and the party organization. First, CORE is governed by an Executive Director and
Management Committee, none of whom may be affiliated in any way with the
CRP. R. 80 [Rule 6]. More fundamentally, the Standing Rules specifically
foreclose all avenues of coordination enumerated in 8 CCR 1505-6, Rule 1.4.
Standing Rule 5 constructs a robust firewall that explicitly directs that “[t]he
management or development of any of the plans, projects, activities, or
expenditures of the IEC will be conducted independently” of any candidate or
political party. R. 80. Further, the Executive Director and Management
Committee are strictly prohibited from “consulting with or soliciting or accepting
any direction from any officer, agent or committee of any political party committee
affiliated with the Colorado Republican Committee,” and CRP officers, agents and
-
8/21/2019 CRP Answer Brief
35/55
26
affiliates likewise may not make any “requests or suggestions” to CORE in
connection with its operations and activities. R. 81 [Rule 11].
To buttress these safeguards, the Standing Rules further provide that all
operational plans and significant expenditures must be specifically approved by the
independent Management Committee ( see R. 79 [Rule 4]), and prohibit the
Executive Director and Management Committee from participating in the selection
or nomination of Republican candidates. R. 80 [Rule 8]. Recognizing that
overlapping personnel may give rise to coordination, see 8 CCR 1505-6, Rule
1.4.2(b), CORE and CRP also will not share common consultants or vendors. R.
81 [Rule 13].
C. CEW Relies Solely on Unsupported Speculation of Future
Coordination
There is no evidence whatsoever that either CORE or CRP has ever deviated
from the strictures imposed by the Standing Rules; CEW’s speculation that the
Standing Rules’ safeguards may be circumvented or weakened in the future is
insufficient to sustain a finding of coordination between CRP and CORE. See
generally FEC MUR 5943 (In re Californians for Equal Representation) Factual &
Legal Analysis at 6 (dismissing complaint premised on general averments of
coordination, explaining that “unwarranted legal conclusions from asserted facts,
or mere speculation, will not be accepted as true, and ‘[s]uch speculative charges,
-
8/21/2019 CRP Answer Brief
36/55
27
especially when accompanied by direct refutation, do not form an adequate basis to
find reason to believe that a violation of [campaign finance laws] has occurred.’”
(internal citation omitted)); MUR 6059 (In re Sean Parnell for Congress, et al.)
Factual & Legal Analysis at 5 (dismissing complaint after finding that it “does not
contain specific allegations as to” coordination, but rather rested solely on the
assumption that coordination occurred because candidate had met with the
independent expenditure committee); MUR 5754 (In re MoveOn.org Voter Fund)
Factual & Legal Analysis Regarding Alleged Coordination at 3-4 (concluding that
the independent expenditure committee’s alleged meetings with Democratic Party
officials and the candidate’s attendance at events sponsored by the committee do
“not provide a connection” between those contacts and actual coordination).
CEW fixates on several provisions in the Standing Rules that it contends
demonstrate CORE’s lack of independence from the CRP and/or candidates. A
closer examination of these provisions, however, reveals that CEW’s argument
does not withstand scrutiny.
1. The CRP Chairman’s Limited Role Does Not Undermine
the Independence of CORE’s Expenditures
Standing Rule 3 provides that the CRP Chairman may remove CORE’s
Executive Director of a member of the Management Committee “for cause, such as
fraud or malfeasance, upon the recommendation of a majority of the remaining
-
8/21/2019 CRP Answer Brief
37/55
28
members of the management committee.” R. 79. As a preliminary matter, the
mere fact that an officer of a political party is affiliated with or involved in some
manner with an independent expenditure committee does not undermine the
latter’s independence. See MUR 5440 (In re New Democrat Network, et al.),
Factual & Legal Analysis at 12 (rejecting notion that Democratic National
Convention Chairman’s simultaneous position as “advisor” to PAC necessarily
rendered the PAC’s communications coordinated with the DNC); see also N.Y.
Progress and Protection PAC v. Walsh, 17 F. Supp. 3d 319, 322 (S.D.N.Y. 2014)
(the fact that “candidate's close friends, former employees, and other allies”
operated PAC did not affect its status as an independent committee, noting that
such “tenuous connections hardly rise to the level of coordination—and certainly
not to the level of quid pro quo corruption,” and reflects a reality “inherent in
politics”).
Further, the State Chairman’s role is narrow and highly circumscribed.
First, any removal must be a consequence of the director’s fraud, malfeasance or
other legal or ethical wrongdoing; Rule 3 plainly does not permit strategic
disagreements or political considerations to serve as a predicate for a director’s
termination. Also, the Chairman’s removal power is dependent upon the condition
precedent of the recommendation of the Management Committee, which is
-
8/21/2019 CRP Answer Brief
38/55
29
composed entirely of individuals who are not affiliated in any way with CRP. R.
80 [Rules 6 and 7]. CEW surmises that the provision in theory could be
manipulated to exert control over CORE’s operations and activities, but there is no
evidence that this has occurred or ever will occur. Mere conjectures constructed
on an attenuated chain of hypotheticals simply cannot sustain a finding that the
Chairman’s limited removal power renders CORE not independent of CRP.
2. Limits on the Scope of CORE’s Mission Are BothAppropriate and Legally Required
Second, CEW cites a clause in Rule 12 that provides that CORE’s activities
will “support and influence the election of Republican candidates for public office
or an office in a political organization at the state or local level ONLY.” R. 81.
CEW counters that “a truly independent committee would be free to spend money
on behalf of any state candidate regardless of partisan affiliation.” Opening Brief
at 16. Establishing general parameters on the types of candidates CORE will
support, however, is not a nefarious effort to confine its activities but rather is an
express requirement of Colorado law. Specifically, 8 CCR 1505-6, Rule 8.1.2
mandates that an independent expenditure committee must in its registration
“identify the types of candidates being supported or opposed, including party
affiliation and office(s) sought or public policy position(s).” Under CEW’s logic—
which appears to be that limiting the committee’s support only to Republican
-
8/21/2019 CRP Answer Brief
39/55
30
candidates vitiates its independence—any independent expenditure committee
complying with Rule 8.1.2 is no longer “independent” of the candidates and/or
parties it supports, an untenable conclusion.
Indeed, independent expenditure committees routinely cabin their missions
to promoting only candidates of a specific political party. For example, the
registration statement of the Colorado Hispanic Republicans IEC reports that the
organization will only “support Republicans for Colorado statewide office…who
either are Hispanic or take positions that are supportive of the Hispanic
community.”6 Likewise, the Senate Majority Fund limits its activities to
supporting “Republican candidates for State Senate,” while the Fair Share Action
independent expenditure committee has committed to support only “Democratic
candidates for Governor and other offices.” CEW proffers no legal basis
whatsoever for the notion that an independent expenditure committee’s exclusive
support of a specific political party or candidate renders its expenditures inherently
coordinated.
6 Independent expenditure committees’ registration statements are publicrecords published on the Secretary of State’s website, and accordingly may be
judicially noticed. See In re Interrogatory Propounded by Governor Roy Romeron House Bill 91S-1005, 814 P.2d 875, 880 (Colo. 1991) (“[T]his court may take
judicial notice of matters of public record and common knowledge.”).
-
8/21/2019 CRP Answer Brief
40/55
31
Further, CEW’s quoted excerpt tellingly omits the rest of the relevant
sentence, i.e., CORE will “support and influence the election of Republican
candidates for public office or an office in a political organization at the state or
local level ONLY and is prohibited from accepting any contributions or
making any expenditures that refer to any candidate for federal office, or are
designed or intended to influence the election of any candidate for federal
office” (emphasis added). Read in context, Rule 12 is aimed primarily at averting
the regulatory and accounting complications that would ensue from supporting
both federal and state candidates. See, e.g., 11 C.F.R. § 104.20 (imposing FEC
reporting requirements on persons making electioneering communications in
connection with federal elections).
In the same vein, CEW invokes Rule 18, which provides that CORE “will
abide by the requirement of pre-primary neutrality set forth” in the CRP bylaws.
This high-level description of CORE’s purpose is no more constricting than Rule
8.1.2’s requirement that every independent expenditure committee declare the
candidates and/or parties it will support, and in no way enervates CORE’s legal
and functional independence.
-
8/21/2019 CRP Answer Brief
41/55
32
3. The Standing Rules’ Cross-Reference to the CRP Bylaws Is
Irrelevant to the Independence of CORE’s Expenditures
Finally, Rule 19—which provides that the Standing Rules will yield to the
bylaws of the CRP and/or federal and state law in the event of a conflict—simply
delineates a hierarchy of authority for procedural and organizational issues. R. 82.
Nothing in that provision even indirectly affects CORE’s budgetary and
operational decisions and activities. CEW speculates that the CRP bylaws
someday could be manipulated to serve as a proxy for exerting control over CORE,
but there is no evidence whatsoever in the record that this has ever occurred or is
likely to happen.7
Ultimately, CEW’s arguments are founded not in any factual demonstration
that CRP and CORE have ever coordinated or will coordinate their expenditures.
Rather, CEW relies on a series of imagined hypotheticals positing how the
Standing Rules might be manipulated or abused at some point in the future to
undermine CORE’s autonomy. If the mere theoretical possibility of coordination
were sufficient to defeat an organization’s independent status, then no person or
entity would ever be secure in their First Amendment right to make unlimited
7 CRP’s ability to solicit funds for CORE from third party donors likewisedoes not implicate any facet of the regulatory definition of “coordination,” whichfocuses on the existence and nature of communications between an independentexpenditure committee and a political party or candidate. See 8 CCR 1505-6, Rule1.4.2.
-
8/21/2019 CRP Answer Brief
42/55
33
independent expenditures, and the legal concept of an independent expenditure
committee effectively becomes a nullity.
Furthermore, even if CORE or one of its vendors or directors ever does
coordinate with CRP, Colorado law already furnishes remedies for excessive or
unreported in-kind contributions; an individual or the Secretary of State may
initiate an enforcement proceeding and appropriate penalties will be assessed. See
Art. XXVIII, §§ 9, 10; see also Republican Party of N.M. v. King , 741 F.3d 1089,
1103 (10th Cir. 2013) (“If New Mexico believes that there is improper
coordination between a PAC and a state or local political party, then it could bring
an enforcement action. But the record…does not disclose any unlawful
coordination….”).
In short, the district court’s factual finding that CORE is independent of
CRP is amply supported by the record and should be affirmed.
V. CRP’s Right to Establish an Independent Expenditure Committee Is
Protected by the First Amendment
Application of the plain statutory text—in conjunction with the district
court’s well-supported finding that CORE is operationally independent of CRP—
compels the conclusion that CORE is an “independent expenditure committee”
entitled to accept unlimited contributions from any source, and avoids potential
discord between Colorado’s campaign finance laws and the federal Constitution.
-
8/21/2019 CRP Answer Brief
43/55
34
See People v. Jaso, 2014 COA 131, ¶ 10 (“We must construe statutes to avoid
constitutional conflicts if possible.”).
To the extent consideration of underlying federal constitutional issues
becomes necessary, however, federal courts have consistently held that all
independent expenditure organizations—including those established by and
maintaining ties with political parties—possess a First Amendment right to accept
contributions without restriction. See Republican Party of N.M. v. King , 741 F.3d
1089 (10th Cir. 2013).
A. Limits on Contributions to Independent Expenditure
Organizations Are Per Se Unconstitutional
If CEW is correct that Article XXVIII and/or the governing statutes
implicitly subject CORE to the contribution and source limits applicable to
political parties, such restrictions are not closely drawn to advance any important
governmental interest, and thus are violative of the First Amendment. Although
limits on amounts that can be contributed to a candidate or organization do not
directly constrain speech, they nevertheless constitute a substantive imposition on
associational liberty and thus warrant scrutiny that, while not strict, is still
“rigorous.” See Buckley v. Valeo, 424 U.S. 1, 29 (1976). As recently distilled by
the Supreme Court, the operative standard is whether a contribution limit advances
“a sufficiently important interest and employs means closely drawn to avoid
-
8/21/2019 CRP Answer Brief
44/55
35
unnecessary abridgement of associational freedoms.” McCutcheon v. Fed.
Election Comm’n, 134 S. Ct. 1434, 1444 (2014). The nexus tethering the
contribution restriction to the governmental objective it ostensibly serves must be
“not necessarily perfect, but reasonable….[and] narrowly tailored.” Id.
The Supreme Court “has identified only one legitimate governmental
interest for restricting campaign finances: preventing corruption or the appearance
of corruption.” Id. at 1450. Precisely because independent expenditures
necessarily are the product of the autonomous actions and decisions of third parties
unencumbered by candidate directives or input, the Supreme Court has declared
that “independent expenditures, including those made by corporations, do not give
rise to corruption or the appearance of corruption.” Citizens United , 558 U.S. at
357; see also Buckley, 424 U.S. at 47.
A necessary corollary of Citizens United is that contributions to
organizations that engage only in independent expenditures—such as CORE—
likewise intrinsically do not implicate any state interest in preventing actual or
apparent quid pro quo corruption. See King , 741 F.3d at 1097 (“As every other
circuit to consider the issue has recognized, quid pro quo corruption no longer
justifies restrictions on uncoordinated spending for independent expenditure-only
entities, and the absence of a corruption interest breaks any justification for
-
8/21/2019 CRP Answer Brief
45/55
36
restrictions on contributions for that purpose.”); SpeechNow.org v. Fed. Election
Comm’n, 599 F.3d 686, 694 (D.C. Cir. 2010) (“In light of the [Supreme] Court's
holding as a matter of law that independent expenditures do not corrupt or create
the appearance of quid pro quo corruption, contributions to groups that make only
independent expenditures also cannot corrupt or create the appearance of
corruption.”); Wis. Right to Life State Political Action Comm. v. Barland , 664 F.3d
139, 155 (7th Cir. 2011); Texans for Free Enter. v. Tex. Ethics Comm’n, 732 F.3d
535, 538 (5th Cir. 2013); Long Beach Area Chamber of Commerce v. City of Long
Beach, 603 F.3d 684, 698–99 (9th Cir. 2010).
B. CORE’s Limited Relationship with CRP Does Not Render CORE
A Political Party
As discussed supra Section II, CORE does not qualify as a “political party”
as defined as a regulatory concept in Article XXVIII, § 2(13) of the Colorado
Constitution. More fundamentally, however, CORE’s actual and functional
independence from the CRP carries significant constitutional implications, and
fatally undermines CEW’s reliance on Supreme Court precedents pertaining to
limits on contributions to political parties themselves.
CEW devotes considerable space to constructing and demolishing a straw
man argument concerning the constitutionality of contribution limits governing
political parties. In particular, CEW relies heavily on the Supreme Court’s
-
8/21/2019 CRP Answer Brief
46/55
37
decisions in Federal Election Comm’n v. Colorado Republican Federal Campaign
Comm., 533 U.S. 431 (2001) (“Colorado II ”) and McConnell v. Federal Election
Comm’n, 540 U.S. 93 (2003), which affirmed the constitutional validity of limits
on contributions to political parties and the federal ban on so-called “soft money”
(i.e., funds donated to political parties free of source and dollar limits that
ultimately were used to benefit candidates), respectively. Those cases have no
bearing on the question here for the simple yet pivotal reason that CORE is not a
political party. As described at length supra, CORE is an entity separate and
distinct from CRP, and possesses an organizational infrastructure carefully crafted
to forestall coordination and ensure that its strategic and operational decisions are
free from control or influence by candidates and political parties. See N. Carolina
Right to Life, Inc. v. Leake, 525 F.3d 274, 294 n.8 (4th Cir. 2008) (“North Carolina
also argues that NCRL–FIPE is not actually an independent expenditure committee
because it is ‘closely intertwined’ with NCRL and NCRL–PAC. However, while
NCRL–FIPE does share staff and facilities with its sister and parent entities, it is
independent as a matter of law.”).
CEW contends that the District of Columbia District Court’s decision in
Republican National Comm. v. Federal Election Comm’n, 698 F. Supp. 2d 150
(D.C.C. 2010), is “on point,” see Opening Brief at 21, but that case merely
-
8/21/2019 CRP Answer Brief
47/55
38
affirmed that McConnell countenances limits on amounts a political party itself
may accept as “soft money.” Similarly, CEW makes much of the fact that the
Court in Colorado II held that political parties may be subjected to contribution
limits irrespective of the particular purpose for which the funds are used. The
Court’s conclusion, however, merely reflects a pragmatic recognition that it may
be unfeasible to devise separate contribution limit schemes for a single, unitary
entity performing variegated functions depending on how any given donated dollar
is used. Such reasoning is inapposite here; CORE is structurally and legally
separate from the CRP and engages exclusively in independent expenditures;
unlike political parties, it does not conjoin independent activities with other
electioneering operations, such as candidate-coordinated expenditures or
contributions.
In this vein, the Tenth Circuit’s opinion in King forecloses CEW’s argument.
There, the court affirmed the preliminary enjoining of New Mexico’s statutory
contribution limit scheme as applied to political committees that made only
independent expenditures. Importantly, one of the plaintiffs was a PAC that was
“organized by” the Republican Party of New Mexico and whose treasurer
simultaneously served as chairman of a county party organization. Like CORE,
however, the PAC’s operations were conducted independently of the party. See
-
8/21/2019 CRP Answer Brief
48/55
39
741 F.3d at 1103. While acknowledging that soft money bans to political parties
themselves may remain constitutionally intact, the court found that “overlapping
leadership” with a political party did not the defeat the PAC’s status as an
independent entity or its concomitant right to accept unlimited contributions, given
the absence of any evidence of actual coordination between the party and the PAC.
The court added that “the mere fact that [PACs] are closely related to political
parties does not affect the analysis regarding their ability to make independent
expenditures.” Id. at 1102 & n.12.8
Notably, CORE’s Standing Rules implement an even more robust separation
from the party apparatus than was the case in King . Neither the Executive Director
nor any Management Committee is permitted to hold any office or position within
the CRP organization during his or her tenure (R. 80 [Rule 6]), and CORE
personnel are strictly prohibited from communicating non-public information with
the state party or any affiliate “at the county, district, or local level” concerning
8 The court suggested that the analysis may differ for PACs that are formallyaffiliated with or controlled by a political party, noting “that would raise a separateissue—coordination.” 741 F.3d at 1103. Read in context, this passage in King
makes clear that the operative question is not the structural intricacies of a PAC’sinternal organization or ties to a political party, but rather the existence of actualcoordination. Stated differently, whether a PAC is formally affiliated with a
political party or merely maintains unofficial ties carries no per se legalsignificance; the focal point is coordination. Where, as here, there is no evidenceof coordination between a political party and a related independent expenditurecommittee, the latter is entitled to accept unlimited contributions from any source.
-
8/21/2019 CRP Answer Brief
49/55
40
campaign strategy, plans, projects, activities, or needs. R. 81 [Rule 11]. If the
PAC in King was sufficiently independent to avail itself of the right to accept
unlimited contributions, then the same conclusion necessarily is compelled as to
CORE.
In short, King repudiated precisely the mode of argument CEW proffers
here, namely, conflating a legally and operationally independent entity with a
political party organization in an effort to subject it to contribution limits. As the
King court explained, a political party’s initial sponsorship of a political committee
and the existence of some ongoing ties does not defeat the latter’s independence;
the analytical lodestar is the existence or absence of coordination. When, as here, a
committee conducts its operations and activities independently of political parties
and candidates, it retains its First Amendment right to accept contributions free of
source and amount limitations.
C. Limitations on Contributions to Political Parties for the Sole
Purpose of Making Independent Expenditures Are Likely
Unconstitutional
As discussed above, limitations on contributions to independent expenditure
committees—even those that were established by and retain some ties to a political
parties—are per se unconstitutional. To the extent it is necessary to reach the
constitutional issue at all, the inquiry thus is at an end. It should be noted,
-
8/21/2019 CRP Answer Brief
50/55
41
however, that the Supreme Court has expressly held that political parties have the
same First Amendment prerogative to make unlimited independent expenditures.
See Colo. Republican Fed. Campaign Comm. v. Fed. Election Comm’n, 518 U.S.
604, 616 (1996) (“Colorado I ”) (“The independent expression of a political party’s
views is ‘core’ First Amendment activity no less than is the independent
expression of individuals, candidates, or other political committees.”).
In this vein, Citizens United and its progeny signal that even political parties
themselves possess a First Amendment right to accept contributions in unlimited
amounts for the specific purpose of making independent expenditures.9 Thus, even
a hypothetical congruence of identities between CRP and CORE would not affect
either entity’s First Amendment right to accept unlimited contributions for funds
that will be used exclusively for independent expenditures, i.e., expenditures that
are not coordinated with candidates. Indeed, while declining to issue a preliminary
injunction, the D.C. District Court held that a challenge to federal party
contribution limits as applied to funds allotted solely to political parties’
independent expenditures presented a “substantial” constitutional question, and
9 While Citizens United noted that party contribution limits as a general matterremain valid, see 558 U.S. at 361, it did not address the specific question ofrestrictions that attach to funds used only for independent expenditures.
-
8/21/2019 CRP Answer Brief
51/55
42
certified it to the en banc District of Columbia Circuit. See Rufer v. Fed. Election
Comm’n, --- F. Supp. 3d ---, 2014 WL 4076053, at *5 (D.C.C. Aug. 19, 2014).
CEW reasons that Citizens United did not implicate political parties and thus
is not relevant, but this facile dismissal of that case obscures its significant
repercussions for the constitutional framework governing campaign finance laws,
and is consistent with CEW’s larger effort to essentially turn back the clock and
revive regulatory burdens invalidated by Citizens United . To the contrary, the
reasoning of Citizens United severely undermines McConnell in at least two
substantial respects.
First, integral to McConnell ’s ratification of the soft money ban was its
premise that corruption extends far beyond direct quid pro quo dealings and
encompasses “ ‘undue influence on an officeholder’s judgment, and the appearance
of such influence.’” 540 U.S. at 150 (internal citations omitted). In the same vein,
the Court’s holding relied heavily on an evidentiary record illustrating extensive
collaboration between soft money donors, political parties and benefitted
candidates. The “crabbed view” of corruption as entailing only quid pro quo
transactions that the McConnell Court criticized, however, now counts a majority
of Justices among its adherents. Implicitly repudiating a key premise of
McConnell , Citizens United and subsequent decisions have asserted that
-
8/21/2019 CRP Answer Brief
52/55
43
“[s]pending large sums of money in connection with elections, but not in
connection with an effort to control the exercise of an officeholder’s official duties,
does not give rise to such quid pro quo corruption. Nor does the possibility that an
individual who spends large sums may garner ‘influence over or access to’ elected
officials or political parties.” McCutcheon v. Fed. Election Comm’n, 134 S. Ct.
1434, 1450-51 (2014) (internal citations omitted).
Further, the implementation of pervasive structural safeguards that ensures
the actual independence of party independent expenditures renders much of the
McConnell Court’s underlying reasoning and evidentiary record inapposite.
Notably, while concluding that it remained bound by McConnell , the RNC court
agreed that the evolution of the Court’s conception of corruption and the existence
of robust firewalls to segregate independent expenditure funds and forestall
coordination called McConnell ’s viability into question. See 698 F. Supp. 2d at
158, 160.
Second, Citizens United ’s renewed emphasis on the constitutional
imperative of permitting unfettered independent expenditures has impelled the
regulatory structure to accommodate organizations’ desire to couple independent
expenditure activity with direct candidate support. See, e.g., Carey v. Fed.
Election Comm’n, 791 F. Supp. 2d 121, 131 (D.D.C. 2011) (recognizing “hybrid”
-
8/21/2019 CRP Answer Brief
53/55
44
political committee and holding that it could accept unlimited contributions if such
funds were placed in a separate bank account designated only for independent
expenditures); Emily’s List v. Fed. Election Comm’n, 581 F.3d 1 (D.C. Cir. 2009)
(holding that political committee that made contributions to candidates has First
Amendment right to accept unlimited contributions, provided those funds are used
only for independent expenditures). Although the holdings of both Carey and
Emily’s List were limited to non-connected political committees and did not extend
to political parties, their reasoning encapsulates the emerging judicial consensus
that funds allotted to truly independent expenditure activities may be collected in
unlimited amounts from any source. Indeed, at least one federal district court has
expressly held that “to the extent they are making independent expenditures,
political parties may—just like other independent expenditure committees—solicit
more than $500 from each contributor. Moreover, they may accept contributions
from individuals and non-individuals.” Thalheimer v. City of San Diego, 2012 WL
177414, at *21 (S.D. Cal. Jan. 20, 2012).
Ultimately, however, it is unnecessary for the Court to venture onto this
evolving First Amendment terrain. See Bd. of Directors, Metro Wastewater
Reclamation Dist. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 105 P.3d 653,
656 (Colo. 2005) (“[W]e are guided by the rubric that the legislature intends a
-
8/21/2019 CRP Answer Brief
54/55
45
statute to be constitutional and we should construe it in a manner avoiding
constitutional infirmity, if possible.”). As discussed above, the plain text of Article
XXVIII and the Fair Campaign Practices Act permit CRP to establish an
independent expenditure committee that is entitled to accept unlimited
contributions from any source.
CONCLUSION
For the foregoing reasons, the district court’s grant of summary judgment in
CRP’s favor should be affirmed.
Dated June 10, 2015
Brownstein Hyatt Farber Schreck, LLP
/s/ Christopher O. Murray
Christopher O. Murray, #39340
Attorney for Plaintiff/Appellee Colorado
Republican Party
-
8/21/2019 CRP Answer Brief
55/55
CERTIFICATE OF SERVICE
I certify that on June 10, 2015, I electronically filed a true and correct copy
of the foregoing ANSWER BRIEF with the Clerk of Court via the Colorado
ICCES program which will send notification of such filing and service upon the
following counsel of record:
Colorado Ethics WatchLuisAngel ToroMargaret G. Perl1630 Welton Street, Suite 415Denver, CO 80202
Colorado Attorney General’s OfficeState Services SectionMatthew D. GroveSueanna Johnson1300 Broadway, 6th Floor
Denver, CO 80203Colorado Republican PartyHale Westfall, LLPAllan Lemont HalePeter Krunholz1600 Stout Street, Suite 500Denver, CO 80202
/s/ Paulette M. Chesson
Paulette M. Chesson, Paralegal