Challenge to Colorado's Restrictions on Speech About Ballot Initiatives

Next week the U.S. Supreme Court is expected to announce whether it will hear a First Amendment challenge to a Colorado law that requires groups to register with the government and reveal their donors if they take positions on ballot measures. The law applies not just to groups that are established to support or oppose initiatives but also to any organization that has "a major purpose" of doing so. In this case, the Independence Institute, a state think tank, created a website, published op-ed pieces, and sponsored radio ads opposing two 2005 initiatives aimed at weakening restrictions on taxes. The Institute for Justice, which is representing the Independence Institute, notes that "more than 500 nonprofits…likewise weighed in on the measures," almost all of them on the other side. The Independence Institute "was the only nonprofit dragged into court to defend against charges—filed by a member of the campaign supporting the referenda—that it engaged in political speech without first registering with the government."

I.J. argues that the reach of Colorado's registration requirement exceeds what the Supreme Court has allowed, since it includes groups that are not mainly involved in election campaigns. It also argues that the donor disclosure requirement violates "the right to engage in anonymous speech and association," since in initiative campaigns there is no danger of quid pro quo corruption, the rationale for disclosure in the context of election campaigns for public officials. These arguments were rejected by the Colorado District Court and the Colorado Court of Appeals; the Colorado Supreme Court declined to hear the Independence Institute's appeal. "America should be a place of robust political debate," says I.J. lawyer Bill Maurer, "and nonprofit groups should be an important part of that discussion, but today's campaign finance laws are being used to harass nonprofits into silence; they're being used to stifle American political debate."

The petition for review by the U.S. Supreme Court is here (PDF). I mentioned the case in my August column about the chilling effect of disclosure requirements.

Correction: I.J.'s Lisa Knepper informs me that the group's press release erred in saying that the Supreme Court will decide next week whether to hear this case. The case has not been scheduled for conference yet.