Challenge to Colorado's Restrictions on Speech About Ballot Initiatives

Jacob Sullum | September 23, 2009

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. 

Comments

Tomcat1066|9.23.09 @ 12:58PM|#

"...but today's campaign finance laws are being used to harass nonprofits into silence; they're being used to stifle American political debate."


In all fairness though, they're being used to harass just about everyone into silence if given enough time.

Joe M|9.23.09 @ 1:00PM|#

Man, Institute for Justice is the best. I need to write them a check.

Hottie16|9.23.09 @ 1:15PM|#

@Tomcat1066

a/s/l?

creech|9.23.09 @ 1:23PM|#

Sue about ten lefty-leaning groups who do the same and the law will be changed pdq.

Tomcat1066|9.23.09 @ 1:29PM|#

@Hottie16

to damn old for a/s/l checks

|9.23.09 @ 1:31PM|#

This will be interesting. If SCOTUS says gun regulation is not an infringement of your 2nd amendment right, how can regulation of speech be an infringement.

Yeah, I'm aware it says Congress shall make no law. But for some reason it's unlawful for me to yell "fire" in a movie theater. Just sayin.

Cliché Bandit|9.23.09 @ 1:35PM|#

I remember the campaign...I helped extensively. It was the fight against Referendum C and D. C was a 5 year "brak" from TABOR (that they said was NOT a tax increase...if the government keeps more of my money it is a taxx increase). And D was a loan to be taken out secured by the revenue from C. Basically the most bat shit insane fiscal policy ever. Especially when you have such a beautiful piece of legislation as TABOR in place. We lost on C and it passed but D was defeated. The most intense campaign I have ever seen. The worst part was that the "Republican" governor (Bill "I hate guns" Owens) and the avowed socialist speaker of the house Andrew "Lenin was a great man" Romanoff filmed and ad together pushing for Ref C and D. Made me so sick I wanted to puke.

II is a great group of people, very small l libertarian. They also have a few big Ls on the LP state party board. I hope they win this so that reporting here will be easier. BCRA is actually easier to comply with than the State version which is the FCPA (Fair Campaign Practices Act).

I'd rather be a hammer than a nail

Cliché Bandit|9.23.09 @ 1:36PM|#

"brak" is supposed to be "break"

FAIL!

|9.23.09 @ 2:12PM|#

You know what? Citing to Brak is never a failure

Rich|9.23.09 @ 2:22PM|#

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.

I smell some "hoisted by their own pitard" potential.

|9.23.09 @ 2:37PM|#

That's so petarded.

Rich|9.23.09 @ 3:13PM|#

Oops. Thanks, PL. "It pays to increase your word power."

|9.23.09 @ 3:17PM|#

Rich,

I wasn't really calling out your error so much as I was leaping on the opportunity to say "petarded."