Unconstitutional to Require Registration and Disclosure for Any Committee Spending Over $200 to Support/Oppose a Ballot Measure

So held the Tenth Circuit on Tuesday in Sampson v. Buescher:

Colorado law requires that any group of two or more persons that has accepted or made contributions or expenditures exceeding $200 to support or oppose a ballot issue must register as an issue committee and report the names and addresses of anyone who contributes $20 or more. Plaintiffs are residents of Parker North, a neighborhood of about 300 homes in an unincorporated part of Douglas County, Colorado, who opposed the annexation of their neighborhood into the Town of Parker. Plaintiffs had raised less than $1,000 in monetary and in-kind contributions for their cause when supporters of annexation challenged the failure of the opponents to register as an issue committee.

Plaintiffs contend that Colorado reporting requirements unconstitutionally burden their First Amendment right to association. We agree that Colorado law, as applied to Plaintiffs, has violated their constitutional freedom of association. There is virtually no proper governmental interest in imposing disclosure requirements on ballot-initiative committees that raise and expend so little money, and that limited interest cannot justify the burden that those requirements impose on such a committee….

In our view, the burden on Plaintiffs’ right to association imposed by Colorado’s registration and reporting requirements cannot be justified by a public interest in disclosure. The burdens are substantial. The average citizen cannot be expected to master on his or her own the many campaign financial-disclosure requirements set forth in Colorado’s constitution, the Campaign Act, and the Secretary of State’s Rules Concerning Campaign and Political Finance. Even if those rules that apply to issue committees may be few, one would have to sift through them all to determine which apply. As the Supreme Court recently observed in rejecting a proposed intricate interpretation of the term electioneering communication in 2 U.S.C. § 441b: “Prolix laws chill speech for the same reason that vague laws chill speech: People of common intelligence must necessarily guess at the law’s meaning and differ as to its application.” Citizens United, 130 S. Ct. at 889. The Secretary of State’s website acknowledged that the State’s campaign finance laws and rules “are complex,” and the official who oversaw the Secretary of State’s campaign finance department testified that she advises those with difficult questions to retain an attorney. And even attorneys are not error-free. Recall that the complaint filed by attorney Hawkins with the Secretary of State incorrectly alleged that persons who had obtained campaign materials from Plaintiffs could be subject to sanctions under Colorado law. Moreover, failure to comply with the rules can be expensive; failure to meet a recording deadline can cost $50 a day. As Plaintiff Becky Cornwell stated in her affidavit:

I found the [campaign] laws difficult to understand and I constantly worried about being sued for even the smallest error. Particular points — like non-monetary contributions — were counterintuitive; the forms were hard to follow; the website was often slow and had technical glitches; and getting questions answered often took several days and sometimes did not yield correct answers or even any answer at all.

It is no surprise that Plaintiffs felt the need to hire counsel upon receiving the complaint against them filed with the Secretary of State. One would expect, as was the case here,5 that an attorney’s fee would be comparable to, if not exceed, the $782.02 that had been contributed by that time to the anti-annexation effort. This is a substantial burden. See Citizens United, 130 S. Ct. at 889 (“The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day.”). And added to that burden was the burden on Plaintiffs of time, energy, and money to review the law themselves and to take off work to attend the hearing on the complaint against them.

Congratulations to Steve Simpson and Chip Mellor at the Institute for Justice on their victory.