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Independence Institute v. Gessler

United States District Court, D. Colorado

October 22, 2014

INDEPENDENCE INSTITUTE, a Colorado nonprofit corporation, Plaintiff,
SCOTT GESSLER, in his official capacity as Colorado Secretary of State, Defendant

For Independence Institute, a Colorado nonprofit corporation, Plaintiff: John Stuart Zakhem, Shayne M. Madsen, Jackson Kelly, PLLC-Denver, Denver, CO; Tyler Leandro Martinez, Allen Joseph Dickerson, Center for Competitive Politics, Alexandria, VA.

For Scott Gessler, in his official capacity as Colorado Secretary of State, Defendant: Matthew David Grove, LEAD ATTORNEY, Frederick Richard Yarger, Sueanna Park Johnson, Colorado Attorney General's Office, Denver, CO.

For The Campaign Legal Center, Democracy 21, Public Citizen, Inc., Amici: Steven K. Imig, Lewis Bess Williams & Weese P.C., Denver, CO.

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R. Brooke Jackson, United States District Judge.

This case concerns a television advertisement that the Independence Institute wishes to broadcast before the upcoming gubernatorial election. The Institute stipulates that its ad is an " electioneering communication" under Colorado law and, as such, the Institute must comply with certain reporting and disclosure requirements. However, because the ad constitutes " genuine issue advocacy" as opposed to advocacy for or against any candidate, the Institute claims that application of these requirements would be unconstitutional. The Secretary of State, who administers and enforces Colorado's election laws, stipulates that the ad can be classified as genuine issue advocacy but maintains that application of the reporting and disclosure requirements is constitutional. I agree with the Secretary.


The advertisement. The Independence Institute is a Colorado nonprofit corporation organized under Section 501(c)(3) of the Internal Revenue Code that conducts research and educates the public on various aspects of public policy, including taxation, education policy, healthcare, and environmental issues. It wishes to run a television advertisement prior to the November 4, 2014 general election that will urge viewers to call Governor John Hickenlooper and ask him to support an audit of Colorado's Health Benefit Exchange. The 30-second ad, which would be distributed over local broadcast television in Colorado, would read as follows:

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Doctors recommend a regular

Video of doctor and mother with child.

check up to ensure good health.

Yet thousands of Coloradoans

Headlines of lost insurance stories.

lost their health insurance due

to the new federal law.

Many had to use the state's

Denver Post headline " Colorado health

government-run health exchange

exchange staff propose $13M fee on all

to find new insurance.

with insurance."

Now there's talk of a new $13

million fee on your insurance.

It's time for a check up for

Colorado's health care exchange.

Call Governor Hickenlooper and

Call Gov. Hickenlooper at (303) 866-2471.

tell him to support legislation

Tell him to support an audit of the health

to audit the state's health care

care exchange.



Paid for by The Independence Institute,


Jon Caldara, President. 303-279-6536.


Colorado law. In 2002 Colorado's voters approved what has been incorporated as Article XXVIII of the Constitution of the State of Colorado. Section 1, entitled " Purposes and findings," states:

The people of the state of Colorado hereby find and declare that large campaign contributions to political candidates create the potential for corruption and the appearance of corruption; that large campaign contributions made to influence election outcomes allow wealthy individuals, corporations, and special interest groups to exercise a disproportionate level of influence over the political process; that the rising costs of campaigning for political office prevent qualified citizens from running for political office; that because of the use of early voting in Colorado timely notice of independent expenditures is essential for informing the electorate; that in recent years the advent of significant spending on electioneering communications, as defined herein, has frustrated the purpose of existing campaign finance requirements; that independent research has demonstrated that the vast majority of televised electioneering communications goes beyond issue discussion to express electoral advocacy; that political contributions from corporate treasuries are not an indication of popular support for the corporation's political ideas and can unfairly influence the outcome of Colorado elections; and that the interests of the public are best served by limiting campaign contributions, establishing campaign spending limits, providing for full and timely disclosure of campaign contributions, independent expenditures, and funding of electioneering communications, and strong enforcement of campaign finance requirements.

Among other things, Article XXVIII and Colorado's Fair Campaign Practices Act, C.R.S. § 1-45-101 et seq. place certain restrictions on " electioneering communications." An electioneering communication is

any communication broadcasted by television or radio, printed in a newspaper or on a billboard, directly mailed or delivered by hand to personal residences or otherwise distributed that:

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(I) Unambiguously refers to any candidate; and
(II) Is broadcasted, printed, mailed, delivered, or distributed within thirty days before a primary election or sixty days before a general election; and
(III) Is broadcasted to, printed in a newspaper distributed to, mailed to, delivered by hand to, or otherwise distributed to an audience that includes members of the electorate for such public office.

Colo. Const. art. XXVIII, § 2(7)(a); C.R.S. § 1-45-103(9).

The term " electioneering communication" does not include:

(I) Any news articles, editorial endorsements, opinion or commentary writings, or letters to the editor printed in a newspaper, magazine or other periodical not owned or ...

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