Court of Appeals No. 14CA1945 City and County of Denver District Court No. 14CV31851 Honorable Robert L. McGahey, Judge
Brownstein Hyatt Farber Schreck, LLP, Christopher O. Murray, Denver, Colorado, for Plaintiff-Appellee
Luis Toro, Margaret Perl, Denver, Colorado, for Intervenor-Appellant
Lewis, Bess, Williams & Weese P.C., Steven K. Imig, Teresa M. Abel, Denver, Colorado, for Amicus Curiae The Campaign Legal Center
Dailey and Ashby, JJ., concur
¶ 1 "The First Amendment '"has its fullest and most urgent application" to speech uttered during a campaign for political office.'" Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 339 (2010) (citation omitted).
¶ 2 We are asked in this appeal to determine whether an independent expenditure committee established by a political party is subject to source and amount contribution limits under Colorado Constitution article XXVIII (the Campaign and Political Finance Amendment) and sections 1-45-101 to -118, C.R.S. 2015 (the Fair Campaign Practices Act).
¶ 3 Intervenor, Colorado Ethics Watch (Ethics Watch), appeals the district court's grant of summary judgment in favor of plaintiff, the Colorado Republican Party (the Party), concluding the Party could establish an independent expenditure committee which was not subject to the source and contribution limits that restrict political parties under article XXVIII, section 3(3). We affirm.
¶ 4 The Party is a Colorado unincorporated nonprofit association with its principal offices in Greenwood Village, Colorado. It is a membership organization comprised of officers and other representatives from each of the sixty-four affiliated Republican county political party committees and Republican elected officials at the state and district levels. The Party is a major political party under Colorado law. See § 1-1-104(22), C.R.S. 2015; §§ 1-3-100.3 to -108, C.R.S. 2015.
¶ 5 Ethics Watch is the registered trade name of Citizens for Responsibility and Ethics in Washington, a nonprofit organization authorized to conduct business in Colorado. Ethics Watch has filed and litigated several campaign finance complaints under the private-party enforcement system established in article XXVIII, section 9. See, e.g., Colo. Ethics Watch v. Senate Majority Fund, LLC, 2012 CO 12; Colo. Ethics Watch v. Gessler, 2013 COA 172M.
¶ 6 In January 2010, the United States Supreme Court announced Citizens United, which held that a federal law banning corporate and labor union independent expenditures violated the First Amendment and was unconstitutional. 558 U.S. at 365. On March 22, 2010, the Colorado Supreme Court announced In re Interrogatories Propounded by Governor Bill Ritter, Jr., 227 P.3d 892 (2010), concluding that article XXVIII, sections 3(4) and 6(2) were unconstitutional in light of Citizens United. Id. at 894.
¶ 7 In response to Citizens United, the General Assembly enacted Senate Bill 10-203, now codified in the Fair Campaign Practices Act, in May 2010. Sections 1-45-103(11.5) and -107.5, C.R.S. 2015, allow for the creation of independent expenditure committees (sometimes referred to in the media as "super PACs") and establish separate expenditure limits and disclosure requirements for those committees.
¶ 8 In November 2013, the Party filed a petition with the Colorado Secretary of State seeking a declaration that a political party may form an independent expenditure committee for the purpose of making independent expenditures and may raise funds through donations and otherwise in any amount from any permissible source to fund that committee. On February 6, 2014, the Secretary declined to issue declaratory relief and recommended the Party seek declaratory relief in state or federal court. Despite declining to issue such relief, the Secretary did offer an advisory opinion that "a political party may form an independent expenditure committee . . . for the purposes of making independent expenditures and may raise funds in any amount from any permissible source." Office of the Colorado Secretary of State, In the Matter of the Colorado Republican Party's Petition for Declaratory Order (Feb. 6, 2014).
¶ 9 On May 7, 2014, the Party filed papers with the Secretary of State establishing and registering the Colorado Republican Party Independent Expenditure Committee (the IEC). The IEC adopted a set of Standing Rules that govern the activities of the IEC, and the IEC is managed by an executive director and advised by a management committee appointed by the Party's State Chairman. On May 8, the Party filed the current lawsuit in the City and County of Denver District Court suing the Secretary of State and seeking declaratory relief that it is authorized under existing law to sponsor, maintain, and operate an independent expenditure committee that may raise funds in any amount from any source permissible under Colorado law. On June 18, the district court granted Ethics Watch's motion to intervene in the lawsuit.
¶ 10 The Party filed a motion for summary judgment arguing that the current constitutional and statutory scheme allows it to create an independent expenditure committee and that such a committee is not subject to any contribution limits applicable to political parties under the Campaign and Political Finance Amendment and the Fair Campaign Practices Act. The Party further argued this conclusion is in concert with federal precedent on independent expenditures by political parties and that the Standing Rules of the IEC protect against any coordination between the IEC and the Party or a candidate.
¶ 11 Ultimately, the district court agreed. In a well-reasoned order, the court concluded "[b]ecause [the Party] is a person in Colorado, it may establish the IEC, so long as the IEC is independent."
The regulations defining coordination provide that expenditures are deemed to have been coordinated with a candidate committee or political party if "[a] person makes an expenditure or engages in spending at the request, suggestion, or direction of, in consultation with, or under the control of that candidate committee or political party." 8 Colo. Code Regs. § 1505-6, Rule 1.4. [Ethics Watch] implicitly concedes that the Standing Rules prevent a candidate committee, the Party, or any of the Party's agents or officers from making a "request" for, or "suggestion" of, an expenditure by the IEC. Similarly, [Ethics Watch] also apparently concedes that the Standing Rules preclude the IEC from making any expenditure "at the direction of" or "in consultation with" a candidate committee, the Party, or any of the Party's agents or officers.
¶ 12 Therefore, because Ethics Watch "believes, but has offered no evidence that the IEC will, in the future, not abide by its own rules, " its position could not survive a motion for summary judgment.
II.Standard of Review
¶ 13 "This case presents a question of constitutional and statutory interpretation, which we review de novo." Colo. Ethics Watch v. Clear the Bench Colo., 2012 COA 42, ¶ 9. We also review de novo a district court's grant of summary judgment. Oasis Legal Fin. Grp., LLC v. Coffman, 2015 CO 63, ¶ 30.
III. Law and Analysis
¶ 14 At its core, Ethics Watch contends the district court erred when it interpreted the Fair Campaign Practices Act to allow a political party to establish an independent expenditure committee not subject to the source and contribution limits set forth in article XXVIII. This contention requires us to interpret a variety of constitutional, statutory, and regulatory provisions, as well as analyze evolving United States Supreme Court precedent on the First Amendment and campaign finance. In the end, we conclude that the current legislative scheme and pertinent case law provides no barrier to the Party's establishment of the IEC.
¶ 15 The rules of construction are essentially the same for constitutional and statutory provisions. Clear the Bench, ¶ 9; see Huber v. Colo. Mining Ass'n, 264 P.3d 884, 889 (Colo. 2011) ("We use the general rules of statutory construction in construing citizen-initiated measures."). "We begin with the plain language of a provision, giving the words their ordinary meaning." Clear the Bench, ¶ 10. "'We construe the language in a manner that gives effect to every word, ' considering the language in the context of the statute or amendment as a whole." Id. (quoting Romanoff v. State Comm'n on Judicial Performance, 126 P.3d 182, 188 (Colo. 2006)). "Where a constitutional provision and a statute pertain to the same subject matter, we construe them in harmony." Id. "Our task is to ascertain and give effect to the General Assembly's intent." Nowak v. Suthers, 2014 CO 14, ¶ 20. "In construing a constitutional amendment, our goal is to determine and give effect to the will of the people in ...