Amicus Brief: Colorado Ethics Watch v. Senate Majority Fund, LLC.

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At issue was the ongoing distinction between ads that “expressly advocate” the election or defeat of a candidate, and ads that simply discuss issues of interest to the electorate.  Courts have sometimes struggled to find the line between these two categories, despite substantial guidance from the U.S. Supreme Court. But as Colorado law puts significant burdens on those who “expressly advocate,” including a $500 contribution limit, the line is vitally important.

The Court ruled that “express advocacy” included only advertisements that “explicitly advocate[] the election or defeat of a candidate” through specific words such as “vote for,” “elect,” “support” and the like. The Court declined to adopt a less-focused standard that would have allowed Colorado to treat any advertisement that was, in its view, the “functional equivalent” of such ads as express advocacy.

The case represents a win for the First Amendment, and for the principle – most famously articulated in Buckley v. Valeo almost 40 years ago – that the government must give clear warning of what kinds of speech may be regulated. Colorado speakers may now rely on the legal principle that, so long as their discussion of politicians and issues does not include the so-called “magic words” or their synonyms, they may speak without the burdens of heightened reporting requirements and limited contributions.

Under Colorado law, an environmental group that wants to organize a letter-writing campaign may now do so without turning into a campaign committee – and it will know where that line is. Political speakers that want to discuss the pressing issues of our time may now do so, without the threat of an amorphous standard, and the expensive litigation that can spawn, hanging over their heads.

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