ALEXANDRIA, Va. – In an order received today, the Colorado Supreme Court agreed to a US District Court judge’s request to “provide clear guidance… as to the scope and meaning” of four unclear provisions of Colorado’s campaign finance laws that are the subject of litigation under the First Amendment to the US Constitution.
The request was made by Senior Judge John L. Kane of the United States Court for the District of Colorado in connection with a case brought by the Center for Competitive Politics (CCP) on behalf of the Coalition for Secular Government (CSG). Allen Dickerson, CCP’s Legal Director, said today he is “pleased that Colorado’s highest court will provide a definitive interpretation of key provisions in Colorado’s campaign finance laws and address the important constitutional issues raised in this case.”
The lawsuit challenges whether Colorado can force small educational groups to register with the state before expressing an opinion on or publishing an analysis of a ballot question. Because of vague state laws, confusion as to what constitutes political speech and what is covered under a press exemption, and a refusal by the state to abide by a federal court order, CSG has found it nearly impossible to carry out the activities of a small non-profit group without fear of running afoul of complex Colorado campaign finance laws.
Judge Kane asked the Colorado high court for the interpretation because the “lawsuit raises First Amendment challenges to several provisions of Colorado campaign finance law that remain undefined by the Colorado Constitution, Article XXVIII’s implementing legislation, or case law from Colorado courts.”
Judge Kane certified four questions, which the Colorado Supreme Court has now agreed to answer. The questions are as follows:
1. Is the policy paper published by the Coalition for Secular Government (CSG) in 2010 “express advocacy” under Art. XXVIII, § 2(8)(a) of the Colorado Constitution?
2. If the policy paper is express advocacy, does it qualify for the press exemption found at Art. XXVIII, § 2(8)(b)?
3. Is the policy paper a “written or broadcast communication” under § 1-45- 103(12)(b)(II)(B), C.R.S.? If not, did it become a “written or broadcast communication” when it was posted to CSG’s blog or Facebook page?
4. In light of Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010), what is the monetary trigger for Issue Committee status under Art. XXVIII § 2(10)(a)(II) of the Colorado Constitution?
A copy of the court order is available here. The case, over which Judge Kane presides, is Coalition for Secular Government v. Gessler, No. 12-cv-1708. The plaintiff’s brief to the Colorado Supreme Court is due December 3, 2012.