DISTRICT COURT, CITY AND COUNTY OF

DENVER, COLORADO
Court Address: 1437 Bannock Street
Denver, Colorado 80202


Plaintiff: COLORADO REPUBLICAN PARTY

v.

Defendants: SCOTT GESSLER, in his capacity as
Colorado Secretary of State

and

Intervenor Defendant: COLORADO ETHICS
WATCH

Attorneys for Intervenor Defendant Colorado
Ethics Watch:
Luis Toro, #22093
Margaret Perl, #43106
Colorado Ethics Watch
1630 Welton Street, Suite 415
Denver, Colorado 80202
Telephone: (303) 626-2100
Fax: (303) 626-2101
E-mail: ltoro@coloradoforethics.org
pperl@coloradoforethics.org

















COURT USE ONLY

Case Number:2014CV031851



Division/Courtroom: 409
BRIEF OF INTERVENOR DEFENDANT IN RESPONSE TO
PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

Intervenor Defendant Colorado Ethics Watch (Ethics Watch) by their undersigned
attorneys, respectfully submits this brief in response to Plaintiff Colorado Republican Party
(CRP)s Motion for Summary Judgment.
I. INTRODUCTION
Major political parties enjoy a privileged position in Colorado election law because
candidates can access the ballot through the political party structure with great ease compared to
unaffiliated candidates. In order to protect against the corrupting influence of political money, a
2

state may restrict contributions to political parties, upon which a candidates access to the ballot
depends including by limiting the amount any one person may contribute to a political party
and by prohibiting direct corporate or labor union contributions to political parties. A long line of
cases affirms that these political party contribution limits and source restrictions do not violate
the First Amendment.
Though cast in terms of the right to make independent expenditures, the CRPs complaint
in substance asks the Court to permit it to use the device of an independent expenditure
committee (IEC or Super-PAC
1
) to nullify the political party contribution limits established
in the Colorado Constitution. Because Colorados Super-PAC statute, C.R.S. 1-45-107.5, does
not purport to override contribution limits or the corporate/labor union contribution ban for
political parties, and because CRP is not otherwise entitled to evade the contribution limits and
source prohibitions established in the Colorado Constitution, the Court should summarily enter a
declaratory judgment that contributions to the CRP Super-PAC must count against the
contribution limits applicable to the CRP and must comply with the Colorado Constitutions
source prohibitions applicable to political parties.
II. RESPONSE TO CRPS STATEMENT OF UNDISPUTED FACTS
1.-7. Undisputed.
8. Ethics Watch stipulates to all but the final sentence of Paragraph 8.

1
The term Super-PAC was invented by a political reporter to distinguish independent
expenditure-only political action committees, post-Citizens United entities that may raise
unlimited money but may not coordinate with or contribute to candidates, from traditional
political action committees that may contribute directly to candidates but are subject to
contribution limits. Dave Levinthal, How Super PACs Got Their Name, Politico, January 10,
2012, posted at http://www.politico.com/news/stories/0112/71285.html (accessed August 19,
2014). In Colorado law, traditional PACs are called political committees, see Colo. Const. art.
XXVIII, 2(12) and Super-PACs are called independent expenditure committees, see C.R.S.
1-45-103(11.5).
3

9.-11. Undisputed.
12. Ethics Watch stipulates that Exhibit B is a true copy of the Standing Rules that
govern the CRPs Super-PAC.
III. ADDITIONAL MATERIAL UNDISPUTED FACTS
1. On or about August 20, 2012, CRP formed and registered a Super-PAC under the
name of the Colorado Republican Party Independent Expenditure Committee (Former Super-
PAC). The Former Super-PAC reported $85,847.65 in contributions and the same amount of
expenditures to the Secretary of State. CRP raised funds for the Former Super-PAC in
compliance with the contribution limits and source provisions under the campaign finance limits
applicable to a state political party committee. CRP filed the Former Super-PACs final
campaign finance report and terminated the Former Super-PAC on or about February 7, 2014.
Complaint at 13; Intervenors Answer at 13.
2. Since the current CRP Super-PAC was registered in May 2014, it has received
several contributions from individuals in excess of the contribution limits for political parties
established in Article XXVIII and at least one contribution from a corporation as reported on
filings with the Secretary of States office, a copy of which is attached as Exhibit 1. CRP Brief
at 10.
IV. THE SUMMARY JUDGMENT STANDARD IN A DECLARATORY ACTION
As a general rule, summary judgment is warranted only when the moving party
demonstrates both the absence of disputed issues of material fact and that it is entitled to
judgment as a matter of law. C.R.C.P. 56(c). In a declaratory judgment action, however, a
summary judgment may be entered against the moving party, or providing relief different than
that asked for by the moving party, so long as there are no disputed issues of material fact. See
4

C.R.C.P. 54(d) (Except as to a party against whom a judgment is entered by default, every final
judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if
the party has not demanded such relief in his pleadings); Saxe v. Bd. of Trustees of Metro. State
College of Denver, 179 P.3d 67, 73 (Colo. App. 2007) (declaratory judgment may be either
affirmative or negative in form and effect. The better practice is to enter a declaratory judgment
even if it is adverse to the plaintiff seeking such judgment) (citations omitted). Thus, in the
absence of material factual disputes, the Court may enter summary judgment declaring that
CRPs SuperPAC is subject to political party contribution limits, without the formality of a
cross-motion for summary judgment or an additional reply brief from Ethics Watch. See also
C.R.C.P. 1.
V. ARGUMENT
After a series of U.S. Supreme Court cases removing restrictions on outside actors
participating in political campaigns at the federal and state level, CRP feels constrained by the
constitutional and statutory limits on political party contributions which have withstood similar
court challenges. Instead of seeking a legislative solution to change the constitution and statute in
order to adopt the same rules of the game as other 527s and independent expenditure
committees (CRP Brief at 20), CRP presents this court with a selective reading of federal
campaign finance cases in support of a claimed First Amendment right to unlimited contributions
that would trump decades of settled law. CRP must comply with Colorado law which does not
limit the amount of expenditures made by the CRP Super-PAC but requires its spending be
made with money raised subject to the political party contribution limits and prohibitions. Such
contribution limits and prohibitions have been repeatedly upheld in the face of constitutional
challenges.
5

A. The Undisputed Facts Show That the Super-PAC is Controlled By The CRP.
CRP explicitly seeks a declaratory order that that it may sponsor, maintain, and operate
the Super-PAC in question. (CRP Brief at 21). Regardless of whether the Court agrees with CRP
that the definition of political party in Article XXVIII of the Colorado Constitution might not
reach a truly independent Super-PAC, the undisputed facts show that this committee is a
component of CRP and its activities are legally considered coordinated with CRP. Therefore,
all contribution limitations and source prohibitions applicable to political parties are binding
upon the CRP Super-PAC.
Under Colorado campaign finance law expenditures or spending are coordinated with a
political party if a person makes those expenditures under the control of thatpolitical party.
Rules Concerning Campaign and Political Finance Rule 1.4, 8 C.C.R. 1505-6 (2012).
Expenditures that are coordinated with a political party are considered a contribution to the
political party, subject to all limits and prohibitions on party contributions. See Colo. Const. art.
XXVIII 5(3); see also Republican Party of N.M. v. King, 741 F.3d 1089, 1103 (10th Cir. 2013)
(if a group was indirectly controlled by a political party and considered coordinated then
contributions would be subject to political party limits). The undisputed facts in this case show
that the CRP Super-PAC is under the control of the political party and part of its state-party
apparatus.
According to the undisputed facts, the CRP Super-PAC is organized as a standing
committee and separate segregated fund of CRP under the appointment authority of State
Chairman Ryan Call. Chairman Call appoints the Executive Director and management
committee members, names replacements when a members term expires, and can remove
members certain to subject provisions. Chairman Call and other agents and representatives of
6

CRP will be soliciting contributions to the CRP Super-PAC. The CRP Super-PAC must abide by
the CRP Bylaws, including the pre-primary neutrality provisions, and any rules adopted by the
CRP Super-PAC that are in conflict the CRP Bylaws or any rule of the Republican National
Committee are deemed inoperative. The filings for the CRP Super-PAC list the Colorado
Republican Central Committee as its parent corporation.
The CRP explains that the rules of the CRP Super-PAC are designed to avoid
coordination of expenditures with any candidates, thus ensuring that the IECs expenditures are
truly independent. (CRP Brief at 2). While the rules might succeed in keeping the CRP Super-
PAC independent from candidates, they do not render it independent from the party the crucial
question when determining if political party contribution limits and prohibitions apply.
Our campaign finance system requires disclosure by independent political actors, outside
of any political party, that raise and spend money to influence Colorado state elections. (CRP
Brief at 18-19). These groups may have a partisan bent, but they are not directed by the political
parties. CRP admits that it has created this Super-PAC so that the facts, argument, and
perspective of the Colorado Republican Party can be expressed. (CRP Brief at 20). Chairman
Call and CRP are free to support and fundraise for any number of independent expenditure
committees that are sympathetic and compatible with the CRP view and Republican candidates.
But that is not enough to satisfy them. The only reason this CRP Super-PAC was created is so
that CRP may control it. That strategy is legal under Colorado campaign finance law, but only so
long as the connected Super-PAC under control of the CRP complies with all contribution limits
and prohibitions in the Colorado Constitution. This is exactly how the CRPs Former Super-
PAC operated.
7

B. Colorados Campaign Finance Constitutional Provisions Restrict the
Amount and Source of Contributions that may be received by any Political Party
including CRP.
In 2002, Colorado voters passed Amendment 27, which became Article XXVIII of the
Colorado Constitution. Article XXVIII creates a comprehensive campaign and political finance
system, including disclosure requirements, contribution limits and source restrictions for
candidates, political parties, political committees, issue committees, and small donor committees.
See Colo. Const. art. XXVIII, 2. Section 3 imposes both contribution limits and source
prohibitions on political parties which differ from the limits placed on other types of political
actors. A political party may receive no more than $3,400 per calendar year from any person,
candidate or political committee, and not more than $17,075 from a small donor committees (as
defined in Colo. Const. art. XXVIII, 2(14).
2
These contribution limits are higher than the limits
on political committees, small donor committees, and candidates. Political parties (and
candidates) are absolutely prohibited from accepting contributions from corporations and labor
unions. See Colo. Const. art. XXVIII, 3(4)(a).
3

Because the CRP Super-PAC is controlled by, and coordinated with, the CRP, that
account is subject to these political party contribution limitations and source prohibitions in
Article XXVIII. It is nonsensical for the CRP to argue that political parties are permitted to
operate funds not governed by Section 3s constitutional limits and prohibitions based on the

2
These contribution limits have been increased from the 2002 levels established in 3(3) to keep
pace with inflation. See Colo. Const. art. XXVIII, 3(13); Campaign and Political Finance Rule
10.14, 8 C.C.R. 1505-6 (2012).
3
For disclosure purposes, a political party shall be treated as separate entities at the state,
county, local and district levels. Colo. Const. art. XXVIII, 7. For all other purposes, political
parties and their statewide, county and election district affiliated organizations are considered to
be a single entity. Id. 2(13).
8

lack of reference to independent expenditure committees anywhere in Article XXVIII. (CRP
Brief at 12-13, 16). There was no deliberate exclusion of Super-PACs from the contribution
limitations and corporate/labor contribution prohibition in Section 3 when Article XXVIII was
enacted, because such committees didnt exist until after the U.S. Supreme Court struck down
the corporate expenditure limitation in Citizens United v. Federal Election Comn, 558 U.S. 310
(2010). Instead, Colorado citizens intended the independent expenditure activities of a political
party to be governed by the express constitutional limitations and prohibitions on political party
contributions as sanctioned by First Amendment jurisprudence in 2002 when Article XXVIII
was adopted.
When interpreting constitutional amendments, the court must look to the existing law at
the time the citizen initiative was adopted to determine the scope and intent of its provisions.
Colorado Ethics Watch v. Senate Majority Fund, 2012 CO 12, 20. Therefore, these provisions
must be interpreted in light of the then-existing law on independent expenditures by political
parties. Two U.S. Supreme Court cases defined the contours of existing law when voters adopted
Article XXVIII in 2002: Colorado Republican Fed. Campaign Comm. v. Federal Election
Commn, 518 U.S. 604, 617-18 (1996) (Colorado Republicans I), which is relied upon by CRP
in this case, and Federal Election Commn v. Colorado Republicans Fed. Campaign Comm, 533
U.S. 431, 440 (2001) (Colorado Republicans II), a case not cited by CRP to this court but
equally as important to this matter.
In Colorado Republicans I, the party successfully challenged a federal campaign finance
provision which imposed a limit on the amount that a political party could spend related to a U.S.
Senate candidate election (at the time of the case the cap in Colorado was $103,000). See
Colorado Republicans I, 518 U.S. at 611. The U.S. Supreme Court held that the First
9

Amendment prohibited any caps placed on expenditures made by a political party that were
independent from candidate campaigns. Id. at 616. When the case returned to the high court five
years later, it rejected the First Amendment challenge to limits on political party contributions to
candidates in the form of coordinated expenditures. Colorado Republicans II, 533 U.S. at 446-
447. Most of this second opinion describes how political parties are inherently different than
other outside political actors and that this difference justifies the challenged contribution limits.
See id at 481-82 (Indeed, parties capacity to concentrate power to elect is the very capacity that
apparently opens them to exploitation as channels for circumventing contribution and
coordinated spending limits binding on other political players.). Both Colorado Republicans I
and II acknowledged and did not question that all monies taken in by political parties were
subject to federal law contribution limits of $20,000 per donor (with no corporate or union
contributions allowed) even if that money was used for independent expenditures. See Colorado
Republicans I, 518 U.S. at 617; Colorado Republicans II, 533 U.S. at 458.
This was the law when the amendment was adopted, and the court must interpret the
voters intent as consistent with this precedent regarding political parties making independent
expenditures as opposed to CRPs attempt to read permission for its desired activities where
none is given. The only reasonable interpretation of the provisions in Article XXVIII is that the
citizens intended to institute the constitutionally-approved system for political parties making
independent expenditures under Colorado Republicans I and II: a separate bank account within
the party subject to contribution limits and source prohibitions where independent expenditures
are disclosed but are not subject to any caps or spending limits. That was the law in 2002, and
neither the subsequent creation of Super-PACs in statute nor recent case law regarding
expenditures by outside groups has changed that.
10

C. C.R.S. 1-45-107.5 Does Not Override Contribution Limits and Source Prohibitions
Applicable To Political Parties.
Prior to the Citizens United ruling in January 2010, Colorado law had no need for a
Super-PAC statutory provision because corporations and unions were prohibited from making
expenditures except through a connected political committee (subject to its own contribution
limits). Colo. Const. art. XXVIII 3(4)(a). See Citizens United, 558 U.S. at 370 (A campaign
finance system that pairs corporate independent expenditures with effective disclosure has not
existed before today); In Re Interrogatories Propounded by Governor Ritter, Jr. Concerning the
Effect of Citizens United v. Federal Election Commn, 558 U.S.___ (2010) on Certain Provisions
of Article XXVIII of The Constitution of the State of Colorado, 227 P.3d 892 (Colo. 2010). After
that ruling, the Colorado General Assembly chose to create by statute Super-PACs to ensure
consistent public disclosure of these spending by new groups in C.R.S. 1-45-107.5, effective
May 25, 2010. However, when Super-PACs were created in statute, deliberate choices were
made and reflected in the statutory language.
CRPs Complaint makes much of the fact that the Super-PAC statute, C.R.S. 1-45-
107.5, does not expressly prohibit parties from forming Super-PACs. A closer examination of the
statute reveals that the General Assembly intended for political party contribution limits to
continue to apply to any party-sponsored Super-PACs just as limits had always applied to the
independent expenditures made by parties under Colorado Republicans I and II.
First, with regard to the application of Article XXVIII contribution limits to political
party-controlled Super-PACS, the Super-PAC statute simply states that Super-PACs are not
subject to the constitutional limitations in Article XXVIII, 3(5) the contribution limits for
political committees. See CRS 1-45-103.7(2.5). This statute does not say Super-PACs are free
11

from all contribution limits in Article XXVIII. As seen above, the political party contribution
limit is contained in 3(3) a provision not mentioned in the statutory exclusion. The General
Assembly deliberately chose not to exclude that contribution limitation (which has never been
declared unconstitutional), and therefore, Super-PACs created by parties under the statute are
still subject to the 3(3) contribution limits.
The statute also does not exempt political party-controlled Super-PACs from the Article
XXVIII 3(4) prohibition on receipt of corporate or labor union contributions. C.R.S. 1-45-
103.7(1) states that nothing prohibits corporations and labor organizations from contributing to
political committees. As CRP correctly notes, political parties are excluded from the definition of
political committee in Article XXVIII, 2(12)(b). (CRP brief at 16). This statute is not a
removal of the constitutional prohibition on corporate and labor union contributions to political
parties. See also In Re Interrogatories, 227 P.3d at 892 (striking down Article XXVIII bans on
corporate and labor spending on expenditures and electioneering communications but not
prohibition on direct contributions to candidates and political parties). Reading these statutory
provisions together (against the background of constitutional provisions and Supreme Court
precedent), even though a political party may be a person pursuant to C.R.S. 1-45-107.5(3)
that can set up a Super-PAC, its Super-PAC is still subject to constitutional contribution
limitations and prohibitions for political parties.
In summary, Colorados constitutional and statutory provisions allow a political party to
set up a separate bank account that is a Super-PAC to makes expenditures without coordinating
with Colorado candidates, but all contributions to that Super-PAC (whether direct or funneled
through CRP) must comply with the contribution limitations and source prohibitions applicable
12

to political parties.
4
This is true at the federal level as well where independent expenditures
must be paid for with federally permissible funds by federal political parties and Citizens
United has not changed that requirement. See FEC Campaign Guide for Political Party
Committee at 62 (August 2013), attached as Exhibit 2.
D. No First Amendment Rights of CRP are Violated by Colorados Constitutional and
Statutory Regulation of Contributions to Political Parties.
Because CRPs plans for its Super-PAC run afoul of Colorados Constitution and
statutes, the only way that CRP can sponsor a Super-PAC in the unrestricted manner that it seeks
is to convince the court that CRP has an overriding First Amendment Right to do so. It does not.
Since the post-Watergate campaign finance regulations for federal elections were adopted
by Congress, campaign finance case law has drawn a distinction between expenditures and
contributions. As a general rule, the First Amendment does not permit caps on expenditures
(political spending) and such limits are subject to the highest standard of review: strict scrutiny.
See Colorado Republicans I, 518 U.S. at 610; Buckley v. Valeo, 424 U.S. 1, 44-45 (1976).
Contributions, on the other hand, may be regulated both as to amount (through caps on
contributions) and as to source (e.g., prohibitions on contributions from corporations, labor
unions and foreign citizens). See Buckley, 424 U.S. at 20-21; Dallman v. Ritter, 225 P.2d 610,
621-22 (Colo. 2010). Because contribution limits are not a direct restraint on individual speech
but merely limit the ability to give money to approve of a candidate, party or political
organizations message, such limits are subject to the lower standard of exacting scrutiny in First

4
Nor is this a unique structure not applied elsewhere in Colorado campaign finance law. For
example, federal political committees who seek to support or oppose state candidates may only
do so using funds that comply with Colorado contribution limits. See Rules Concerning
Campaign and Political Finance Rule 7.1.1(c), 8 C.C.R. 1505-6 (2012).
13

Amendment law. See Citizens United, 558 U.S. 310, 356-57 (2010); Colorado Republicans I,
518 U.S. at 614-15; Buckley, 424 U.S. at 21.
1. CRPs Right to Make Independent Expenditures in Unlimited Amounts without
Coordination with Candidates is Not Affected by this Case.
Nothing in Article XXVIII or the Super-PAC statute sets limits on the amount of
independent expenditures made through CRPs sponsored fund so long as it follows the
guidelines in Colorado Republicans I and II to avoid coordination with the state candidates
affected by that spending. To the extent that recent case law has re-affirmed CRPs right to make
unlimited independent expenditures, that does not answer the question presented by CRP.
CRP attempts to use case law interpreting restrictions on expenditures to support its
argument that it must be relieved from restrictions contributions to its Super-PAC. Citizens
United and Colorado Republicans I analyzed restrictions on expenditures and did not affect
longstanding U.S. Supreme Court rulings upholding contribution limitations to political parties
(referred to as soft money in federal law). See Citizens United, 558 U.S. at 361 (This case,
however, is about independent expenditures, not soft money); Dallman, 225 P.2d at 622 (The
Supreme Court decision in Citizens United addressed only expenditure limits and disclosure
requirements; thus, it does not control our analysis of Amendment 54s contribution limits.).
The mere fact that raising contributions in higher amounts and from more sources could allow
the CRP Super-PAC to spend more on its independent expenditures does not mean that these
contribution regulations are treated as expenditure limits for constitutional analysis. The question
of whether or not CRP has a constitutional right to disregard the contribution limits and
prohibitions to political parties in Article XXVIII must be analyzed using precedent examining
contribution limits instead of the expenditure limit cases cited by CRP.
14

2. The U.S. Supreme Court has Consistently Upheld Contribution Limitations and
Prohibitions as Applied to Political Parties as Constitutional.
As stated in Colorado Republicans I, reasonable contribution limits directly and
materially advance the Government's interest in preventing exchanges of large financial
contributions for political favors. 518 U.S. at 615 (citing Buckley, 424 U.S. at 26-27).
Contribution limits permit[] the symbolic expression of support evidenced by a contribution
but do[] not in any way infringe the contributors freedom to discuss candidates and issues.
McCutcheon v. Federal Election Comn, 134 S. Ct. 1434, 1444 (2014) (quoting Buckley, 424
U.S. at 21, notations in original). Under the lower level of scrutiny applied by the Supreme
Court, contribution limits are valid so long as they are closely drawn to match a sufficiently
important government interest. McConnell v. Federal Election Comn, 540 U.S. 93, 136 (2003).
This lower scrutiny gives deference to the legislatures ability to weigh competing interests and
provides legislation sufficient room to anticipate and respond to concerns about circumvention
of regulations designed to protect the integrity of the political process. Id. at 137.
CRP admits that Article XXVIIIs contribution limits and prohibitions continue to apply
to political parties when it states that such constitutional provisions have not yet been
successfully challenged in court. (CRP Brief at 16). In Colorado Republicans II, there was no
question or challenge to the fact that the political party must continue to comply with the
$20,000 per year limit on contributions from individuals even if that money was used for
independent expenditures. See id. at 458-61. Subsequently, the U.S. Supreme Court upheld
additional contribution limitations on political parties which banned receipt of soft money
contributions outside the statutory limitations as constitutional means to address the
governments interest in preventing corruption and appearance of corruption:
15

Given this close connection and alignment of interests, large soft-
money contributions to national parties are likely to create actual
or apparent indebtedness on the part of federal officeholders,
regardless of how those funds are ultimately used.

McConnell, 540 U.S. at 155. This Supreme Court analysis of political party contribution
limitations is still governing law today. See Republican Natl Comm. v. Federal Election Comn
(In re Anh Cao), 619 F.3d 410, 422 (5
th
Cir. 2010) (rejecting constitutional challenge to
contribution limits on political parties because we do not read Citizens United as changing how
this court should evaluate contribution limits on political parties and PACs) (Cao). The most
recent U.S. Supreme Court case on contribution limitations (striking down aggregate donor
limits not at issue in this case) also reaffirms that contribution limits as applied to political parties
are constitutional and still binding. See McCutcheon, 134 S. Ct. at 1451 n.6 (Our holding about
the constitutionality of the aggregate limits clearly does not overrule McConnells holding about
soft money.).
Most relevant is the post-Citizens United case of Republican Natl Comm.et al. v. Federal
Election Comn, 698 F. Supp. 2d (D.D.C 2010) (RNC). This case involved a First Amendment
challenge brought by national and state party committees challenging the contribution limits for
political parties very similar to CRPs complaint. The political party sought to raise contributions
not subject to statutory contribution limits for use in certain activities not connected to federal
candidate races and argued that the First Amendment prohibited limiting contributions in those
circumstances. Id. at 155-56. The special three-judge panel (including one D.C. Circuit Judge)
held unanimously that Citizens United did not disturb McConnells holding with respect to the
constitutionality of [statutory] limits on contributions to political parties. Id. at 153. As an initial
matter, the court rejected the argument that contribution limits functioned as a de facto
expenditure limitation and should be subject to higher level of scrutiny. Id. at 156. Then the court
16

found that McConnells holding that there is no First Amendment violation in applying
contribution limitations and prohibitions to all funds raised and spent by political parties
regardless of how that money is spent is still valid and binding after Citizens United. Id. at 157-
58. Upon appeal, the U.S. Supreme Court summarily affirmed this holding in Republican Natl
Comm.et al. v. Federal Election Comn, 130 S.Ct. 3543 (2010).
5
Thus, governing Supreme Court
precedent states that contribution limits and prohibitions can constitutionally be applied to
political parties like CRP regardless of whether they intend to use the money for independent
expenditures. See McCutcheon, 134 S.Ct. at 1451 (Those base limits remain the primary means
of regulating campaign contributions.).
Nor has this line of cases upholding contribution limitations on parties been overruled by
post-Citizens United cases allowing Super-PACs without contribution limits or prohibitions for
other political actors. These cases reaffirm a right for outside groups to operate without
contribution limits for independent expenditures because of their different position in campaigns
than political parties or candidates. See Carey v. Federal Election Comn, 791 F. Supp. 2d 121,
131 (D.D.C. 2011) (non-connected non-profits are not the same as political parties and do not
cause the same concerns); SpeechNow.org, et al. v. Federal Election Comn, 599 F.3d 686, 695
(D.C. Cir. 2010) (distinguishing between independent expenditures made by political parties at
issue in Colorado Republicans I and such expenditures by non-connected groups). Unlike non-
connected Super-PACs established under C.R.S. 1-45-107.5, CRP and all political parties are
inherently linked with candidates and officeholders. This difference has been recognized by the
courts to allow for different First Amendment treatment: more onerous contribution restrictions

5
A U.S. Supreme Court summary affirmance is not merely a denial of certiorari, but action with
precedential value with respect to the precise issues presented and necessarily decided by those
actions. Anderson v. Celebrezze, 460 U.S. 780, 784 n.5 (1983).
17

may be placed on political parties than independent groups. Republican Party of N.M. v. King,
741 F.3d 1089, 1100 (10th Cir. 2013). See also Long Beach Area Chamber of Commerce v. City
of Long Beach, 603 F.3d 684, 696, 698 (9th Cir. 2010) (distinguishing permissible contribution
limits on political parties from impermissible limits on non-connected committees); Cao, 619
F.3d at 422 (noting the precise role that political parties fill that gives rise to the Government's
compelling interest in regulating their coordinated expenditures and contributions); N.C. Right
to Life, Inc. v. Leake, 525 F.3d 274, 292-93 (4th Cir. 2008) (McConnell specifically emphasized
the difference between political parties and independent expenditure political committees, which
explains why contribution limits are acceptable when applied to the former, but unacceptable
when applied to the latter).
Just this month, the U.S. District Court for the District of Columbia denied a preliminary
injunction in a similar challenge by the national Republican and Libertarian parties seeking to
declare federal contribution limits to political parties unconstitutional as applied to independent
expenditures. See Rufer et al.v. Federal Election Comn, No.14-cv-837, 2014 U.S. Dist. LEXIS
114762 (D.D.C. August 19, 2014). The Rufer opinion held that the parties are not likely to
succeed on the merits because their constitutional claims are in tension with forty years of
Supreme Court jurisprudence upholding contribution limits to political parties. Id. at *22. The
fact that national political parties pursuing this parallel federal court case must overturn decades
of Supreme Court precedent to get the same result sought by CRP belies CRPs argument that
current First Amendment jurisprudence guarantees a political partys right to use unrestricted
funds for independent expenditures.
[P]olitical parties have influence and power in the Legislature that vastly exceeds that of
any interest group. McConnell, 540 U.S. at 188. Colorado citizens have spoken and decided that
18

the potential for corruption warrants limitations on contributions to political parties. See Colo.
Const. art. XXVIII 3(3) and 3(4). In Colorado, as in federal law and other states, political
parties are simply differently situated and appropriately treated differently than corporations,
labor organizations, or other associations. See McConnell, 540 U.S. at 144 (The idea that large
contributions to a national party can corrupt or, at the very least, create the appearance of
corruption of federal candidates and officeholder is neither novel nor implausible.); Colorado
Republicans I, 518 U.S. at 617 (noting the potential for corruption linked to the ability of
donors to give sums up to $20,000 to a party which may be used for independent party
expenditures for the benefit of a particular candidate); Republican Party of N.M, 741 F.3d. at
1100 (groups that do not share a party relationship are treated differently); EMILYs List v.
Federal Election Comn, 581 F.3d 1, 14 (D.C. Cir. 2009) (non-profit groups do not have the
same inherent relationship with federal candidates and officeholders that political parties do).
Parties thus perform functions more complex than simply electing candidates; whether they like
it or not, they act as agents for spending on behalf of those who seek to produce obligated
officeholders. Colorado Republicans II, 533 U.S. at 453. When CRP Chairman Call actively
fundraises for the CRP Super-PAC (which will only support Republican party candidates in the
general election without choosing sides in the primary election), clearly candidates will know
these donations will help their campaign. This potential corrupting influence justifies the
contribution limits and corporate and labor union prohibitions. Otherwise, the CRP Super-PAC
could become a way to evade the limits and corporate and labor union prohibitions on
contribution to Colorado candidates. See McConnell, 540 U.S. at 145-46 (recognizing evidence
in record of soft money donations to political parties used to create debt on the part of
19

officeholders in circumvention of contribution limits to candidates); Republican Party of N.M.,
741 F.3d at 1099.
CRP makes a lengthy policy argument that political parties should be able to have the
same playing field in the marketplace of ideas instead of being drowned out by outside
spenders including those groups not subject to disclosure. (CRP Brief at 20). U.S. Supreme
Court precedent makes clear that a desire to level electoral opportunities between the wealthy
and those with less money to spend on elections is not a valid governmental interest under the
First Amendment. Davis v. FEC, 554 U.S. 724, 742 (2008). CRPs argument should be made to
the people of Colorado and the legislature in support of amendments to Article XXVIII to raise
or remove the contribution limits and prohibitions on political parties. Colorados voters, like
Congress, are fully entitled to consider the real-world differences between political parties and
interest groups when crafting a system of campaign finance. McConnell, 540 U.S. at 188.
Moreover, similar policy arguments have been rejected by the courts, both before and
after Citizens United. See RNC, 698 F. Supp. 2d at 160 n.5 (we recognize the RNCs concern
about this disparity, which, it argues, discriminates against the national political parties in
political and legislative debates. But that is an argument for the Supreme Court or Congress);
Cao, 619 F.3d at 422 (the Supreme Court's analysis fully supports the Government's differential
treatment of political parties because of what Colorado II recognized as a political party's
unique susceptibility to corruption); McConnell, 540 U.S. at 187-89 (rejecting political parties
equal protection challenge because laws discriminate against parties in favor of outside special
interest groups). CRPs policy preferences provide no basis for this court to overturn state
constitutional provisions.

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VI. CONCLUSION
No one challenges the CRP Super-PACs right to spend unlimited amounts in
independent expenditures to support Republican candidates in state elections. Because CRP
cannot challenge the right of outside groups to similarly spend unlimitedly to support other
candidates, it seeks to remove what it sees as an unfair impediment: Article XXVIIIs
contribution limits and prohibitions on political parties. But these contributions limits are
constitutional and must be applied to any Super-PAC sponsored and controlled by a political
party. Continuing to apply duly-enacted Colorado Constitutional provisions to the CRP Super-
PAC does not offend the First Amendment because the overall effect of the Acts contribution
ceilings is merely to require candidates and political committees to raise funds from a greater
number of persons. Buckley, 424 U.S. at 21-22. The court is bound to enter a declaratory order
that the CRP Super-PAC must comply with the contribution limits and prohibitions in Article
XXVIII.
Respectfully submitted this 22nd day of August 2014,





_____[Original Signature On File]______
Luis Toro, #22093
Margaret Perl, #43106

Attorneys for Intervenor-Defendant Colorado Ethics Watch

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CERTIFICATE OF SERVICE

I certify that on August 22, 2014, I served a true copy of the above and foregoing through
ICCES on the following:

Richard A. Westfall, Esq.
Allan L. Hale, Esq.
Peter J. Krumholz, Esq.
Hale Westfall, LLP
1600 Stout St., Suite 500
Denver, CO 80202

Matthew Grove, Esq.
Sueanna Johnson, Esq.
Colorado State Attorney General
State Services Section
1300 Broadway, 6th Floor
Denver, CO 80203

_____[Original Signature On File]______
Margaret Perl