Case 1:14-cv-02850-CMA-KLM Document 24 Filed 11/07/14 USDC Colorado Page 1 of 16

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Civil Action No. 1:14-cv-02850
ROCKY MOUNTAIN GUN OWNERS, et al.,
Plaintiffs,
v.
SCOTT GESSLER, et al.,
Defendants.

PLAINTIFFS MEMORANDUM IN SUPPORT OF MOTION

FOR PRELIMINARY INJUNCTION

Colorados electioneering communication definition is an unconstitutional

political IED lying in wait for unsuspecting political speakers. The definition is so broad
that it encompasses a nearly limitless array of speech protected by the First
Amendment, including political speech, which has a cherished and protected place in
American jurisprudence. As a result, under Colorado law, a speaker only has $999.99
worth of freedom of speech.
Discussion of public issues and debate on the qualifications of candidates are
integral to the operation of the systems of government established by our Constitution.
Buckley v. Valeo, 424 U.S. 1, 14 (1976). [T]here is practically universal agreement that
a major purpose of th[e] [First] Amendment was to protect the free discussion of
governmental affairs, . . . of course includ(ing) the discussions of candidates. Id.
(quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)).

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The First Amendment also protects political association. See NAACP v.

Alabama, 357 U.S. 449, 460 (1958) (Effective advocacy of both public and private
points of view, particularly controversial ones, is undeniably enhanced by group
association.).
It is hardly a novel perception that compelled disclosure of
affiliation with groups engaged in advocacy may constitute
a(n) effective . . . restraint on freedom of association. . . .
This Court has recognized the vital relationship between
freedom to associate and privacy in ones associations. . .
Inviolability of privacy in group association may in many
circumstances be indispensable to preservation of freedom
of association, particularly where a group espouses dissident
beliefs.
Id. at 462.
The freedom to speak and to associate are core First Amendment values.
Colorado law, however, is designed to quash these cherished rights on the eve of an
election, when the electorates ear is most inclined to listen, and when the speech is
most likely to make a difference. The electioneering communication definition
encompasses almost all speech referencing a political candidate in the weeks before an
election. In addition, Colorados statutory scheme allows private citizens to prosecute a
cause of action against speakers who run afoul of this definition. The statute
encourages political shenanigans from opponents who dislike or disapprove of the
speakers viewpoint and imposes asymmetric burdens on speakers like the Plaintiffs to
defend an enforcement action at election time when their voice can be most effective.
Plaintiffs respectfully seek a preliminary injunction enjoining enforcement of any
provision of Colorado law that relies upon the electioneering communication definition.

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FACTUAL BACKGROUND
1. The Plaintiffs
Rocky Mountain Gun Owners (RMGO) is a Colorado, non-profit corporation,
which is exempt from federal income taxes under I.R.C. 501(c)(4). Compl. 12. It is
Colorados largest state-based, Second Amendment grassroots lobbying organization.
Compl. 12. RMGOs stated mission is to defend Coloradans Second Amendment
right to keep and bear arms from all its enemies, and advance those God-given rights
by educating the people of Colorado and urging them to take action in the public policy
process. Compl. 13.
Colorado Campaign for Life (CCFL) is a Colorado non-profit corporation, which
is also exempt from income taxes under I.R.C. 501(c)(4). Compl. 15. It is a
Colorado-based and focused grassroots, pro-life lobbying organization. Compl. 15.
CCFLs mission is to promote the passing of pro-life legislation, such as the Life at
Conception Act, and to lobby for support of such public policy positions. Compl 16.
In furtherance of their respective missions, RMGO and CCFL engage in issuedriven speech to inform Coloradans about the public policy positions of political
candidates on the Second Amendment (RMGO) and abortion (CCFL). Compl. 14,
17. As 501(c)(4) organizations, Plaintiffs are not obligated to disclose the identities of
their members, donors, and supporters. Compl. 12, 15.
2. Statutory Background
Article XXVIII of the Colorado Constitution was enacted to address the potential
for corruption and the appearance of corruption of large campaign contributions as well

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as to address the alleged outsized influence of wealthy individuals, corporations, and

special interest groups on the political process through those large campaign
contributions. Colo. Const. art. XXVIII, 1.
Article XXVIII, in conjunction with Colorados Fair Campaign Practices Act
(FCPA), Colo. Rev. Stat Ann. 1-45-101, et seq., act as Colorados primary campaign
finance laws imposing various reporting and disclosure requirements on speakers
engaged in an electioneering communication, which is defined as:
[A]ny 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:
(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); see also Colo. Rev. Stat. Ann. 1-45-103(9).1
Any person spending more than $1,000 per calendar year on such
electioneering communications is required to submit periodic reports to the Secretary
of State, that include the amount of money spent on such communications and identify
1

Article XXVIII and the FCPA both exclude from the definition of electioneering
communication the following: (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 controlled by a candidate or political party; (II) Any editorial
endorsements or opinions aired by a broadcast facility not owned or controlled by a candidate or
political party; (III) Any communication by persons made in the regular course and scope of their
business or any communication made by a membership organization solely to members of such
organization and their families; (IV) Any communication that refers to any candidate only as part
of the popular name of a bill or statute. Colo. Const. art. XXVIII, 2(7); see also Colo. Rev. Stat.
Ann. 1-45-103(9).

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the name, address, occupation, and employer of any person that contributed more than
$250 to fund the electioneering communication. Colo. Const. art. XXVIII, 6(1); Colo.
Rev. Stat. Ann. 1-45-108.
The Secretary of State is responsible for enforcing and promulgating rules in
furtherance of these campaign finance provisions. See Colo. Const. art. XXVIII, 9.
Among other penalties, violators shall be subject to a civil penalty of at least double
and up to five times the amount contributed, received, or spent in violation of the
applicable provision. Colo. Const. art. XXVIII, 10(1). A failure to file the appropriate
statement or other information required under Article XXVIII and the FCPA also subjects
violators to a fine of $50 per day. Colo. Const. art. XXVIII, 10(2).
Colorados statutory scheme also permits any person to pursue a private action
to enforce Colorados campaign finance laws by filing a complaint with the Secretary of
State. See Colo. Const. art. XXVIII, 9(2)(a). After a complaint is filed, the Secretary is
required to refer it to an administrative law judge. See Colo. Const. art. XXVIII,
9(2)(a). The complaining party is allowed to take discovery including deposing the
speaker and obtaining records though the use of subpoenas duces tecum. Compl. Exs.
F, G. The judge must hold a hearing within fifteen days of the complaint being referred
and must render a decision within fifteen days of that hearing. See id. Such decisions
are reviewable by the court of appeals. See id.
The Secretary of State may enforce a final decision by bringing an enforcement
action. See Colo. Const. art. XXVIII, 9(2)(a). If, however, the Secretary of State fails

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to file an enforcement action within thirty days of the decision, the complainant may file
its own private action to enforce the decision. See id.
3. Impact of the Regulation Scheme on Plaintiffs
a. Plaintiffs June, 2014, Primary Mailings
In mid-June, 2014, CCFL sent mailers to Republican primary voters in Colorado
Senate Districts 19 and 22. Compl. 30; Compl. Exs. A, B. In early June, 2014,
RMGO sent a mass mailing to Republican primary voters in Colorado Senate Districts
19 and 22. Compl. 32; Compl. Ex. C. The mailers unambiguously referred to
candidates for office in Colorado and cost more than $1,000. Compl. 31, 33. The
communications did not expressly or impliedly advocate for the election or defeat of a
particular candidate. Compl. 36. The communications were mailed to voters within
Colorado Senate Districts 19 and 22 within thirty days of the June 24, 2014, primary
election. Compl. 34. Neither CCFL nor RMGO filed a report to the Secretary of State
of the State of Colorado reflecting donor information. Compl. 35. Plaintiffs intend to
continue to distribute similar issue-based communications in the future to inform their
constituencies of the positions of potential candidates on issues surrounding the
Second Amendment (RMGO) and/or abortion (CCFL). Compl. 36.
b. Private Action by Colorado Ethics Watch
On September 9, 2014, Defendant, Citizens for Responsibility and Ethics in
Washington (CEW),2 filed a private enforcement action against Plaintiffs. Compl.

Defendant Citizens for Responsibility and Ethics in Washington t/a Colorado Ethics
Watch is registered to operate as a foreign corporation with the Colorado Secretary of State
under the trade name Colorado Ethics Watch. The private enforcement action was initiated

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37. CEWs complaint alleges that Plaintiffs mailings fall within the definition of an
electioneering communication and that Plaintiffs failed to file the appropriate reports
and disclosure of contributors. Compl. 38; Compl. Ex. D. CEW demands that Plaintiffs
be fined for each day they fail to file those reports. Compl. 39.
After receiving CEWs complaint, Defendant Scott Gessler, Colorado Secretary
of State, referred the action to an administrative law judge for adjudication. Compl.
41. This matter has been assigned Case No. OS 20140025 in the Colorado Office of
Administrative Courts. Compl. 41. A hearing on the merits was scheduled to be held
on November 6, 2014, at 9:00 a.m., before the Office of Administrative Courts. Compl.
42; Compl. Ex. E. That hearing has been continued.3 The statutory scheme permits
pre-trial discovery like in a civil action and CEW has previously noticed C.R.C.P.
30(b)(6) depositions and C.R.C.P. 34(a)(1) document requests upon RMGO and CCFL.
Compl. 45; Compl. Exs. F, G. The hearing will be a full adversary proceeding, much
akin to a bench trial. Compl. 44; Compl. Ex. E.4
Plaintiffs are subject to great economic harm as a result of their defense of this
private enforcement action. Compl. 46. Aside from incurring legal fees, the
inconvenience of pre-trial discovery, and preparing for trial during election season, each
organization is subject to extensive fines if found guilty of violating these laws. Compl.
46. Yet, this economic harm pales in comparison to the chilling effect this statutory

under CEWs name. Therefore, for the purposes of this memorandum, Plaintiffs will refer to this
defendant as CEW.
3
The Office of Administrative Courts has not provided a new hearing date.
4
Even before a hearing has been held, CEW has continued to demand that RMGO and
CCFL file the disclosure responses. Compl. 46; Compl. Ex. H.

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scheme has on the First Amendment rights of the Plaintiffs and other speakers.
Plaintiffs seek this preliminary injunction to protect those freedoms.
ARGUMENT
A party seeking a preliminary injunction must demonstrate: 1) likelihood of
success; 2) irreparable harm absent a preliminary injunction; 3) that the balance of
equities tips in the moving partys favor; and 4) that the injunction is in the public
interest. Republican Party of N.M. v. King, 741 F.3d 1089, 1092 (10th Cir. 2013).
I.

Plaintiffs are Likely to Succeed on the Merits.

A. The electioneering communication definition is overly broad.
A challenge on overbreadth grounds centers on whether the relevant statute

reaches a substantial amount of constitutionally protected speech. Wisconsin Right to

Life v. Barland, 751 F.3d 804, 835-36 (7th Cir. 2014). However, in the context of a
statute targeting speech at the time of a campaign, this test is satisfied by definitionas
all political speech is always protected under the First Amendment. See id. at 836.
Thus, government may regulate in th[is] area only with narrow specificity. Buckley v.
Valeo, 424 U.S. 1, 41 n.48 (1976).
To comply with the narrow specificity requirement, government may only
regulate express election advocacy or its equivalent. Barland, 751 F.3d at 836.
Express advocacy, as defined in Buckley, includes the use of words such as vote for,
elect, support, cast your ballot for, Smith for Congress, vote against, defeat,
reject. Buckley, 424 U.S. at 44 n.52. Any government regulation of issue-driven
political expression outside of the sphere of express election advocacy is

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constitutionally forbidden. Barland, 751 F.3d at 811. Yet this is exactly the type of
issue-driven political expression at issue here that is improperly regulated under
Colorados statutory scheme.
Instead of merely addressing the stated purpose of Article XXVIII, the FCPAs
sweep encompasses a vast array of political speech because of how it defines an
electioneering communication. No party that spends more than $1,000 and merely
mentions a candidates name near election time to the electorate escapes this statutory
schemes reach. Colo. Const. art. XXVIII, 2(7); see also Colo. Rev. Stat. Ann. 1-45103(9) (2014). It is this regulation of protected speech, outside of the governments
power to regulate, that renders this definition of electioneering communication
unconstitutionally overbroad.
The Seventh Circuit recently examined a similar statute in Barland. 751 F.3d at
837. In addition to the three definitional requirements set forth in Colorados statute, to
be considered an electioneering communication under Wisconsins statute, the speech
was required either to (1) refer to the personal qualities, character, or fitness of that
candidate; (2) support or condemn that candidate's position or stance on issues; or (3)
support or condemn that candidate's public record. Id. at 837.
Even though the reach of Wisconsins statute was much less broad than
Colorados, the Seventh Circuit ruled that Wisconsins statute was unconstitutionally
overbroad. Id. at 838. The Court determined that, during the 30/60 day window before
an election, essentially all political speech about issues counted as express advocacy
under the Wisconsin statute triggering PAC-like requirements if a speaker named

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and said pretty much anything at all about a candidate for office. Id. at 836-37. Given
the significant expense, burden, and chilling effect of PAC-like reporting and disclosure
on ordinary citizens, grassroots issue-advocacy groups, and 501(c)(4) social-welfare
organizations, Wisconsins statute was overbroad precisely because it was not limited to
regulating speech that expressly advocated for or against candidates. Id. at 837-38.
While Wisconsins statute attempted to regulate only speech that discussed a
candidates qualifications, Colorados statute has a limitless reach so long as the
candidates name is unambiguously included in any communication. Colo. Const. art.
XXVIII, 2(7). Thus, if Wisconsins more narrowly-tailored statute is unconstitutionally
overbroad, it necessarily follows that Colorados far more broad statute must be
similarly unconstitutional. The logic is inescapable.
B. The $1,000 expenditure threshold is too low.
The same communications at issue here would not be considered electioneering
communications if the Plaintiffs had spent less than $1,000. Because the Plaintiffs
spent more than $1,000 on these communications, they are subject to PAC-like
reporting and disclosure requirements. PAC-like reporting and disclosure requirements
are impermissibly burdensome to political speech that does not expressly advocate for
or against the election of candidates and acts as the equivalent of prior restraint. See
Citizens United, 558 U.S. at 335. These burdens are not merely clerical or
administrative, they are restrictions on speech and association. Coal. for Secular Govt
v. Gessler, No. 1:12-cv-01708-JLK-KLM, 2014 WL 509227, at *1 (D. Colo. Oct. 10,
2014)(citing FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 254 (1986)). The

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disclosure of an organizations contributors is disfavored because it impinges upon the

freedom of association. Davis v. FEC, 554 U.S. 724, 744 (2008) ([C]ompelled
disclosure, in itself, can seriously impinge on privacy of association and belief
guaranteed by the First Amendment.).
Forced disclosure regimes implicate two basic concerns. First, forced disclosure
of donors burdens associational privacy interests. Barland, 751 F.3d at 840; see also
Sampson v. Buescher, 625 F.3d 1247, 1255 (10th Cir. 2010) (Reporting and disclosure
requirements . . . can infringe on the right of association.). Second, PAC-like
registration and reporting requirements impose heavy administrative burdens, creating
disincentives to participation in election-related speech. Id. at 840; see also Citizens
United v. FEC, 558 U.S. 310, 337-38 (2010), Sampson, 625 F.3d at 1255.
Burdens on speech may be upheld under the exacting scrutiny standard only if
there is a substantial relation between the disclosure requirement and a sufficiently
important governmental interest. Sampson, 625 F.3d at 1255. Exacting scrutiny is not
a loose form of judicial review. Barland, 751 F.3d at 840. Rather [t]o withstand this
scrutiny, the strength of the governmental interest must reflect the seriousness of the
actual burden on First Amendment rights. Sampson, 625 F.3d at 1255.
The Supreme Court has recognized three justifications for reporting and
disclosing campaign finances. Buckley, 424 U.S. at 67-68. First, disclosure
requirements are an essential means of gathering the data necessary to detect
violations of . . . contribution limitations. Id. at 67. Second, disclosure requirements
deter actual corruption and avoid the appearance of corruption by exposing large

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contributions and expenditures to the light of publicity. Id. at 67. Third, disclosure
requirements benefit the publics informational interest. See id. at 67. None of these
justifications are satisfied here.
Section 6(1) of the Colorado Constitution provides that any person spending
more than $1,000 on electioneering communications during a calendar year must report
to the Secretary of State and disclose the name, address, occupation and employer of
each donor who gave more than $250 to fund the communications. Id. There is simply
no governmental interest in the identity, occupation, or employer of a donor who gave
$250, or more, to fund an issue-based communication that does not advocate for or
against any candidate. Two recent cases, Sampson and Coalition for Secular
Government, illustrate that point and clearly show why Colorados $1,000 expenditure
threshold does not survive the exacting scrutiny standard.
In Sampson, the Tenth Circuit noted the disconnect between the avowed
purpose of Article XXVIIIs disclosure requirements and its actual effect on First
Amendment rights. 625 F.3d at 1254. The Court held that the cost and burden of
disclosure was not substantially related to any of the permissible justifications for
requiring disclosure when imposed on a group that spent a small amount of money (less
than $1,000 excluding attorneys fees) opposing a ballot issue. See id. at 1261. The
Court also held that the value of the type of information subject to disclosure to the
voters declines drastically as the value of an expenditure or contribution sinks to a
negligible level especially when the communications did not involve the expenditure of
tens of millions of dollars on ballot issues presenting complex policy issues. Id. at 1259-

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61 (emphasis added and citations omitted). Because there was not a sufficiently
substantial relation between the requirement imposed and the governmental interest,
the court found the statute did not satisfy exacting scrutiny. Id. at 1261.
Similarly, in Coalition for Secular Government, Judge Kane held that
expenditures of $3,500 to distribute a paper regarding personhood could not trigger
registration or disclosure. Coal. for Secular Govt v. Gessler, No. 1:12-cv-01708-JLKKLM, 2014 WL 509227, at *1 (D. Colo. Oct. 10, 2014). Notably, Judge Kane
determined that the governmental interest in knowing the source of such small
expenditures was highly limited. Id. at *5. The burdens imposed on a speaker
outweighed such limited informational interest, because those burdens were not merely
clericalthey were restrictions on speech and association. Id. It logically follows that if
the $3,500 expenditure threshold was too low in that case, then the $1,000 expenditure
threshold at issue here must similarly be unconstitutional.
Instead of regulating significant expenditures on electioneering
communications, like the expensive television commercials cited in Article XXVIII, this
law reaches all the way down to regulate persons involved in neighborhood disputes
that have the temerity to mention a candidates name during election time and spend
more than $1,000 to do it. See e.g. Sampson, 625 F.3d at 1255; see also Barland, 751
F.3d at 837. Clearly a Constitutionally untenable situation.
II.

Plaintiffs Will Suffer Irreparable Harm Absent an Injunction.

The loss of First Amendment Freedoms, even for minimal periods of time,

unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373

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(1976); Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1235 (10th Cir. 2005)
([W]e therefore assume that plaintiffs have suffered irreparable injury when a
government deprives plaintiffs of their commercial speech rights.) The harm is
particularly irreparable where, as here, a plaintiff seeks to engage in political speech, as
timing is of the essence in politics and a delay of even a day or two may be intolerable.
Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009) (internal quotation
marks and alteration omitted).
III.

The Balance of Equities Favors an Injunction.

A threatened injury to a plaintiffs constitutionally protected speech outweighs

whatever damage the preliminary injunction may cause Defendants inability to enforce
what appears to be an unconstitutional statute. ACLU v. Johnson, 194 F.3d 1149, 1163
(10th Cir. 1999). Absent an injunction, a wide range of speech, both political and nonpolitical, particularly issue-driven speech, is restricted. Moreover, the private
enforcement action, including its discovery requirements, are potentially ruinous in time
and cost to small groups like the Plaintiffs, and exposes possibly sensitive strategy
information to political opponents. Plaintiffs must divert from their mission to defend
against this private enforcement action at the time when the public is most inclined to
hear their message. There is no corresponding cost or hardship to the Defendants.
IV.

The Public Interest is Served by Protecting First Amendment Rights.

A state does not have an interest in enforcing a law that is likely constitutionally

infirm. Chamber of Commerce of U.S. v. Edmonson, 594 F.3d 742, 771 (10th Cir.
2010). Moreover, a preliminary injunction vindicating constitutional rights is always in

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the public interest. See Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1237
(10th Cir. 2005) (Vindicating First Amendment freedoms is clearly in the public
interest.).
CONCLUSION
For the foregoing reasons, this Court should enter an order preliminarily enjoining
the Defendants from enforcing any provision of Colorado law that relies upon the
electioneering communication definition.
Dated: November 7, 2014

Respectfully submitted,
/s/ David A. Warrington
David A. Warrington
Laurin H. Mills
Andrew J. Narod
Paris R. Sorrell
LeClairRyan, A Professional Corporation
2318 Mill Road, Suite 1100
Alexandria, Virginia 22314
Telephone: (703) 684-8007
Facsimile: (703) 647-5999
david.warrington@leclairryan.com
laurin.mills@leclairryan.com
andrew.narod@leclairryan.com
paris.sorrell@leclairryan.com

James O. Bardwell
Rocky Mountain Gun Owners
501 Main Street, Suite 200
Windsor, CO 80550
Telephone: (877) 405-4570
Facsimile: (202) 351-0528
jb@nagrhq.org
Counsel for Plaintiffs Rocky Mountain Gun
Owners and Colorado Campaign for Life

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CERTIFICATE OF SERVICE
I hereby certify that on November 7, 2014, I electronically filed the foregoing
document with the Clerk of Court using the CM/ECF system, which will send notice of
such filing to counsel of record who are registered with CM/ECF.
/s/ David A. Warrington

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