Citizens United's Opposition To Secretary's Petition For Rehearing en Banc

Appellate Case: 14-1387
Document: 01019354934
Date Filed: 12/11/2014
Page: 1
No. 14-1387
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
CITIZENS UNITED,
Plaintiff-Appellant,
v.
SCOTT GESSLER and SUZANNE STAIERT,
Defendant-Appellees,
and
COLORADO DEMOCRATIC PARTY, et al.
Intervenor-Defendant-Appellees.
On Appeal From The United States District Court For The District Of Colorado
Honorable R. Brooke Jackson
In No. 1:14-CV-02266-RBJ
CITIZENS UNITEDS OPPOSITION TO SECRETARYS
PETITION FOR REHEARING AND FOR REHEARING EN BANC
Michael Boos
CITIZENS UNITED
1006 Pennsylvania Avenue, S.E.
Washington, D.C. 20003
(202) 547-5421
December 11, 2014
Theodore B. Olson
Counsel of Record
Matthew D. McGill
Amir C. Tayrani
Lucas C. Townsend
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
(202) 955-8500
TOlson@gibsondunn.com
Counsel for Appellant Citizens United
Document: 01019354934
Page: 2
TABLE OF CONTENTS
Page
INTRODUCTION...................................................................................................... 1
2BARGUMENT ............................................................................................................. 4
I.
The Secretarys Petition Fails To Meet The Stringent

Standards For En Banc Review. ............................................................ 5
II.
The Panels Holding Is Compelled By Binding Supreme

Court Authority. .................................................................................. 10
CONCLUSION ........................................................................................................ 15
Document: 01019354934
Page: 3
TABLE OF AUTHORITIES
Pages
Cases
Air Line Pilots Assn, Intl v. E. Air Lines, Inc.,
863 F.2d 891 (D.C. Cir. 1989) ...............................................................................4
Citizens United v. FEC,
558 U.S. 310 (2010) .............................................................. 1, 2, 3, 6, 7, 8, 11, 14
Kimberlin v. U.S. Dept of Justice,
351 F.3d 1166 (D.C. Cir. 2003) .............................................................................9
McIntyre v. Ohio Elections Commission,
514 U.S. 334 (1995) .............................................................................................15
Minneapolis Star & Tribune Co. v. Minn. Commr of Revenue,
460 U.S. 575 (1983) .................................................................................. 3, 11, 13
In re Morgan,
717 F.3d 1186 (11th Cir. 2013) ........................................................................... 15
Turner Broadcasting System, Inc. v. FCC,
512 U.S. 622 (1994) .............................................................................................14
United States v. Sturm,
Nos. 09-1386, 09-5022, 2011 WL 6261657 (10th Cir. Apr. 4, 2011) ...................5
Constitutional Provision
Colo. Const. art. XXVIII, 2(8)(b) .........................................................................12
Rules
10th Cir. R. 35.1 .................................................................................... 1, 4, 5, 6, 7, 9
10th Cir. R. 40.1 .........................................................................................................2
Fed. R. App. P. 35 ..................................................................................................1, 4
Fed. R. App. P. 40 ......................................................................................................2
ii
Document: 01019354934
Page: 4
INTRODUCTION
As requested by the Court, Citizens United respectfully submits this opposition to the Secretarys Petition for Rehearing and for Rehearing En Banc. The
panel correctly held that Citizens United has established a substantial likelihood of
success on its claim that Colorados campaign finance law unconstitutionally imposes discriminatory registration, reporting, and disclosure requirements on
Citizens United that are not imposed on other, exempted media entities. That
decision does not merit rehearing by the en banc Court for at least two reasons.1
First, the Secretary fails to satisfy the stringent requirements for en banc rehearing. En banc review is highly disfavored and is reserved only for those rare
cases where a panel decision conflicts with circuit precedent or controlling Supreme Court authority, or where the decision involves an issue of exceptional
public importance. See Fed. R. App. P. 35; 10th Cir. R. 35.1(A). Neither factor is
met here. The Secretary makes no attempt to show that the panels narrow, asapplied holding conflicts with circuit precedent, and his attempt to manufacture a
conflict with the Supreme Courts decision in Citizens United v. FEC, 558 U.S.
310 (2010), is thoroughly refuted by the panels opinion. Nor does the panel deci1
Citations to Op. __ are to the Courts published slip opinion dated November
12, 2014. Citations to Pet. __ are to the Secretarys Petition for Rehearing and
for Rehearing En Banc, filed on November 26, 2014. Citations to Tr. __ are to
the certified transcript of the oral argument in this appeal on October 7, 2014, attached hereto as Exhibit A.
Document: 01019354934
Page: 5
sion qualify as one of exceptional importance requiring en banc review. While the
right to participate in political discourse on equal terms with other speakers is, of
course, exceptionally important, the panel vindicated that right on the narrowest
possible groundsfar narrower than Citizens United soughtand that factbound
decision does not warrant further review by the full Court.2
Second, the panels judgment reversing the district courts denial of a preliminary injunction breaks no new ground and is plainly correct under settled First
Amendment principles. As Citizens United explained in its principal brief, Colorado may not constitutionally burden the core political speech of an established
documentary filmmaker like Citizens United with onerous reporting and disclosure
requirements while exempting other favored speakersnewspapers, magazines,
and broadcast facilitieswho engage in identical political speech. Under the First
Amendment, restrictions distinguishing among different speakers, allowing
speech by some but not others, are [p]rohibited. Citizens United, 558 U.S. at
340. In holding that the First Amendment requires the Secretary to treat Citizens
United the same as the exempted media (Op. 17), the panel simply applied settled
2
Although the petition is styled as one for rehearing and rehearing en banc, the
text of the petition itself includes no argument in support of panel rehearing. This
response therefore addresses the arguments for rehearing en banc presented in the
Secretarys petition. To the extent that the Secretary seeks panel rehearing, the
Secretary has waived any argument that a significant issue has been overlooked or
misconstrued by the court. 10th Cir. R. 40.1(A); see also Fed. R. App. P.
40(a)(2).
Document: 01019354934
Page: 6
law to allow Citizens United to engage in protected political speech on the same
terms as other speakers ahead of the November 2014 elections.3
Indeed, to the extent the panel erred at all, it was in failing to apply strict
scrutiny to Colorados blatantly discriminatory reporting and disclosure regime.
Although the panel correctly recognized that the Supreme Court has consistently
rejected the proposition that the institutional press has any constitutional privilege
beyond that of other speakers (Op. 23 (quoting Citizens United, 558 U.S. at 352)
(emphasis in original)), the panel nonetheless failed to heed the Supreme Courts
direction that strict scrutiny applies where a facially discriminatory law single[s]
out the press for special treatment. Minneapolis Star & Tribune Co. v. Minn.
Commr of Revenue, 460 U.S. 575, 582 (1983). That error did not affect the outcome, however, because, as the panel correctly concluded, Citizens Uniteds claim
that its political speech is burdened relative to that of the institutional press is likely to succeed even under the less stringent exacting scrutiny standard.
The panel concluded that advertisements for Citizens Uniteds film were subject
to the reporting and disclosure requirements (see Op. 34) because Citizens United
had not established that similar advertisements would be exempt if published by a
newspaper or other exempted media entity. The Secretary has since conceded
that he historically exempts such advertisements when published by exempted
media entities, and thus under the panel opinion, Citizens Uniteds advertisements
will also be treated as exempt. See Letter from Theodore B. Olson to Elisabeth
Shumaker, Citizens United v. Gessler, No. 14-1387, at 1-2 (Oct. 24, 2014) (attaching correspondence from the Secretary).
Document: 01019354934
Page: 7
Accordingly, rehearing should be denied and the case remanded for the district court to resolve any remaining issues and enter final judgment on the merits.
ARGUMENT
2B
Rehearing en banc is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the
courts decisions; or (2) the proceeding involves a question of exceptional importance. Fed. R. App. P. 35(a). [O]nly in the rarest of circumstances should a
circuit court countenance the drain on judicial resources, the expense and delay
for the litigants, and the high risk of a multiplicity of opinions offering no authoritative guidance, that full circuit rehearing of a freshly-decided case entails. Air
Line Pilots Assn, Intl v. E. Air Lines, Inc., 863 F.2d 891, 925 (D.C. Cir. 1989)
(R.B. Ginsburg, J., concurring in the denial of rehearing en banc; internal quotation
marks omitted).
This Courts rules echo the federal judicial policy, making clear that en banc
review is disfavored and an extraordinary procedure. 10th Cir. R. 35.1(A). En
banc review is only appropriate in circumstances involving: (1) a panel decision
that conflicts with a decision of the United States Supreme Court or of this Court,
or (2) an issue of exceptional public importance. Id.
These stringent requirements are not met here. The Secretary fails to establish any conflict between the panel decision and decisions of the Supreme Court or
Document: 01019354934
Page: 8
of this Court. And although the issues in this case are certainly of public importance, the Secretary has failed to show that the panels narrow, as-applied
holding is so exceptional as to justify extraordinary en banc review. In any
event, the panel decision is substantially correct on the merits; and although, in another case, en banc rehearing might be appropriate to rectify the panels failure to
apply strict scrutiny, correcting that error would not change the outcome here.
I.
The Secretarys Petition Fails To Meet The Stringent Standards

For En Banc Review.
The Secretarys petition raises no argument that was not already addressed
in the panel decision and presumably considered by the full Court prior to publication. As this Courts rules explain, before any published panel opinion issues, it is
generally circulated to the full court and every judge on the court is given an opportunity to comment. 10th Cir. R. 35.1(A). Thus, under the Courts ordinary
procedures, the full Court had already had an opportunity to consider and comment
on the panel decision before it was published on November 12, 2014. See, e.g.,
United States v. Sturm, Nos. 09-1386, 09-5022, 2011 WL 6261657, at *1 (10th Cir.
Apr. 4, 2011) (ordering en banc rehearing sua sponte on the same day that the panel decisions were issued). The Court did not elect to rehear the case en banc then,
and en banc review remains inappropriate now.
1. The Secretary fails to identify any relevant conflict between the panels
Document: 01019354934
Page: 9
decision and a decision of the Supreme Court or of this Court. See 10th Cir. R.
35.1(A). The Secretary does not even contend that the panel decision conflicts
with any decision of this Court. Instead, the Secretary asserts that the panel decision is in direct conflict with Citizens United v. FEC, 558 U.S. 310 (2010),
which the Secretary mischaracterizes as somehow endorsing the discriminatory application of compelled disclosure requirements. Pet. 1, 3-5. The Secretary errs.
Citizens United involved a broad challenge to federal disclosure and disclaimer requirements, and the Supreme Court held only that those requirements
were not unconstitutional as applied in th[at] case. 558 U.S. at 371. In contrast,
the precise issue here was neither raised nor decided in Citizens United: Whether
Colorado may apply its reporting and disclosure requirements to Citizens United
and other speakers who do not own a printing press or broadcast facility while expressly exempting selected press entities from those burdensome requirements and
the chilling threat of enforcement liability. See, e.g., Op. 4 (noting that the question presented in this case concerns whether Citizens United is treated differently
from various media that are exempted from Colorados reporting and disclosure
regime). The Supreme Court in Citizens United did not consider, much less decide, whether reporting and disclosure requirements are valid when they are
applied, not evenhandedly to all speakers, but discriminatorily to a subset of speakers singled out by the State for disfavored treatment because they do not publish a
6
Document: 01019354934
Page: 10
print periodical or own a broadcast station.

Under Colorado law, only those disfavored speakers are required to register
with the State, file periodic reports, and submit to the threat of enforcement liability for infractionsa regime of speech regulation that institutionalizes the very
type of identity-based discrimination expressly prohibited by the Court in Citizens
United. See 558 U.S. at 340 (Speech restrictions based on the identity of the
speaker are all too often simply a means to control content.). Indeed, the Secretary concedes that Citizens United did not address this scenario, noting that the
Supreme Courts disclosure analysis was not entity-focused and did not consider[] the identity or corporate form of the speaker. Pet. 4. And although the
Secretary posits that the Supreme Court was surely aware that arguments about
unequal treatment could be raised in the disclosure context (id. at 4-5), such speculation plainly is insufficient to create a conflict between the panels narrow
holding and binding Supreme Court authority. See 10th Cir. R. 35.1(A).
The Secretary argues that Colorados reporting and disclosure requirements
turn primarily on the form that the speech takes and the manner in which it is distributed. Pet. 7. Even if that were true, however, the requirements would still
violate the Supreme Courts admonition that the First Amendment precludes constitutional lines based on the particular media or technology used to disseminate
political speech from a particular speaker. Citizens United, 558 U.S. at 326. At
7
Document: 01019354934
Page: 11
the oral argument, for example, the Secretarys attorney explained that the reporting and disclosure requirements would apply if electioneering communications and
independent expenditures were printed on a glossy mailer (Tr. 23:21) or a newspaper insert (Tr. 20:17-21:5) or distributed via DVD (Tr. 92:17), but would not
apply if identical communications were printed on the pages of a newspaper (Tr.
23:20) or a newspapers online edition (Tr. 26:13-18) or an Internet blog (Tr. 27:928:7). In other words, the Secretary seeks to draw, and then redraw, limits on
core political speech through ad hoc application of Colorados discriminatory reporting and disclosure requirements. Citizens United, 558 U.S. at 326. The panel
correctly rejected the Secretarys ad hoc distinctions, and the Secretary again fails
to show a conflict with any decision of the Supreme Court.
2. While the right to be free from discriminatory burdens on political speech
is undoubtedly an issue of public importance, the Secretary has not shown that the
panels narrow vindication of that right here is sufficient to justify en banc review.
See 10th Cir. R. 35.1(A). The panel expressly declined to reach Citizens Uniteds
facial challenge to Colorados reporting and disclosure regime (Op. 17-18), declined to decide whether strict scrutiny should apply (id. at 19), and declined to
grant injunctive relief against application of Colorados reporting and disclosure
requirements to Citizens Uniteds advertisements (id. at 5), although the Secretary
has since conceded that point (see Letter from Theodore B. Olson to Elisabeth
8
Document: 01019354934
Page: 12
Shumaker, Citizens United v. Gessler, No. 14-1387, at 1-2 (Oct. 24, 2014)). The
narrowness of the panels holding counsels strongly against en banc review. See,
e.g., Kimberlin v. U.S. Dept of Justice, 351 F.3d 1166, 1166 (D.C. Cir. 2003)
(Tatel, J., concurring in denial of rehearing en banc) (rehearing not warranted given [the] extraordinarily narrow scope of the panel decision).
The Secretary argues that the panel decision creates the type of entity-based
distinction that troubled the Supreme Court in Citizens United I, and imports that
distinction in Colorado law where it did not previously exist. Pet. 2. Neither contention has merit, much less creates an issue of exceptional importance warranting
en banc review. Indeed, the only conclusion that can be drawn from the Secretarys admission that entity-based distinction[s] run afoul of Citizens United is
that the panel decision arrived at the correct outcome. As a result of the panel decision, Citizens United now enjoys the same exempt status under Colorado law that
it enjoys under federal law. See App. at A33 (Federal Election Commission concluding that [t]he distribution of documentary films to the public is the legitimate
press function of an entity, such as Citizens United, that regularly produces news
stories, commentary, or editorials in the form of films). That result obviously is
not in conflict with Citizens United.
Moreover, the Secretarys strained argument that the panel decision creates a
distinction based on a speakers identity where none existed in Colorado law (Pet.
9
Document: 01019354934
Page: 13
5-8) is flatly wrong. Colorados reporting and disclosure law is discriminatory on

its face. It exempts favored speakers in the traditional media (newspapers, magazines, and broadcasters) while subjecting new media voices to its onerous
burdensexcept, of course, where the Secretary, in the exercise of his limited
powers to construe Colorado law, has determined not to impose those burdens, as
with online editions of periodicals and Internet blogs of every stripe (but not documentary films distributed over the Internet). See Op. 10-11; see also Tr. 26-28.
The vagueness and malleability of Colorados media exemptions and the Secretarys uneven enforcement of those exemptions hardly undermine the panels
judgment; they validate it.
II.
The Panels Holding Is Compelled By Binding Supreme Court

Authority.
In addition to failing to meet the standards for rehearing en banc, the petition
should be denied because the panels decision is compelled by binding Supreme

Court precedent.
Although the Secretary mischaracterizes this case as simply involving the
legality of disclosure requirements, this case is about the right to engage in political
speech on equal terms. As the panel recognized, Colorado lacks a sufficient interest to discriminate against Citizens United by burdening its political speech while
exempting similarly situated media entities from those burdens. Op. 29-30. In so
10
Document: 01019354934
Page: 14
holding, the panel decision brings Colorado law into compliance with the First
Amendments prohibition on distinguishing among different speakers, at least as
applied to Citizens United. Citizens United, 558 U.S. at 340.
The Secretary does not even attempt to distinguish Minneapolis Star &
Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983), which
struck down a state law that applied differentially to certain favored media entities. Id. at 585. There, the Court held that where a facially discriminatory law
single[s] out the press for special treatment, such a law suggests that the goal of
the regulation is not unrelated to suppression of expression, and therefore is presumptively unconstitutional. Id. at 583, 585. That holding is unaffected by
Citizens United, which did not present a challenge to reporting and disclosure requirements on the ground that they applied differentially to certain speakers but not
others.
The Secretary accuses the panel of adding to an unworkable . . . thicket of
rulings applying Colorados media exemptions (Pet. 8-11), and claims that the
panel decision fails to provide practical guidance, clarity, and stability (id. at
10-11). But it is clear that as applied to Citizens United, the panel decision is both
correct and easily administrable because it eliminates the Secretarys artificial distinction between favored media entities in the traditional press and a
documentary filmmaker with an extensive history of producing and distributing
11
Document: 01019354934
Page: 15
dozens of films exploring controversial political organizations, personalities, and

policies in the United States and abroad. Indeed, that is exactly the result that the
Federal Election Commission reached when it construed the parallel media exemption in federal law to apply to Citizens United. See App. at A32 ([G]iven that
Citizens United produces documentaries on a regular basis, the Commission concludes it is a press entity for the purposes of this advisory opinion.). The panels
as-applied decision is no less workable.
To the extent the application of Colorados media exemptions has become
unworkable or lacks clear guidance, it is the result of the Secretarys nebulous interpretation and uneven enforcement of those exemptions. For example, during the
oral argument, when asked the difference under Colorado law between an exempt
newspaper or magazine and another non-exempt form of publication, the Secretarys attorney offered only that I know it when I see it, and admitted that the
Secretary has not promulgated regulations on point. Tr. 23:7-24:4. Similarly, in
discussing whether a blog engaged in political speech would be exempted even
though it is not printed, Colo. Const. art. XXVIII, 2(8)(b), the Secretarys attorney explained that the answer depends on a factbound inquiry into the blogs
general attributes and the manner of the communication, including how frequently it is updated. Tr. 27:7-28:7.
Similarly, the Secretarys attorney admitted at oral argument that the defini12
Document: 01019354934
Page: 16
tions of independent expenditures and electioneering communications are subject

to the Secretarys discretion. For example, when asked whether a book would
qualify as an independent expenditure or electioneering communication, the Secretarys attorney explained that the focus of the reporting and disclosure
requirements is on so-called mass media, which, as defined by the Secretary, excludes books.
Tr. 6:6-17; 13:22-14:6; 28:18-29:19.
The Secretary has only
himself to blame for any unworkab[ility] and confusi[on] (Pet. 8) in a regime of

speech regulation that turns on such arbitrary distinctions. Rather than creating
confusion, the panel decision properly protected Citizens Uniteds ability to participate in core political speech on the eve of an important election.
To the extent the panel erred at all, it was in failing to apply strict scrutiny to
Colorados discriminatory reporting and disclosure requirements. See Op. 18-19.
Although the Supreme Court in Citizens United applied a less-stringent exacting
scrutiny standard in evaluating a facial challenge to disclosure requirements that
was unrelated to their discriminatory application, that case and others make clear
that laws that discriminate against speakers based on their identity are subject to
strict scrutiny. See Citizens United, 558 U.S. at 340; Minneapolis Star, 460 U.S. at
583. And because this case involves a challenge to disclosure requirements that
are applied differentially on the basis of a speakers identity, those discriminatory
burdens on speech must survive strict scrutiny. The panel erred in applying a less13
Document: 01019354934
Page: 17
er form of scrutiny, but that error did not affect the judgment and therefore does
not merit en banc review in this case. See Op. 19.4
In this regard, the panel majority erred in effectively concluding that Colorados discriminatory regulations were content-neutral. See Op. 19. Under Turner
Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994), laws that impose differential burdens upon speech because of its content are analyzed under the most
exacting scrutiny. Id. at 642. Intermediate scrutiny applies only to regulations
that are unrelated to the content of speech. Id. Although Turner permitted differential treatment based on the technological difference between cable and
broadcast television, it was clear that the differential treatment in that case was not
based on the content of the speech at issue. Id. at 643-44. Here, by contrast, the
Secretary has conceded that whether an entity will actually be exempt depends on
whether the speech can be easily identified and evaluated by the audience. Op. 2526. Colorados regulations, as interpreted by the Secretary, therefore expressly favor speakers with well-known, easily identified viewpoints over the speech of
Even if exacting scrutiny were the correct standardand even accepting the
Secretarys asserted informational justification for treating some media entities
differently from othersthe hodgepodge of exceptions enshrined in Colorado law
comes nowhere close to satisfying the substantial relation requirement under exacting scrutiny. Citizens United, 558 U.S. at 366-67. The Secretary fails to
establish that exempting newspapers, magazines, periodicals, and the owners of
broadcast facilities from the disclosure requirements, but not other similar media
entities, bears a substantial relation to the States asserted informational interest.
14
Document: 01019354934
Page: 18
obscure speakers, those who are new to the marketplace of ideas, or those whose
viewpoints are simply unknown.5
CONCLUSION
In our democratic republic, where the right to vote is fundamental, courts
of appeals routinely decide appeals about elections and voting without granting en
banc review. In re Morgan, 717 F.3d 1186, 1194 (11th Cir. 2013) (Pryor, J., respecting the denial of rehearing en banc).
The Secretary has identified no
compelling reason to prolong this appeal and burden the full Court with en banc
review of a panel decision that is narrowly decided and reaches the correct result.
For the foregoing reasons, the panel should decline to rehear the case, and this
Court should deny rehearing en banc.
It is also impossible to reconcile Colorados apparent hostility to obscure

speakers or unknown viewpoints with McIntyre v. Ohio Elections Commission,
514 U.S. 334 (1995), in which the Court struck down a law prohibiting anonymous
campaign literature and held that anonymous political speech is part of an honorable tradition of advocacy and of dissent. Id. at 357.
15
Document: 01019354934
Page: 19
Respectfully submitted,
MICHAEL BOOS
MichaelBoos@citizensunited.org
CITIZENS UNITED
1006 Pennsylvania Avenue, S.E.
Telephone: (202) 547-5420
Fax: (202) 547-5421
s/ Theodore B. Olson
THEODORE B. OLSON
TOlson@gibsondunn.com
MATTHEW D. MCGILL
MMcGill@gibsondunn.com
AMIR C. TAYRANI
ATayrani@gibsondunn.com
LUCAS C. TOWNSEND
LTownsend@gibsondunn.com
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Telephone: (202) 955-8500
Fax: (202) 467-0539
Counsel for Appellant Citizens United

Dated: December 11, 2014
Document: 01019354934
Page: 20
CERTIFICATION OF DIGITAL SUBMISSION AND ANTI-VIRUS SCAN

I hereby certify that I have scanned for viruses the Portable Document Format version of the attached document, using Microsoft Forefront (version
4.5.216.0, updated December 11, 2014), and according to that program, the document was free of viruses. I further certify that I have not made any privacy
redactions in the attached document. I further certify that the Portable Document
Format version that was submitted to the court is an exact copy of the written document filed with the Clerk.
s/ Theodore B. Olson
THEODORE B. OLSON
Document: 01019354934
EXHIBIT A
Page: 21
Document: 01019354934
Page: 22
Capital Reporting Company

Citizen United vs. Gessler 10-07-2014
1
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
------------------------:
CITIZENS UNITED,
: Case No.
: 14-1387
Plaintiff-Appellant, :
:
v.
:
:
GESSLER,
:
:
Defendants-Appellee. :
------------------------:
Denver, Colorado
Tuesday, October 7, 2014
The hearing in the above-entitled matter

before HONORABLE HARRIS HARTZ, HONARABLE TIMOTHY
TYMKOVICH, and HONORABLE GREGORY PHILLIPS
heard at the United States Court of Appeals
for the Tenth Circuit, Byron White U.S.
Courthouse, 1823 Stout Street, Denver, Colorado
80257, when were present on behalf of the
respective parties:
(866) 448 - DEPO

www.CapitalReportingCompany.com 2014
Document: 01019354934
Page: 23

2
1
A P P E A R A N C E S
On behalf of Colorado Secretary of State:
MATTHEW D. GROVE, ESQ.

Deputy Attorney General
1525 Sherman Street, Seventh Floor
Denver, CO 80203
4
5
On behalf of Plaintiff-Appellant:
6
7
8
THEODORE B. OLSON, ESQ.

Gibson Dunn
1050 Connecticut Avenue, NW
Washington, DC 20036-5306
9
10
11
12
13
14
15
16
17
18
19
20
21
22
(866) 448 - DEPO

Document: 01019354934
Page: 24

3
1
C O N T E N T S
2
3
4
PAGE
Matthew D. Grove, Esq.,
Counsel for Colorado Secretary of State
Theodore Olson, Esq.,

Counsel for Citizens United
38
Mr. Grove,
Rebuttal
49
Mr. Olson,
Rebuttal
69
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
(866) 448 - DEPO

Document: 01019354934
Page: 25

4
1
P R O C E E D I N G S
JUDGE HARTZ:
I guess I owe an apology
for the unusual procedure that we're going to
start with today.
and trying to get through the statutes, it seemed
like it would be useful for us to be sure we're
all starting on the same page regarding what the
statute says.
But, after reading the briefs
So there'll be -- so I'm going to ask
10
the counsel for the secretary of state to come
11
first and we'll ask some questions about that.
12
Then we will -- this is not for argument about
13
constitutionality, just about the meaning of the
14
statute.
15
the appellant to argue the merits and the clock
16
will not be running while you're answering these
17
questions.
Then we'll start with Citizens United as
18
MR. GROVE:
19
JUDGE HARTZ:
20
MR. GROVE:
21
JUDGE HARTZ:
22
Thank you Your Honor.

Okay.
Fire away.
Go ahead and identify
yourself for the record, although I should have
(866) 448 - DEPO

Document: 01019354934
Page: 26

5
1
called the case:
Gessler.
3
4
5
14-1387, Citizens United v.
MR. GROVE:
Matthew Grove on behalf of
the secretary of state.

JUDGE HARTZ:
Great.
So the definition
of electioneering communication is:
communication broadcasted by television or radio,
printed in a newspaper or on a billboard, directly
mailed or delivered by hand to personal residences
10
or otherwise distributed that unambiguously refers
11
to any candidate."
12
any candidate.
13
communication to attack or support a candidate.
14
"any
First, unambiguously refers to
That does not require the
MR. GROVE:
That's correct.
It's a
15
timing requirement only and an unambiguous
16
reference requirement only.
17
JUDGE HARTZ:
You had a regulation
18
saying it did, and that was overturned by the
19
court of appeals?
20
21
22
MR. GROVE:
Yes, that precise issue is
actually pending on cert in front of -JUDGE HARTZ:
Okay, that's what the
(866) 448 - DEPO

Document: 01019354934
Page: 27

6
1
question -- so has the Supreme Court of Colorado
granted cert?
MR. GROVE:
It has not.
So presently
the functional equivalent requirement that was in
our regulation is -- does not exist.
JUDGE HARTZ:
Okay.
It also has
language, "Or otherwise distributed."
broad.
of that clause other than the exemptions that are
10
That's very
Are there any limitations on the meaning
in the statute?
11
MR. GROVE:
Our view is that that clause
12
as a whole, much like the FEC -- sorry, the FECA's
13
electioneering communication provision is focused
14
on mass media activities, and so something like a
15
book, for example, I don't think would be included
16
but what Citizens United is doing here in our view
17
is.
18
JUDGE HARTZ:
Okay.
Is there a
19
regulation that describes that limitation on what
20
distributed means?
21
22
MR. GROVE:
I don't think so.
No we
don't have a regulation on that.
(866) 448 - DEPO

Document: 01019354934
Page: 28

7
1
JUDGE HARTZ:
Okay, and electioneering
communications refer -- that term refers only to
communications regarding persons on the ballot in
Colorado, is that correct?
MR. GROVE:
That's correct.
It's
focused on -- this is only focused on state or, I
suppose countywide or municipal also.
8
9
10
JUDGE HARTZ:
So something attacking or
supporting a Delaware candidate would not be an

electioneering communication under the act?
11
MR. GROVE:
12
JUDGE HARTZ:
Not under Colorado law, no.

Okay.
Then I have some
13
questions about donors and donations and I'll
14
later be asking if any of these answers would
15
differ for an independent expenditure as opposed
16
to an electioneering communication. But are all
17
payments considered donations?
18
of payment that would not be considered a donation
19
if it meets the other requirements?
20
21
22
MR. GROVE:
Is there any type
You mean a payment to the
entity who is distributing the communication?

JUDGE HARTZ:
Yes.
(866) 448 - DEPO

Document: 01019354934
Page: 29

8
1
MR. GROVE:
Well, not for purposes of
disclosure because of the earmarking requirement.
If the individual donor's name is going to be
disclosed as a funder of the electioneering
communication, we have an election rule that says
that it has to be specifically earmarked for that
communication and I think it also has to be over
$250.
JUDGE HARTZ:
What if, in this case we
10
have DVDs, if someone buys a DVD, would that be a
11
payment?
12
Would that be a donation?

MR. GROVE:
No.
We don't consider that
13
a donation to fund.
14
the film in this case to be on the front end, that
15
you fund the production beforehand, not that if
16
you go out and buy it or if you buy Citizens
17
United T-shirts afterwards, that that would be
18
funding it.
19
We consider the funding of
JUDGE HARTZ:
Okay, so that would be,
20
that would not be a donation for the
21
electioneering matter.
22
MR. GROVE:
Yeah, the --
(866) 448 - DEPO

Document: 01019354934
Page: 30

9
1
JUDGE HARTZ:
MR. GROVE:
I'm sorry, go ahead.

In our view, buying the DVD
afterwards is buying a product.
"I'm buying this because I really wanted to fund
Citizens United's efforts to put this movie out."
JUDGE HARTZ:
MR. GROVE:
It's not saying,
What if you -If you're interested in the
product.
JUDGE HARTZ:
What if you bought a lot
10
of them, or promised to buy them before it was put
11
out?
12
MR. GROVE:
There's certainly -- there's
13
certainly a lot of hypotheticals that you could go
14
through here, and I don't think that we have that
15
situation here.
16
buy a lot of them and implicit in that promise
17
was, "Sure, I'll buy 5,000 of them and in doing so
18
give you $50,000 towards your -- towards making
19
this movie", that that, that might be considered
20
an earmark.
21
22
I think if there was a promise to
JUDGE HARTZ:
Okay.
Now, there's an
earmark definition in the independent expenditure
(866) 448 - DEPO

Document: 01019354934
Page: 31

10
1
section.
Is that also the definition for earmarks
for electioneering communications?
is:
that directs the transmission by the recipient of
all or part of a donation to a third party for the
purpose of making one or more independent
expenditures in excess of a thousand."
also apply?
earmark for electioneering communications?
The definition
"A designation, instruction or encumbrance
10
Does that
Is that how you've applied the term
MR. GROVE:
I think that's fair, and I
11
think we would also pull in the FEC's definition
12
which is discussed in the McCutcheon case which
13
talks about, you know, it can be oral or written,
14
it can be expressed or implied.
15
if I --
16
JUDGE HARTZ:
The point is that
What can be oral or
17
written, expressed or implied?
18
MR. GROVE:
The earmark.
And so, if I
19
give you money to produce a film and I say, "This
20
is for the film that you guys are planning on
21
distributing in Colorado to influence Colorado's
22
election," that would be sufficient.
It doesn't
(866) 448 - DEPO

Document: 01019354934
Page: 32

11
1
have to say, you know, it can be -- it doesn't
have to be, you know, precise on a knife's edge, I
suppose is what I'm saying.
But it does have to be very clear that
Citizens United wouldn't just say, "We're raising
money this year to fund our advocacy activities.
Please donate."
That would be more of a general treasury donation.
And so, the line there is specifically supporting
That wouldn't be an earmarking.
10
the communication, specifically funding the
11
communication versus more generally supporting the
12
company treasury.
13
interpretation of earmarking.
14
That's the secretary's
JUDGE HARTZ:
How precise?
If you say,
15
"This is money you can use for Rocky Mountain
16
Heist or to pay overhead for your D.C. office, or
17
your Virginia office," is that -- you're not
18
directing it.
19
use it for that and other things.
20
earmark?
21
22
You're giving them permission to
MR. GROVE:
Is that an
I would say -- I would say
no, because it leaves -- if the funding leaves the
(866) 448 - DEPO

Document: 01019354934
Page: 33

12
1
use of the money to the discretion of the entity
that is engaging in the electioneering
communication or expenditure, then it's not
earmarked.
and decide to use it to buy office paper.
Citizens United could take that money
JUDGE HARTZ:
MR. GROVE:
But that doesn't mean that
they have to use it for Rocky Mountain Heist.
JUDGE HARTZ:
10
follow- -up questions.
11
MR. GROVE:
12
JUDGE HARTZ:
13
Okay.
That answered a few

Let me -- whoops.
(To colleague.)
Okay.
Do you need to amend your
answer?
14
MR. GROVE:
I don't.
I should just say
15
that the secretary of state's office, of course,
16
as the state agency in charge of administering the
17
campaign finance law, has a say on this and these
18
are our interpretations. But ultimately state
19
courts have the final interpretive authority for
20
our act.
21
22
JUDGE HARTZ:
Yeah.
Okay, let me ask
you about expenditures and is there any -- well,
(866) 448 - DEPO

Document: 01019354934
Page: 34

13
1
I'll read the definition:
"Any
purchase, payment distribution, loan, advance,
deposit or gift of money by any person for the
purpose of expressly advocating the election or
defeat of a candidate."
where the money can be spent or how the message is
communicated?
8
9
MR. GROVE:
Is there any limit on
Well, in terms of -- in
terms of disclosure, there's -- I think that's
10
what you're asking.
Is there any way that I as an
11
entity could spend money that wouldn't require me
12
to disclose earmark donations.
13
JUDGE HARTZ:
14
MR. GROVE:
Yes.
If it qualifies as an
15
electioneering communication and the donation is
16
earmarked for that purpose, then that's where the
17
disclosure line falls.
18
JUDGE HARTZ:
19
22
I'm talking
about independent expenditures now.
20
21
I'm sorry.
MR. GROVE:
It's generally the same
rule.
JUDGE HARTZ:
Okay.
And when I asked is
(866) 448 - DEPO

Document: 01019354934
Page: 35

14
1
there any limit on how the message is
communicated, does that mean it's limited to mass
media?
expenditure couldn't go for a book?
say a book is not mass media?
Does that mean that an independent
MR. GROVE:
JUDGE HARTZ:
Because you
Yes, that's our position.

And I want to make sure
what a corporation -- what the restrictions are.
If a corporation makes an independent expenditure,
10
what are the disclosure, disclaimer and other
11
requirements that follow from that?
12
corporation have to do?
13
MR. GROVE:
What does the
So they are slightly
14
different for electioneering communications and
15
expenditures.
16
communications.
17
about this case in particular, and this is
18
addressed in the brief.
19
communications, it is the expenditure on the
20
communication itself, like in this case, creating
21
the film is not something that is disclosable
22
because there is no communicative aspect to it
I'll start with electioneering

Well, and maybe we should talk
For electioneering
(866) 448 - DEPO

Document: 01019354934
Page: 36

15
1
before it's distributed to the public.
advertisements, on the other hand, promoting the
film --
4
5
6
JUDGE HARTZ:
The
I'm sorry, repeat that
again.
MR. GROVE:
So, Citizens United has said
they're going to spend something like $550,000 on
creating the film.
is $550,000.
Their film production budget
10
JUDGE HARTZ:
11
MR. GROVE:
Okay.
There is, until the film is
12
released, no -- there's no distribution to the
13
public of that, and so, there's been no, in our
14
view, electioneering communication at that point.
15
JUDGE HARTZ:
16
MR. GROVE:
Okay.
However, they're also going
17
to spend $225,000 promoting the film and those
18
communications they've alleged will contain things
19
like -- that they'll contain electioneering
20
communications.
21
office and there'll be a TV ad, or, I don't know -
22
- a banner on the internet.
They'll identify candidates for
I'm not exactly sure
(866) 448 - DEPO

Document: 01019354934
Page: 37

16
1
what form that they'll take.
record.
That's not in the
So for an electioneering communication,
the first $550,000 of production budget is not an
electioneering communication.
to promote the film, to the extent that it
contains communications that are consistent with
the electioneering communication law, will be
electioneering communications and have to be
10
11
The $225,000 spent
disclosed.
Now the number of reports, I suppose
12
that's another question here.
13
three at this stage.
14
communications schedule is published and it's
15
actually -- it's the same as the normal disclosure
16
schedule for all sorts of committees, candidate
17
committees, everything across the board in
18
Colorado, and there are disclosure dates I think
19
on the 15th, the 29th and then a month after the
20
election, which is December 4th.
21
22
We're talking about
The electioneering
And so, in those, depending on whether

things are earmarked or not, there will have to be
(866) 448 - DEPO

Document: 01019354934
Page: 38

17
1
disclosure report.
there are not earmarkings, then the disclosure
would simply have to be, "We spent $225,000 on
marketing and this is how we did it."
involved, say, them spending $225,000 on an
advertising firm but then went and took the money
and spent it as they wished, it would be a single
entry.
9
10
11
Primarily I think that if
JUDGE HARTZ:
If that
And no disclaimer
requirements in that circumstance?

MR. GROVE:
Well, there certainly would
12
be a disclaimer requirement on the -- on the ads
13
of themselves.
14
15
16
JUDGE HARTZ:
Okay.
Now, what about for
independent expenditure?
MR. GROVE:
So for independent
17
expenditure, there is more involvement certainly.
18
Our position would be that once you're making --
19
once you've engaged in making the movie, that you
20
need to create an independent expenditure
21
committee which involves the creation of a
22
separate bank account and then donations to and
(866) 448 - DEPO

Document: 01019354934
Page: 39

18
1
expenditures from that bank account would have to
be disclosed.
Now, that entire donation to it could
come from Citizens United's general treasury and
which then, you know, that acts as a funnel and
they then spend the money in that bank account on
the production of the film.
8
9
JUDGE HARTZ:
So the production expenses
are considered independent expenditure?
10
MR. GROVE:
They would be, yes, because
11
the definition of independent expenditure is
12
somewhat broader than the definition of
13
electioneering communication.
14
JUDGE HARTZ:
15
MR. GROVE:
Okay.
And then, the committee
16
reporting requirements are essentially the same in
17
the two.
18
I mean, the timing.

JUDGE HARTZ:
As I understand your regs,
19
if the money is spent only for independent
20
expenditures, then it is not a political committee
21
subject to those disclosure requirements.
22
correct?
Is that
(866) 448 - DEPO

Document: 01019354934
Page: 40

19
1
MR. GROVE:
JUDGE HARTZ:
That's correct.
So is there anything here
that could make Citizens United responsible for
the disclosures required by political committees
as long as they don't contribute to a candidate in
Colorado.
MR. GROVE:
I think absent any
coordination with the candidate that there
wouldn't be any sort of independent political
10
11
committee obligation.
JUDGE HARTZ:
Okay, and now let me ask
12
about the exemptions for news articles, editorial
13
endorsements and communications in the regular
14
course and scope of business.
15
Sometimes after a newspaper runs a very
16
favorable or negative -- favorable story in
17
support of a candidate or maybe a negative story
18
against a candidate, somebody supporting that
19
candidate may wish to place an ad just reporting,
20
just duplicating the editorial.
21
22
You know, the Rocky Mountain News

endorses a candidate.
So somebody supporting that
(866) 448 - DEPO

Document: 01019354934
Page: 41

20
1
candidate will say, "I'll place an ad in the
Denver Post showing that the Rocky Mountain News
endorsed the candidate and ran that as an ad."
that an independent expenditure?
identical to what was in the paper that ran it
originally.
MR. GROVE:
Is
The content is
So if the Denver Post runs
that ad, the Denver Post is not engaging in
independent expenditure.
But the person who funds
10
that ad likely would be.
That's the same with any
11
advertisement.
12
JUDGE HARTZ:
Okay.
Even though the
13
content is identical to what it was in the Rocky
14
Mountain News?
15
16
17
MR. GROVE:
That's right.
I mean, an
advertisement is subject to disclosure, period.

JUDGE HARTZ:
Okay.
What if Citizens
18
United printed a newspaper insert on its own and
19
paid to have it inserted in the newspaper? Is that
20
an independent expenditure?
21
22
MR. GROVE:
So let me understand it.
the Denver Post runs it normally and Citizens
(866) 448 - DEPO

So
Document: 01019354934
Page: 42

21
1
United runs essentially an advertising insert that
they paid to put in?
JUDGE HARTZ:
MR. GROVE:
Yes.
Yes.
That would have to be
disclosed by Citizens United but not by the Post.
JUDGE HARTZ:
And what if Parade
Magazine did that?
I don't know quite how their
business model works.
don't know if they paid the newspaper to insert
But they have ads there.
10
Parade Magazine there.
11
if it says anything about a candidate, supporting
12
or whatever, is that an independent expenditure by
13
Parade Magazine?
14
MR. GROVE:
Is Parade Magazine then --
My understanding of Parade
15
Magazine comes mainly from shaking it out of the
16
paper.
17
JUDGE HARTZ:
Well, let's just say --
18
let's assume that it sells the ads.
It's on its
19
own, and the Post just wants to -- and makes money
20
on those ads but says, "We're going to place this
21
in newspapers around the country," but they pay
22
the publisher of the newspaper to insert it.
If
(866) 448 - DEPO

Document: 01019354934
Page: 43

22
1
that were the case, would Parade Magazine have to
report this sort of thing as an independent
expenditure or perhaps an electioneering
communication?
MR. GROVE:
I don't think so, because of
the nature of what Parade Magazine is and I don't
want to cross over into the argument side of this.
JUDGE HARTZ:
MR. GROVE:
10
Yes.
So I could address that
later.
11
JUDGE HARTZ:
Okay, and someone who
12
submits an op-ed, say the head of some political
13
organization writes an op-ed that the newspaper
14
publishes.
15
is there any need for any disclosure about the
16
sources of funding for that organization even if
17
it were to support the op-ed?
18
19
20
Does that person, who wrote the op-ed,
MR. GROVE:
I would say that if the op-
ed is not placed as a paid advertising vendor.

JUDGE HARTZ:
No, it's done with the --
21
you know, a newspaper likes to have lots of
22
different -- often likes to have a variety of
(866) 448 - DEPO

Document: 01019354934
Page: 44

23
1
opinion expressed.
somebody who runs an advocacy organization of some
sort.
organization.
There's no need for any disclosure by that
5
6
So they get an opinion from
Is that correct?
MR. GROVE:
As long as it's not an ad,
that's correct.
JUDGE HARTZ:
Okay, and what determines
whether a publication is a magazine or a
newspaper?
Could Citizens United just label a
10
flyer Citizens United Gazette and avoid the
11
disclosure requirements then?
12
MR. GROVE:
I want to say I know it when
13
I see it but, you know, that doesn't have the
14
greatest history.
The --
15
JUDGE HARTZ:
16
regarding how that's determined.
17
MR. GROVE:
There are no regulations

Is that correct?
Maybe that's the best
18
answer, yes.
I mean, I can tell you -- I can
19
certainly tell you what is and wouldn't be.
20
Clearly the New York Times is a newspaper, a
21
periodical.
22
in my mailbox or is taped to my door that is one
Clearly a glossy mailer that appears
(866) 448 - DEPO

Document: 01019354934
Page: 45

24
1
page and is focused solely on a candidate for
office, is not.
there?
is, is it -- well, let me just leave it there.
Yes.
Is there a lot of middle ground
But I think the best line to draw
JUDGE HARTZ:
Now, what about an
advertisement by one media, medium and another.
Say the Washington Post has an exposabout the
candidate and runs an ad on the radio or on TV
saying "Buy the Sunday Washington Post, read about
10
your congressman," or something like that.
11
should move that to Colorado so it comes under
12
their statute. Does that come under the media
13
exemption in Colorado or is that an ad placed and
14
therefore becomes an independent expenditure or
15
campaign electioneering communication?
16
MR. GROVE:
We
It depends on how the
17
Washington Post funds that.
If the Post, and
18
again I'm wary about crossing over into the
19
argument side, so I'll just be brief on this. If
20
the Washington Post were to go out and collect
21
money and say, "Hey, we're going to put together
22
this hit piece or a puff piece on this particular
(866) 448 - DEPO

Document: 01019354934
Page: 46

25
1
candidate.
this investigative report," that's not the way
that newspapers normally operate, and so it's not
normally a disclosure we would expect to see.
Why don't you raise money so we can do
JUDGE HARTZ:
But there are things to be
disclosed even if there were no specific donors
who supported the independent expenditure.
that correct?
MR. GROVE:
Isn't
Well sure, they're -- you
10
could conceivably disclose how much it cost to
11
place the ad for example, but --
12
JUDGE HARTZ:
13
14
Okay.
Well, you're not
sure, I think.
MR. GROVE:
Yeah.
We're getting deep
15
into the grey area there that I haven't thought
16
about thoroughly.
17
18
JUDGE HARTZ:
Okay.
What about the
online edition of the Denver Post?
19
MR. GROVE:
20
JUDGE HARTZ:
That's exempt.
Why is that?
Well, not a
21
constitutional argument but why under the statute
22
is that not covered?
(866) 448 - DEPO

Document: 01019354934
Page: 47

26
1
MR. GROVE:
The medium matters to some
extent but it's -- in either an electioneering
communication or expenditure, covers writings in
general, and so whether it's the physical paper
edition of the Denver Post or the online edition I
don't think makes a difference.
to a political blogger and that may have been your
next question.
JUDGE HARTZ:
The same applies
Well, I want to make sure
10
I understand what the deal is with the online
11
edition.
You're saying that's considered printed?
12
MR. GROVE:
13
JUDGE HARTZ:
Yes, essentially.
So the exemptions, any
14
news articles, editorial endorsements, opinions,
15
commentary, writings or letters to the editor
16
printed in a newspaper, et cetera, it's printed
17
even if it's online?
18
MR. GROVE:
19
JUDGE HARTZ:
Yes.
And what if it's public --
20
well, a newspaper that only has online editions,
21
is that still printed online?
22
MR. GROVE:
Yeah, that's similar to the
(866) 448 - DEPO

Document: 01019354934
Page: 48

27
1
blogger exemption example that I just raised. As
long as it has -- there's a difference between
advertising and reporting in this context, and I
understand the lines get blurred, particularly in
the modern age.
Court's is equipped to draw.
7
8
9
But those are lines that the
JUDGE HARTZ:
about blogs also.
Okay.
Go ahead and talk
You anticipated that question.
MR. GROVE:
So if they have the general
10
attributes of are they regularly updated, for
11
example, do they appear just before the election
12
and disappear afterwards, do they have aspects --
13
and it doesn't matter whether they take an
14
ideological point of view.
15
be devoted, and many are, to promoting the
16
Republicans, promoting the Democrats, the Green
17
Party and the Libertarians, whoever.
18
the issue. It's not the viewpoint or the content
19
that makes a difference.
20
The whole blog could
That's not
It's the manner of the communication and
21
the way in which it's updated.
I mean, there are
22
political blogs in Colorado that certainly fall
(866) 448 - DEPO

Document: 01019354934
Page: 49

28
1
within this definition that are never printed on
any sort of physical medium, unless you actually
print them off.
assuming that people spend more than the
electioneering communication on them, which I
think is doubtful in many cases, would qualify as
exempt.
8
9
10
And so, those, in our view, even
JUDGE HARTZ:
So it's the same sort of
distinction that you make between a flyer and a

newspaper, that --
11
MR. GROVE:
You know, there's a good
12
case on this that we didn't cite here but we cited
13
below called Bailey v. State of Maine Commission
14
on Governmental Ethics that actually talks the way
15
to distinguish a political blog and basically the
16
way to distinguish an attack blog versus a news
17
blog.
18
JUDGE HARTZ:
And below you indicated
19
that a book could never be an independent
20
expenditure or an electioneering communication.
21
Is that correct?
22
it's not in the mass media?
And you're saying that's because
(866) 448 - DEPO

Document: 01019354934
Page: 50

29
1
MR. GROVE:
That's right.
Just a
moment. So my answer's not any different on the
book but the focus is slightly different.
interpretation, and I should preface this by
saying that, again, our initial interpretive
authority is somewhat limited.
Our
It's less focused on the mass media,
although I think that does play into it, than it
does the regular business exception that is
10
contained.
11
business of publishing books and that is exempt
12
under 7(a)(b)(3).
13
So a book publisher is in the regular
JUDGE HARTZ:
And how many books does it
14
have to publish before it's exempt?
15
is there --
16
17
18
19
20
MR. GROVE:
How often, or
I can't give you a number on
that.
JUDGE TYMKOVICH:
You'll know it when
you see it.

JUDGE HARTZ:
What about advertising the
21
book to get people to buy it?
Is that -- if the
22
book is -- I mean politicians write books. If it's
(866) 448 - DEPO

Document: 01019354934
Page: 51

30
1
an ad to go out and buy that book, is that exempt
under the --
MR. GROVE:
JUDGE HARTZ:
Well, if it's a--- business exemption also
because it's still in the course of their
business?
MR. GROVE:
Well, if it's a politician
who's writing the book, you run into coordination
issues clearly, and so I think that you're going
10
to sort of step over the line into what a
11
political committee would have to and what it
12
wouldn't have to do.
13
JUDGE HARTZ:
Assuming there isn't a
14
coordination problem.
15
candidate.
16
of coordination.
17
that within the business?
18
Maybe it's an attack on a
So there probably is not a lot of risk

If you advertise that book, is
MR. GROVE:
Well, again, certainly if
19
the advertisement runs in a communication that is
20
itself exempt, the advertisement itself, the
21
printing policy --
22
JUDGE HARTZ:
Well, you're probably
(866) 448 - DEPO

Document: 01019354934
Page: 52

31
1
going to advertise books in the newspaper and on
TV and things.
MR. GROVE:
Sure, and so I want to draw
the distinction between the TV facility.
or the Denver Post wouldn't have to disclose the
production costs that went into running it,
sticking the tape in the player. But the creation
of the advertisement I think does cross a line
there into electioneering communications,
10
11
12
13
9 News
depending on the content obviously.

JUDGE HARTZ:
have any questions?
Okay.
Any other -- do you
Why don't you go first?
JUDGE TYMKOVICH:
I'd like to go back to
14
the digital -- your answer on digital media. Are
15
broadcast -- are cable news or cable opinion
16
outlets covered, CNN, Fox.
17
the broadcast exemption?
18
MR. GROVE:
19
JUDGE TYMKOVICH:
20
Are they eligible for
Are they exempt?
Yes.
They're exempt as
broadcasters?
21
MR. GROVE:
Yes.
22
JUDGE TYMKOVICH:
You answered with
(866) 448 - DEPO

Document: 01019354934
Page: 53

32
1
respect to the Denver Post digital platform and is
all content on that platform considered as
encompassed with the writing portion of the
exemption?
MR. GROVE:
Well, I mean certainly the
Denver Post -- I've seen anyway -- they will
sometimes post videos and things like that.
8
9
JUDGE TYMKOVICH:
I'm going.
Yeah.
That's where
If the Denver Post posted a video,
10
this, a movie that unambiguously refers, would
11
they be exempt as a newspaper or do they then
12
become eligible for the exemption as a
13
broadcaster, even though they're not a licensed
14
broadcast entity?
15
MR. GROVE:
The line that we draw here
16
is not based on the Denver Post as a newspaper
17
entity.
18
communication looks like, and so, I can give you a
19
good example.
20
Beauprez-Hickenlooper debate on the Denver Post
21
website just last week.
22
it clearly would be an electioneering
It's more focused on what the
I watched a good portion of the
That clearly -- I mean,
(866) 448 - DEPO

Document: 01019354934
Page: 54

33
1
communication because they both appeared on it.
But that sort of communication is not
the type of communication that would fall outside
of the exemption.
out and raised money to put together a movie about
-- that either supported or opposed the candidate,
that's the sort of thing that would be subject to
disclosure. Again, that's veering towards argument
which I don't want to do right now.
10
Now, if the Denver Post went
JUDGE TYMKOVICH:
Right.
But if the
11
movie is deemed newsworthy by the Post and they
12
may provide a link on their website to the movie,
13
people can watch it, there's no risk to the Denver
14
Post exemption under the statute?
15
MR. GROVE:
Well, if it's just a
16
question of providing a link, I doubt that they
17
would cross the expenditure threshold for that and
18
so I don't think that -- I think that's a
19
hypothetical that probably would not actually come
20
to fruition.
21
22
JUDGE TYMKOVICH:
And, you know,
likewise, 9 News is primarily a broadcast medium.
(866) 448 - DEPO

Document: 01019354934
Page: 55

34
1
But you go to their website and they have written
content.
the exemption?
How is the written content covered under
MR. GROVE:
I view the website as an
extension of what 9 News' normal course of
business is.
JUDGE TYMKOVICH:
And how do you
distinguish then the blog activities because - -
do you go back and look at the attributes of the
10
11
12
13
media for a blogger website?

MR. GROVE:
Could you repeat that?
didn't quite pick it up.

JUDGE TYMKOVICH:
Yeah.
Would you treat
14
the 9 News digital platform the same as you would
15
a blogger or another policy- or informational-
16
oriented website?
17
18
19
MR. GROVE:
At very high level,
generally yes.
JUDGE TYMKOVICH:
If the author -- going
20
back to your description on the book publisher, if
21
the author of the book received a grant to publish
22
a book that referred to a candidate or engaged in
(866) 448 - DEPO

Document: 01019354934
Page: 56

35
1
express advocacy, would the author have to
disclose that donation and the amount of any
expenditure in advertising?
MR. GROVE:
If the author raised or
solicited money specifically for putting together
that sort of communication, then I think that we
are in a very similar situation to what we have in
this case.
So, yes.
JUDGE TYMKOVICH:
And just to be clear,
10
there's really no exemption for a movie-making
11
company.
12
not be eligible for the press exemption under the
13
secretary's interpretation?
14
MGM or Netflix wouldn't have -- would
MR. GROVE:
If one of those went out and
15
made this same sort of film, then no, they
16
wouldn't be exempted.
17
conduit by which it was distributed, then they
18
would not have to disclose, you know, the
19
bandwidth that you required when you went and
20
clicked on it.
21
22
If they were merely the
JUDGE TYMKOVICH:
And in the expenditure
definition, there is a narrowing of an expenditure
(866) 448 - DEPO

Document: 01019354934
Page: 57

36
1
to refer to express advocacy. That narrowing of
the definition of an expenditure, that doesn't
relieve an entity from disclosing under the
electioneering communication, which is a broader
definition of what's covered.
MR. GROVE:
Is that correct?
My understanding is that you
have to check an additional box on the form, if
it's an electioneering communication.
be both.
10
If it's an expenditure, it probably is
an electioneering.
11
12
JUDGE TYMKOVICH:
It's a subset, though,
of the electioneering communication --
13
MR. GROVE:
14
JUDGE TYMKOVICH:
15
Yes.
Would that be a fair
way to --
16
MR. GROVE:
17
of checking an additional box.
18
additional report required.
19
So it could
Yes, and it's just a matter
JUDGE TYMKOVICH:
There's no
And just so I'm clear
20
on the -- your responses as to earmarking,
21
earmarking disclosure is sort of a command either
22
of the statute or the constitution as construed by
(866) 448 - DEPO

Document: 01019354934
Page: 58

37
1
the secretary's regulation.
MR. GROVE:
JUDGE TYMKOVICH:
Is that correct?
Yes, that's accurate.

And if that entity
does not take an earmarked donation, then there's
no disclosure obligation.
MR. GROVE:
There's no disclosure
obligation of the donors from, you know, the pool
of money in the general treasury that the entity
used to fund that donation or to fund that
10
communication.
11
for how they spent the money if they exceed the
12
$1,000.
13
There is a disclosure obligation
JUDGE TYMKOVICH:
And that -- really the
14
disclosure would be, to the extent the earmarking
15
is the loophole, the loophole is closed by the
16
independent expenditure definition?
17
MR. GROVE:
I'm not sure I see
18
earmarking as a loophole.
19
understand where you're going.
20
JUDGE TYMKOVICH:
So I'm not sure I quite
Okay.
I just want to
21
make sure that the earmarking is, you know, a
22
statutory requirement for the disclosure to kick
(866) 448 - DEPO

Document: 01019354934
Page: 59

38
1
2
in.
MR. GROVE:
Our position is yes.
says for the communication.
interpret it.
JUDGE TYMKOVICH:
JUDGE HARTZ:
JUDGE PHILLIPS:
JUDGE HARTZ:
It
That's how we
Okay.
Do you have any questions?

No.
No, thank you.
Okay.
Thank you very
much. That was helpful to me.
I hope it will
10
enable the arguments to be clearer to us what's
11
being addressed.
Mr. Olson, if you'd proceed.
12
MR. OLSON:
13
it please the Court.
14
appellant, Citizens United.
15
of what I just heard, the number of arguments that
16
we would make in our brief would be expanded
17
enormously.
18
provisions are enormously vague, enormously
19
elastic, ambiguous and very, very difficult to
20
understand.
21
22
Thank you, Your Honor.
May
Theodore Olson, on behalf of

If I had a transcript
This statute, these constitutional
Just take the word earmarks.
Congress
has been arguing about what earmarks are for
(866) 448 - DEPO

Document: 01019354934
Page: 60

39
1
decades.
It's not clear that there is a
regulation saying that contributors don't have to
be identified unless their contribution to
Citizens United is earmarked in some fashion. But
that is not in the independent expenditure portion
of the regulation.
earmark could be oral or whether it could be just
general.
every once in while mentions that, thank you to
It's unclear whether an
National Public Radio, for example,
10
someone for contributing money for the coverage of
11
Japan or the coverage of medicine or the coverage
12
of something.
13
organizations, broadcasters put on candidate
14
debates.
15
support candidate debates on the run-ups to
16
election.
17
Organizations put on -- media
Would those be covered?
Newspapers
We're told today that the production
18
costs of this communication is exempt in some way,
19
but the advertising of the money to talk about the
20
communication and urge people to buy it is
21
covered.
22
below wasn't sure about whether the book he is
Books, the expert witness who testified
(866) 448 - DEPO

Document: 01019354934
Page: 61

40
1
writing would be covered or not, and then counsel
clarified and said the book wouldn't be covered
and then we heard that the books might not be
covered because they are mass media.
that anywhere in the statute or definitions.
I don't see
We also heard about whether or not it
might depend upon how the book was funded. What
about self-publication?
published on Kindle?
What about books that are
What is the regular course
10
of business?
11
expert witness' book would be exempt because it
12
was going to be published by Oxford University
13
Press and Oxford University Press, I think I have
14
the publisher right, is in the regular course of
15
business of publishing books.
16
We heard in the trial court that the
Well, Citizens United is in the regular
17
course of business of making movies.
There are so
18
many ambiguities and vagaries in this statute.
19
is in the hands of the regulator. We don't even
20
know whether the statements made today would be
21
binding on the next secretary of state or the next
22
attorney general.
There are citizen suits
(866) 448 - DEPO

It
Document: 01019354934
Page: 62

41
1
permitted here.
discretion by the enforcer, litigation costs, the
costs of hiring attorneys to figure out what this
statute means and the taking of risks when you're
engaged in the very business, in the very activity
that the Supreme Court has repeatedly said is at
the center of the core of the First Amendment.
8
9
So all of this vagueness leads to
No right is more importantly protected.

The First Amendment has its most urgent
10
application when you're talking about who will
11
govern, who will be the candidates.
12
JUDGE TYMKOVICH:
Mr. Olson, shouldn't
13
we provide some deference to the interpretation of
14
the attorney -- of the secretary of state?
15
MR. OLSON:
16
regulating speech, Your Honor.
17
about here -- and there isn't any question that
18
there are differential burdens based upon who you
19
are, the identity of the speaker, the content of
20
the communication --
21
22
Not when it comes to
JUDGE TYMKOVICH:
that in a second.
What we're talking
Yeah, I want to get to
But I just, you know, want to
(866) 448 - DEPO

Document: 01019354934
Page: 63

42
1
kind of set the ground rules and either the
secretary is provided an interpretation to
illuminate some of the ambiguities or vagueness of
the statute.
and maybe for purposes of your case, the
interpretation of the secretary of state may be
important.
8
9
You may disagree or agree with those
MR. OLSON:
We're just finding about
some of those interpretations now.
It's not like
10
a notice and comment provision or a rulemaking
11
procedure or anything like that.
12
finely reticulated regulations already in effect,
13
that might be something of a different story.
14
would of course depend upon what they were.
15
JUDGE TYMKOVICH:
If there are
It
One problem is we
16
haven't had any state court interpretation of what
17
the statute means in this area.
18
MR. OLSON:
Well, we're going -- but the
19
problem with this is what the counsel said today
20
might be different than what a counsel said
21
tomorrow, and a citizen can challenge that and
22
bring a suit which then goes before an
(866) 448 - DEPO

Document: 01019354934
Page: 64

43
1
administrative law judge, which then goes to a
state court.
Then you find out whether you're
permitted to speak or not without these burdensome
disclosures and it does depend -- the language
throughout the state's brief refers to it's you
may be exempted if you are a traditional speaker,
if you are an institutional speaker, if you're
part of the establishment, if you're a repeat
10
speaker like a newspaper, if you're regular or if
11
you're balanced or if you're journalism, but
12
you're not exempt if your ideological, if your
13
speech is negative, if it's -- these are all words
14
out of the state's brief -- if there's persuasive
15
effect in it, if it's an emotional appeal, if it's
16
an attack ad, if it urges action.
17
All of that has to do with the content
18
of the speech and it has to do with the identity
19
of the speaker and the point of view of the
20
speaker, and it has to do with the medium of
21
communication.
22
JUDGE TYMKOVICH:
Isn't the
(866) 448 - DEPO

Document: 01019354934
Page: 65

44
1
discrimination here -- the class, the difference
between -- I'm going to call it broadcast speakers
versus non-broadcast speakers because really
Citizens United looks more like a broadcaster than
they do like a newspaper.
6
7
But how is that distinction viewpoint

based at all --
MR. OLSON:
Well, the problem is --
JUDGE TYMKOVICH:
There's no content.
10
It's not, you know, Republican versus Democrat,
11
conservatives or liberal.
It's neutral, isn't it?
12
MR. OLSON:
What the Citizens United
13
Supreme Court said:
"We must decline to
14
draw and then redraw constitutional lines based on
15
the particular media or technology used to
16
disseminate political speech."
17
Supreme Court said just a couple of years ago.
18
So that's what the
But why is this distinction -- why is
19
this distinction being made between broadcast and
20
print on the one hand and people that make movies
21
on the other hand?
22
it's because there's a point of view in there.
If you read the state's brief,
(866) 448 - DEPO

Document: 01019354934
Page: 66

45
1
It's an attack ad.
communication.
They call it a drop-in
We're talking about communication that's
at the very central core of the First Amendment at
the most important time for citizens to hear it
and if you are one type of speaker, if you are a
movie-maker, even if it's in your regular course
of business and you want to talk about Colorado
politics, you must fill out these forms or you
10
must file these disclosures and it's not --
11
JUDGE TYMKOVICH:
But in the election
12
area, the Court has recognized speaker-based
13
distinctions.
14
Lobbyists can't contribute in certain types of
15
elections.
16
distinctions that have been upheld at less than a
17
strict scrutiny standard of review.
18
about those cases?
19
Foreign nationals can't contribute.
You know, there are speaker-based
MR. OLSON:
What do we do
I submit, Your Honor, that
20
many of those might be constitutionally subject as
21
well.
22
differentiations between people in a certain line
To the extent that there are
(866) 448 - DEPO

Document: 01019354934
Page: 67

46
1
of business or a certain nationality, if we're
going to distinguish on the basis of -- the
Supreme Court has never upheld that.
Court has said, we haven't gotten to that.
It
specifically said that in Citizens United.
The
argument was made something about foreign
contributors.
8
9
The Supreme
But, if there's distinctions made -what the problem with this statute, this regime,
10
is that it distinguishes among media, how you
11
speak.
It distinguishes based upon what you
12
speak.
Electioneering communication, if you're
13
talking about politics, it's one thing. If you're
14
talking about the zoo, it's something else.
15
it's an attack ad, it's separate.
16
in communication, it imposes this burden --
17
JUDGE TYMKOVICH:
If
If it's a drop-
Is your client's
18
subjected then to be within the press exemptions?
19
Is that the primary remedy that you're seeking at
20
the District Court and now before us?
21
22
MR. OLSON:
Well, we asked for that and
that's of course what the Federal Election
(866) 448 - DEPO

Document: 01019354934
Page: 68

47
1
Commission did say, that Citizens United is in the
same business as other media communications.
JUDGE HARTZ:
Well, you asked for that
before the secretary of state.
MR. OLSON:
JUDGE HARTZ:
Pardon me, Your Honor?

You've asked for that
before the secretary of state.
It appears that
all your Court arguments are for a facial
challenge.
And I'm curious about that because the
10
language in the statute that is problematic here
11
is very similar to that in the federal statute,
12
and it would seem that if we found that this
13
statute was unconstitutional on its face, that
14
would require a determination that the federal
15
statute is unconstitutional on its face.
16
asking if, in fact, you are seeking simply relief
17
for your client on an as-applied basis and if so,
18
have you preserved that adequately.
19
MR. OLSON:
So I'm
I believe that we have
20
preserved it.
Had we not challenged or asked the
21
secretary of state for an exemption, we'd be
22
hearing the argument today that we didn't
(866) 448 - DEPO

Document: 01019354934
Page: 69

48
1
discharge or exhaust our administrative remedies.
But the statute as it is, however it's
interpreted, it might well be that Citizens United
would have a standing problem that the secretary
of state announced in an administrative decision,
as we had asked for, that it doesn't fly to you,
don't worry about it.
8
9
Then we'd be in here standing having to

defend ourselves on the basis of whether we have
10
standing to challenge the statute, whether it
11
applied to us.
12
United quite clearly.
13
be imposed and the burdens are going to be imposed
14
because Citizens United talks openly about
15
politics. It mentions persons who might be on the
16
ballot and it deals with all of those things that
17
are so central to the First Amendment.
18
watching --
19
But it does apply to Citizens
JUDGE HARTZ:
These burdens are going to
Now, I'm
Don't worry about the
20
time. We're going to -- we're not going to let you
21
waste time, but we're going to pursue these issues
22
until we have a good understanding.
(866) 448 - DEPO

Document: 01019354934
Page: 70

49
1
MR. OLSON:
I appreciate that, Your
Honor, because I would want to reserve time for
rebuttal.
JUDGE HARTZ:
But if we're reluctant to
say that this statute is unconstitutional on its
face because it has language virtually the same,
the important language is very close to what the
federal statue says, but thought that it would be
unconstitutional as applied to your client, can we
10
grant that relief given the way you've postured
11
your litigation in federal court?
12
MR. OLSON:
The litigation challenged
13
not just -- was not just a facial challenge but it
14
was also as-applied challenge, if I recall what we
15
said in the complaint.
16
specifically -- I think the central point here is
17
the facial challenge, is that this regulatory
18
regime does discriminate between speakers on its
19
face, based upon what the speakers have to say,
20
how they say it, when they say it and type of
21
media selected to do it.
22
But our point here is
It would be -- if the Court were
(866) 448 - DEPO

Document: 01019354934
Page: 71

50
1
considering, for example, separating out the
provisions that relate to Citizens United or
saying Citizens United was entitled to the
exemption that the broadcasters and the publishers
are entitled to, notwithstanding the plain
language of the statute that does not exempt them,
under some First Amendment consideration you have
to consider whether that severability issue that
voters would ever have approved the legislation
10
written in that fashion.
11
below that there's no way that it would stand up
12
under that kind of analysis.
13
JUDGE TYMKOVICH:
We submit and we argue
Could a disclosure
14
regime survive at all under your identity- based
15
theory?
16
MR. OLSON:
I do not believe that it's
17
constitutional to distinguish between speakers
18
with respect to the imposition of a burden. The
19
Minnesota -- Minneapolis Star case, the Arkansas
20
Writers Project case, once you start
21
distinguishing between speakers in connection with
22
the imposition of a burden, that is facially --
(866) 448 - DEPO

Document: 01019354934
Page: 72

51
1
presumptively and facially unconstitutional.
JUDGE HARTZ:
So you are saying that the
federal statute is facially unconstitutional
because of the press exemption in that statute.
MR. OLSON:
I think that we're of course
not debating the constitutionality of the federal
statute.
8
9
10
JUDGE HARTZ:
But it could give us
pause.
MR. OLSON:
And if we heard the Federal
11
Election Commission give those -- the kinds of
12
answers that we heard today with respect to the
13
meaning of those words, we might be there too.
14
think that we might have a problem with the
15
federal statute that if wound up imposing burdens
16
on different speakers with respect to disclosure,
17
the records that you have to keep, that whether or
18
not you have to disclose people that contribute
19
and you don't know what the meaning of those words
20
are. Many of the same things we are saying here
21
today we would be saying in maybe this court.
22
JUDGE HARTZ:
But the Colorado -- let me
(866) 448 - DEPO

Document: 01019354934
Page: 73

52
1
ask one question, and then --
JUDGE PHILLIPS:
JUDGE HARTZ:
Sure.
But the Colorado Supreme
Court really hasn't spoken on this statute and the
interpretation of the constitutional amendment.
If it decided to interpret it the way the federal
statute has been construed by the Federal Election
Commission, then presumably it would not -- you
wouldn't have your facial challenge.
And if it
10
can be construed that way, doesn't that eliminate
11
your facial challenge?
12
MR. OLSON:
Well, I think the answer to
13
that question depends upon the standing of the
14
party bringing the litigation and if we had
15
standing to bring that case, I think that would be
16
a standing issue if the Colorado Supreme Court
17
said your client and what your client does is
18
completely exempt, then there would be a standing
19
issue.
20
But if it did discriminate against a
21
blogger, discriminate against a person that held
22
out a sign in a neighborhood, that would make it
(866) 448 - DEPO

Document: 01019354934
Page: 74

53
1
facially unconstitutional for the person bringing
that challenge because the discrimination between
-- by the imposition of different burdens and the
Supreme Court -- the Ladue case, for example,
about the woman who wanted to put a sign in her
window about politics, the Supreme Court
jurisprudence is full of decisions that say, you
may have burdens imposed upon speakers if they're
equal and they're neutral as to content and
10
neutral as to the speaker and if they don't impose
11
burdens that are such that it's more difficult to
12
speak.
13
But this statutory regime is not even close to
14
that.
Those things might conceivably be upheld.
15
16
JUDGE HARTZ:
question?
17
Judge Phillips had a
No, go ahead.
JUDGE PHILLIPS:
Is it your position
18
then that the only disclosure schemes that would
19
be constitutional are everyone discloses or no one
20
discloses?
21
22
MR. OLSON:
I think that if there was a
compelling government reason for a disclosure in
(866) 448 - DEPO

Document: 01019354934
Page: 75

54
1
balance with respect to different types of
speakers, that conceivably would be upheld. But
what does the state offer here?
two things.
it did not say in the district court, that it's
important to have this regime because to prevent
corruption or the appearance of corruption, it
says that we want to deter corruption.
The state offers
One, it says in the brief here, but
But the Supreme Court has said that in
10
connection with independent expenditures, that is
11
not a compelling justification with respect to
12
corruption.
13
justification for this kind of statute.
14
you'd have to look at the other argument being
15
made by the state which is very weak.
16
want to inform the voters as to what's going on.
17
The corruption motive is not a
JUDGE PHILLIPS:
Then
It says we
But it's not just the
18
state that makes that argument.
It's the voters
19
and the citizens of Colorado who made that
20
argument when they passed Amendment 27, and does
21
it matter at all that the people making that
22
distinction are the very people of Colorado by a
(866) 448 - DEPO

Document: 01019354934
Page: 76

55
1
2-1 vote that they think they need more
information about drop-ins or whatever else,
outsiders who come in with a political message
than they do from people within their own state or
companies, newspapers, TV stations, that they're
able to evaluate those over time.
They are able to figure out which ones
speaks a particular voice or message and discount
it or credit it as they please.
But with entities
10
they have no idea about, that they really do need
11
to know who is promoting this speech.
12
there anyone better than the people themselves to
13
make that distinction?
14
MR. OLSON:
And is
Well, there's two answers to
15
that.
At least two answers to that come to my
16
mind, Your Honor.
17
whatsoever that the voters approve something that
18
is unconstitutional under the First Amendment.
19
if the state legislature did this or the voters do
20
it through initiative or referendum or anything
21
like that, it makes no difference.
22
voters might be saying, yes we would like to know
It makes no difference
So
Now, the
(866) 448 - DEPO

Document: 01019354934
Page: 77

56
1
more about this particular speaker or that
particular speaker. But if the First Amendment
tells the voters, the state, which is here today,
through the attorney general's office, that we
would like to know more about this particular
person because they live in Iowa or they may be
engaged in this kind of a business, that's
discrimination based upon the identity of the
speaker and the Supreme Court has said you can't
10
let the government decide who will participate in
11
government.
12
--
13
But through electoral communications
JUDGE PHILLIPS:
Well, I understand.
14
understand that the voters can't pass a law that's
15
unconstitutional.
16
distinction and shouldn't that be weighed in the
17
whole balance of what's a sufficiently important
18
government interest?
19
voice important at all on that?
20
But the voters made that
MR. OLSON:
Don't they -- isn't their
Their voice is very, very
21
important, whether they exercise that voice as
22
citizens at a ballot box or as citizens electing
(866) 448 - DEPO

Document: 01019354934
Page: 78

57
1
representatives who pass the same legislation.
do not know of a single case that would support
the proposition that a regime which would be
unconstitutional if adopted by the legislature
became constitutional because the legislature or
the people put it on a ballot and voted for it.
JUDGE PHILLIPS:
question to follow up on this line.
legislature or if the people through a
And just one last

If the
10
constitutional amendment put the same disclosure
11
requirements on the press, on broadcasters and
12
newspapers, then you would say everything is good
13
constitutionally as far as Citizens United as
14
well?
15
MR. OLSON:
I think that would take away
16
the argument, the principle argument that we have
17
today, that a statute that discriminates in terms
18
of the imposition of burdens between speakers
19
based upon that who they are, their identity, the
20
medium of communication or the manner of speech or
21
the content of their speech, that's
22
unconstitutional.
If it's an even-handed
(866) 448 - DEPO

Document: 01019354934
Page: 79

58
1
application, and we acknowledge the Citizens
United case itself addressed disclosure regimes.
It didn't discuss them in the context of
discrimination.
regimes in the Citizens United case that the
Supreme Court heard.
But it did uphold disclosure
But it would depend, Your Honor, on how
much of a burden that was in a particular
disclosure regime because it can be too much of a
10
burden.
11
vague, as the statute that we're dealing with here
12
today is, so the people don't know and can't make
13
decisions.
14
It might inhibit speech.
It might be
Here we are less than a month before
15
elections and we're in a court of appeals trying
16
to decide whether an individual speaker, Citizens
17
United, a nonprofit corporation, can make a 30-
18
minute documentary and distribute it to the people
19
in whatever form about Colorado politics.
20
are four weeks from an election and we don't know
21
the answer to that.
22
have to comply with all of these burdens when the
Here we
We don't know whether they
(866) 448 - DEPO

Document: 01019354934
Page: 80

59
1
Denver Post or the local television station, and
it may not be a local television station.
With respect to your question about
Colorado voters saying, well, we know who these
local stations are, if you look up the ownership
of the broadcasters in Colorado, many of them are
in New York.
The New York Times has got a very, very
substantial contribution from a billionaire in
Many of them are in other places.
10
Mexico.
11
reason for these constitutional rules are that the
12
First Amendment, if it protects anything, it's
13
robust, uninhibited speech about who's going to be
14
on the ballot.
15
I mean, these sort of things can't -- the
JUDGE PHILLIPS:
But there's nothing
16
about this that stops anyone from speaking. And
17
the regulation, statute, the Constitution are all
18
content-neutral.
19
brought up during the district court proceedings
20
that Michael Moore was the example, would be just
21
a subject to this regulation as is Citizens
22
United.
And that, of course, was heavily
(866) 448 - DEPO

Document: 01019354934
Page: 81

60
1
MR. OLSON:
But it's not content-
neutral. If the brief of the State of Colorado
talks in terms of, it's okay, you're exempt if
you're a traditional speaker, if you're an
institutional speaker, if you're part of the
establishment, but not if you're ideological.
Now, it may be that Michael Moore and
Citizens United be in the same box here.
would be in a different box than the Denver Post
10
because it's presumed that the Denver Post isn't
11
ideological, or National Public Radio or MSNBC is
12
not ideological.
13
upon the content of the speech.
14
ad?
15
have to do with what's being said and why it's
16
being said.
17
But they
So there is a distinction based
Is it a negative ad?
Is it an attack
All of those things
The footnote nine of the government's
18
brief, the state's brief here, says, with respect
19
to regular course of business, which, as I say,
20
Citizens United's regular course of business is
21
making movies about political issues.
22
footnote nine of the government's brief, the
The
(866) 448 - DEPO

Document: 01019354934
Page: 82

61
1
state's brief says, well, you're not in the
regular course -- you can't have the regular
course of business exemption if you're attempting
to persuade people, if you're attempting to
influence a voter.
Well, that's speech.
That is content of
speech.
And then you have the government deciding
what is your motive for speaking.
influence somebody?
Do you want to
Of course, most speakers do,
10
whether they present it in a factual way or a
11
semi-balanced way.
12
ideas communicated to someone else.
13
Speakers want to have their
And here we have a label put on Citizens
14
United calling ideological.
And the dictionary
15
says ideological means that it's about ideas.
16
if we have a First Amendment for any purpose, it's
17
to protect the distribution of ideas, whether we
18
like those ideas or not and whether they're in
19
your favorite newspaper or not or your favorite
20
publisher or your favorite broadcaster.
21
little guy, the startup and the drop-in person,
22
has as much voice as the most powerful newspaper
And
The
(866) 448 - DEPO

Document: 01019354934
Page: 83

62
1
under the First Amendment.
JUDGE TYMKOVICH:
If we don't agree that
there's strict scrutiny identity-based -- or
identity-based classification doesn't generate a
strict scrutiny standard of review, under a lesser
standard exacting scrutiny or whatever you want to
call it, doesn't the state have the flexibility to
pick and choose among some speakers based on some
of the factors that you've identified,
10
establishment versus non- establishment,
11
ideological versus not?
12
MR. OLSON:
No, not under any standard.
13
In the first place, the Supreme Court is clear if
14
the distinction is being made based upon content,
15
that is presumptively unconstitutional and strict
16
scrutiny applies.
17
18
19
JUDGE TYMKOVICH:
Okay, but if I
disagree with that premise, where do we go?

MR. OLSON:
Yes.
If you call -- if our
20
opponents' say it's not strict scrutiny for the
21
various reasons because it has to do with
22
disclosure, even though its uneven disclosure,
(866) 448 - DEPO

Document: 01019354934
Page: 84

63
1
they say exacting scrutiny.
exacting scrutiny is an important governmental
interest.
scrutiny, narrowly tailored to achievement of that
interest.
be under-inclusive. The Ladue case is a good case
to talk about that.
8
9
10
The standard for
But it also must be the same as strict
It cannot be over-inclusive.
It cannot
So this --
JUDGE TYMKOVICH:
And you say the
problem here is that it's under-inclusive.

MR. OLSON:
Well, it's both.
It's
11
under- inclusive because it exempts newspapers and
12
broadcasters.
13
includes people that have no connection with
14
corruption or no connection with the so-called
15
information need, which as this Court said in one
16
case, it's an interest.
17
deal, especially when you're talking about
18
independent expenditures.
It's over-inclusive because it
But it's not that big a
19
People who want to come out and speak
20
and are not connected with a candidate, who are
21
not contributing to a candidate or are not
22
connected with a candidate, there's no danger of
(866) 448 - DEPO

Document: 01019354934
Page: 85

64
1
corruption there.
articulates is very vague.
should know more information about whose doing the
speaking.
And the interest that the state

They just say people
That's very attenuated, very ambiguous.
And any burden that -- the state makes the
argument that it's not much of a burden.
put a five-pound weight on 2,000-pound
thoroughbred horse, that's called a handicap. And
If you
10
there's no question that the obligation to keep
11
records, to make disclosures is a burden and it's
12
unequally distributed and that makes this statute
13
-- this statutory regime facially
14
unconstitutional.
15
JUDGE HARTZ:
Let me ask a question
16
where you quoted from Citizens United regarding
17
the lack of an interest, of a government interest
18
with respect to corruption for independent
19
expenditures.
20
later in McCutcheon, after Citizens United, when
21
it says that, "The disclosures of contributions
22
may also deter actually corruption and avoid the
How do you account for what it said
(866) 448 - DEPO

Document: 01019354934
Page: 86

65
1
appearance of corruption by exposing large
contributions and expenditures to the light of
publicity," quoting from Buckley which predated
Citizens United?
didn't mean what they said in Citizens United, at
least not as far -- it didn't extend as far you
would extend it.
8
9
Doesn't that suggest that they
MR. OLSON:
Well, I think that they
clearly meant what they said in Citizens United.
10
Of course I would say that.
11
talking about -- what they're talking about in the
12
context of the later case is it had to do with
13
aggregate contribution limits. And so, it wasn't
14
focusing on this issue.
15
would be dicta.
16
But what you're
So anything it said there
But what the Court has been consistent
17
about is that -- and it goes back to Buckley too -
18
- that expenditures are less of a concern,
19
especially uncoordinated expenditures.
20
Expenditures not coordinated with the candidate
21
don't present the risk of corruption that
22
contributions might.
That goes all the way back
(866) 448 - DEPO

Document: 01019354934
Page: 87

66
1
to Buckley and the Court has been consistent about
that in various different iterations of these
cases that have come along.
And when we have an independent
expenditure, and expenditure totally unconnected
with any candidate by an individual that wants to
comment on Colorado politics or any other state's
politics independently and freely, there's no
connection and there's none shown by the state and
10
they didn't bring it up in the District Court.
11
They just brought it up in the brief here.
12
they really forfeited that argument.
13
So
But even if that argument were to be
14
considered, you have to realize, or you have to
15
focus on the fact that they didn't think it was
16
important enough to raise in the District Court --
17
the United States v. Virginia -- the VMI case.
18
The Court pointed out you can't come up with post
19
hoc rationalizations for cases in this area.
20
is a post hoc rationalization and it doesn't carry
21
any weight based upon what the Supreme Court has
22
said.
This
(866) 448 - DEPO

Document: 01019354934
Page: 88

67
1
JUDGE HARTZ:
Let me return again to as-
applied challenge, which, as I've indicated, may
make more sense here.
United was willing to disclose its expenditures in
a long report.
with the expenditure and disclaimer requirements?
In Virginia, Citizens
Do you have any serious problem
MR. OLSON:
Taken in the abstract,
expenditure and disclaimer requirements --
disclaimer requirements have fallen in different
10
category than expenditure requirements, it seems
11
to me, because you're requiring -- when you make
12
that step, you're requiring speech affirmatively,
13
and the Supreme Court has --
14
15
16
JUDGE HARTZ:
Which is to say that this
is not coming from the candidate.

MR. OLSON:
It's not.
You're telling
17
the speaker, Citizens United or whoever, what you
18
must say when you make a speech.
19
something like that to 10-second commercials, you
20
can run into problems.
21
someone to say that they don't voluntarily choose
22
to say, and the courts have been very suspicious
When you apply
A, you're requiring
(866) 448 - DEPO

Document: 01019354934
Page: 89

68
1
of that sort of thing, and the burden when you
talk about short pieces of time may be
significant.
amount of time in the amount of speech.
So disclosure requirements or
It might be 20 to 30 percent of the
requirements that say -- yeah, disclaimer
requirements I think have to be looked at in their
context.
JUDGE HARTZ:
Does the federal law, now
10
that Citizens United has the press exemption, are
11
there any requirements of disclosure or any
12
disclaimer requirements under federal law that
13
still apply, even if you have the press exemption?
14
MR. OLSON:
I don't know the answer to
15
that, Your Honor.
16
at those requirements.
17
concerned about this case, this regime and this
18
time because we are so close to an election and
19
this is a point where First Amendment principles
20
are urgent.
21
22
I haven't gone back and looked

My client was very
It's time to be able to speak.
JUDGE HARTZ:
argument there.
I think we understand your
Thank you.
(866) 448 - DEPO

Document: 01019354934
Page: 90

69
1
MR. OLSON:
JUDGE HARTZ:
And if I may have some -We'll give you some
rebuttal time.
You can give them 30 minutes. But
let's try to stick with 30 minutes.
can do that.
Don't you think we can do that?
MR. GROVE:
JUDGE HARTZ:
MR. GROVE:
I think we
Hopefully.
Okay.
May it please the Court.
One of the fascinating things about this case is
10
that it highlights what happens when a party
11
challenges an individual component of a campaign
12
finance law while it is designed to work together
13
as a whole.
14
struck down restrictions on independent
15
expenditures and limits on contributions, direct
16
contributions.
17
though, the Court had said, we are doing this
18
because, look, effective disclosure remains as a
19
less burdensome, a more narrow option.
20
The Supreme Court has again and again
In every one of those cases,
What the plaintiff has done here though
21
is separate out disclosure and present it as an
22
independent burden on political speech. Now,
(866) 448 - DEPO

Document: 01019354934
Page: 91

70
1
that's certainly possible.
nothing like Brown v. Socialist Workers' Party or
even Doe v. Reed, for that matter. But analyzing
disclosure in a vacuum is problematic.
the fact that the Supreme Court has relied heavily
on the existence of disclosure as a justification
for striking down spending and contribution limits
in case after case.
But this case is
It ignores
McCutcheon I think is the most recent
10
example of this.
11
twin governmental interests in disclosure, and
12
this was raised below:
13
the electorate, on one hand, and deterring
14
corruption by shining a light on large
15
contributions and expenditures on the other.
16
the plurality put it in that case, disclosure
17
often represents a less restrictive alternative to
18
flat bans on certain types or quantities of
19
speech.
20
There the Court pointed out the
providing information to
As
For that reason, I think it's important
21
to acknowledge what this case is about and what
22
it's not about.
The focus of the debate here
(866) 448 - DEPO

Document: 01019354934
Page: 92

71
1
shouldn't be on speech bans because the challenged
law neither imposes a ceiling on campaign-related
activity nor does it prevent anyone from speaking,
nor no matter how many times the plaintiff says
it, should this case be about discrimination based
on viewpoint, content or the identity of the
speaker.
8
9
JUDGE TYMKOVICH:
Is it really content-
10
neutral if it treats more favorably the broadcast
11
speaker than the non-broadcast speaker, the
12
traditional speaker versus the nontraditional, the
13
establishment versus the antiestablishment?
14
isn't that a content distinction?
15
MR. GROVE:
Why
Because the same, I think --
16
I was thinking about this last night, and I think
17
maybe the best example of it is this. If you've
18
ever watch 9 News, they do these truth tests and
19
they will play a commercial and then they'll
20
analyze the claims in the political commercial.
21
The fact that they are playing the commercial as
22
part of the news broadcast means that they are
(866) 448 - DEPO

Document: 01019354934
Page: 93

72
1
disseminating the precise same content and the
exact same content that a commercial that runs in
between news segments disseminates.
in the context of a -- it's different, the
context, because it's not the same sort of
advertising mode I suppose.
But they do
The point is that, again, it's not --
this case is not about the institutional press or
broadcast stations or anyone else versus the
10
little guys.
11
communications.
12
advertising, and the Supreme Court has in Citizens
13
United made this very clear that they are
14
perfectly willing to look at the content to
15
determine whether something is advertising or not.
16
That's exactly what they did.
17
It's about the type of

It's about whether this is
JUDGE TYMKOVICH:
What if the same 9
18
News decides that it has an agenda in an election
19
and it's either going to, you know, try take out a
20
particular candidate or prop up a particular
21
candidate?
22
broadcaster, it plays by a different set of rules
You know, because of its stature as a
(866) 448 - DEPO

Document: 01019354934
Page: 94

73
1
and it could expend millions of dollars in in-time
value by, you know, favorable or disfavorable
coverage.
But there's no disclosure.
The public
doesn't learn anything about its potential bias
or, you know, the source of its advocacy. You
know, why -- you know, what -- does the state
really have, you know, a compelling interest or a
substantial interest in that kind of
10
discrimination?
11
MR. GROVE:
So that certainly is not as
12
hypothetical as some of the questions within.
13
We've got Fox News on one hand, MSNBC on the
14
other.
15
on the other.
16
17
18
Rush Limbaugh on one side, Rachel Maddow

But that --
JUDGE TYMKOVICH:
And they all get a
pass under the statute.

MR. GROVE:
And that's largely the
19
point. When you have a communication like that,
20
that takes that form, then viewers -- and this is
21
the policy decision that Colorado's voters have
22
made -- viewers or readers or listeners of that
(866) 448 - DEPO

Document: 01019354934
Page: 95

74
1
content have the cues that they need in order to
evaluate the message.
you have what we've termed the drop-in political
advocacy that you have here.
JUDGE HARTZ:
That's not the case when
How do they have those
cues when it's an op-ed from somebody who runs an
organization you've never heard of before or a
letter to the editor?
in that context?
10
MR. GROVE:
How do you have those cues
Well, you can certainly take
11
them -- you can take them for what they are. A
12
letter to the editor is clearly expressing a point
13
of view as in a newspaper.
14
that is.
15
JUDGE HARTZ:
Everybody knows what
Well, so is -- so are
16
electioneering communiques, so are independent
17
expenditures.
18
expressed a point of view.
19
know who's circulating the DVD but you don't need
20
to know more about the person who wrote the letter
21
to the editor or the op-ed piece?
22
That's a point.
MR. GROVE:
You've clearly
Why do you need to
I think the context matters.
(866) 448 - DEPO

Document: 01019354934
Page: 96

75
1
I mean an op-ed appears on the editorial page of a
newspaper.
page and it's not entirely clear. So the point is
that the reader of that knows that it is an
opinion, knows that it is being -- that that's how
you consider it and you give it the weight that's
it's due.
8
9
Everybody knows that's the editorial
It's not always -JUDGE HARTZ:
concrete.
Okay, well let's be
Citizens United has put out 24, or was
10
it 28, movies.
What more do people need to know
11
about Citizens United to assess where they are
12
coming from?
13
14
MR. GROVE:
15
JUDGE HARTZ:
Well, I think it's -If it were -- if you had a
16
group called Ku Klux Klan, Inc., you wouldn't need
17
to know one more thing about them to know where
18
they are coming from, would you?
19
track record -- let me put in a broader content.
20
I'm trying to understand why the rationale for the
21
news exemption, which can make some sense because
22
people know who they are, they have a track
Why isn't their
(866) 448 - DEPO

Document: 01019354934
Page: 97

76
1
2
record, why that doesn't apply to Citizens United?

MR. GROVE:
So Citizens United has
released a couple of dozen films.
released one regarding Colorado politics, and so
that is the sort of informational interest, and
that is where the informational interest comes in
to play for Colorado's voters.
8
9
JUDGE HARTZ:
Oh, it's the geographic
thing then?
10
MR. GROVE:
11
JUDGE HARTZ:
12
They've never
Not necessarily, but -Would you treat Citizens
United differently if it were just in Colorado?
13
MR. GROVE:
14
JUDGE HARTZ:
If they had released -If they had released 24
15
DVDs in Colorado about different elections over
16
the last 20 years?
17
MR. GROVE:
I'm not sure that the
18
secretary's interpretive latitude, for what
19
amendment 27 right now -- says right now would
20
allow a movie like this to be -- to fall within
21
the press exemption.
22
JUDGE HARTZ:
Right, right.
But in the
(866) 448 - DEPO

Document: 01019354934
Page: 98

77
1
First Amendment challenge, you'd better have a
good reason, and the reason I'd like to hear, what
it is about the purpose behind the press exemption
that doesn't justify under the First Amendment,
maybe not under your Colorado law, an exemption
for them here.
MR. GROVE:
Let me answer that in a
couple of ways.
First, we need a good reason. But
we don't need the fit to be perfect.
As we've
10
said in the brief, exacting scrutiny is the test
11
here.
12
disclosure requirements and in every single case
13
where the Court has analyzed disclosure
14
requirements, it's applied exacting scrutiny.
15
disagree with Mr. Olson's formulation of that
16
test.
17
In the disclosure context, it's a substantial fit
18
between the regulation and the sufficiently
19
important governmental interest.
20
And the reason for that is that these are
There's not a narrow tailoring requirement.
The sufficiently important governmental
21
interest and the fit are really the issue here.
22
There's no question that it's actually really the
(866) 448 - DEPO

Document: 01019354934
Page: 99

78
1
fit.
And so the question is then can Colorado put
together regulations in which we make policy
decisions about what sorts of communications come
with these cues that readers can use to evaluate
the context and which don't.
JUDGE TYMKOVICH:
And that -You could have a
start- up newspaper, a start-up periodical with no
cues and they would be perfectly eligible for the
exemption.
They could be financed by millions of
10
dollars of outside money and the public would have
11
no information about them, yet they would fall
12
perfectly within this. That doesn't seem to be
13
very closely tailored to the interest that you're
14
asserting.
15
MR. GROVE:
There is certainly difficult
16
questions at the margins of this case and a start-
17
up newspaper, I agree, if it was a general
18
interest newspaper that people subscribed to, that
19
sort of thing, and they provided content that
20
people would be able to use in order to evaluate
21
what was being said on the editorial page, then
22
sure, I don't think there is any issue.
Now, if
(866) 448 - DEPO

Document: 01019354934
Page: 100

79
1
something that appears to be a newspaper appears
on my door, and it's got --
JUDGE TYMKOVICH:
That's a different
issue.
I'm saying, you know, something that
really looks like the print media.
-- I mean I'm looking at your cues argument rather
than whether it's a sham or not.
doesn't give you a cue. You could have -- say the
Denver Post was purchased by a different publisher
You don't have
You know, it
10
or a new editor came in with a completely
11
different philosophy.
12
would be worthless in that context.
13
United, they've got, you know, a 10- or 15- year
14
track record.
15
know, why is your regulation or the statute
16
tailored to that interest when there's so many
17
kind of obvious and practical obstacles to its
18
implementation?
19
You know, previous cues

Yet Citizens
They would not be eligible.
MR. GROVE:
You
I think the answer is that
20
people know how to interpret what they are reading
21
generally when they get something like a
22
newspaper.
That form of communication provides
(866) 448 - DEPO

Document: 01019354934
Page: 101

80
1
the cues at least as far as the Colorado's voters
have indicated.
3
4
Tymkovich:
In some cases it does.
But
in a lot of cases the cues aren't there.
MR. GROVE:
And the fit may not be
perfect.
doesn't need to be perfect.
substantial.
I readily acknowledge that.
JUDGE HARTZ:
But the fit
It only needs to be
Well, it's far from
10
perfect.
There's another way.
I mean, as I said,
11
the distinction in general makes some sense to me.
12
If you have a drop-in independent expenditure, a
13
drop-in ad, then if it's a one-time thing, you
14
don't know who they're -- where they're coming
15
from and the statute requires that you at least
16
find where they're getting their money for this.
17
So you can make an evaluation knowing
18
that Exxon provided so much money or some labor
19
union provided the money or something like that.
20
When you have someone who's not a drop-in, who's
21
really in the business of electioneering in many
22
ways, there are two things.
One, you know where
(866) 448 - DEPO

Document: 01019354934
Page: 102

81
1
they're coming from, and two, you're probably not
going to find out where they're getting their
money because the big donor did not earmark for
Rocky Mountain Heist.
million dollars and said, "Go out and do good work
from my point of view."
who those people are.
The big donor put up a
And you never find out
The person you find out who is
contributing is the ex-wife of the candidate says,
10
"Oh, they're attacking my ex.
I'll give them a
11
couple hundred bucks."
12
that.
13
behind it.
14
where they're coming from. And that sounds exactly
15
like the reason for the press exemption because we
16
don't know who's funding the newspaper, whether
17
it's a Mexican billionaire or Thomas Jefferson
18
secretly funding a newspaper in Philadelphia.
19
We don't know where they have to --
And she'll find out about
So you don't get information about who is

But you get a lot of information about
20
where their money comes from.
But we know enough
21
about the newspaper.
22
from and I'd like you to explain why that still is
So you know where I'm coming
(866) 448 - DEPO

Document: 01019354934
Page: 103

82
1
a good fit.
2
3
MR. GROVE:
So there were a lot of
questions in there.
JUDGE HARTZ:
Yes, there were a lot in
there.
what you need to convince me of.
I wanted to give you the full benefit of
MR. GROVE:
First of all, the record in
this case is completely devoid of any suggestion
that large donors might not earmark and small
10
donors might.
11
identity that matters.
12
in Citizens United, one of the -- the other piece
13
of this is the disclosure of the expenditures
14
themselves. And the Supreme Court said at a
15
minimum, and they said that this was sufficient to
16
satisfy exacting scrutiny, at least when there is
17
a disclaimer and a disclosure of the expenditures,
18
a viewer or a reader will be able to make sure, to
19
reassure him or herself that the expenditure
20
wasn't being made by a candidate committee but was
21
instead an independent expenditure.
22
Second, it's not just the donor's
JUDGE HARTZ:
As the Supreme Court said
And you're talking about
(866) 448 - DEPO

Document: 01019354934
Page: 104

83
1
the sort of reporting that went on in Virginia, in
that, where Citizens United or whoever, would
explain where they placed money in support of the
DVD.
disclosure, right?
6
7
8
9
10
You're talking about that sort of
MR. GROVE:
That's right.
I'm not
talking about the earmarks.

JUDGE HARTZ:
You're not talking about
donor information.
MR. GROVE:
I'm not talking about the
11
earmark donations.
12
information comes in, the donor information, if
13
somebody has earmarked that and it's a
14
particularly large contribution that was rather
15
than one to the general treasury, then great.
16
That's information that a prospective voter can
17
rely on as well.
18
point is that the existence or non-existence of
19
earmarked donations is not the only piece that the
20
Court has to look to, to decide whether the
21
informational interest is actually satisfied.
22
That's a bonus.
If that
But that's not the only -- the
JUDGE HARTZ:
We can't say this is not
(866) 448 - DEPO

Document: 01019354934
Page: 105

84
1
constitutionally permissible but this is?
I mean,
just because the expenditure reporting might be
proper doesn't mean that the donor reporting is
constitutionally satisfactory.
MR. GROVE:
I would have -- I think I
would be more concerned about the donor
requirement, if there were some sort of
requirement that Citizens United open up its books
to the world in the event that it engaged in a
10
electioneering communication or independent
11
expenditure.
12
actually what saves the constitutionality here.
13
It's only donations that are directed towards
14
putting this communication out and those are
15
exactly the sorts of communications --
16
But the earmarking requirement is
JUDGE HARTZ:
Why do you want to know
17
that information?
Why do you want to know -- when
18
you have an organization that's been around awhile
19
and produced a lot of stuff, why do you want to
20
know the people who earmark for this particular --
21
I can see if it's a single shot deal, if it's a
22
drop-in, one-time deal. I can see that.
That's
(866) 448 - DEPO

Document: 01019354934
Page: 106

85
1
the only information you have because you don't
have a track record.
But when you have a track record, why?
What's the purpose of disclosing the people who
earmark and not those who might be the major
supporters?
way or the other at this point.
8
9
There's no reason to think it's one
MR. GROVE:
Citizens United had a
substantial track record in 2010 as well, and here
10
is what the Supreme Court said, and this is at
11
page about 915 of the opinion: "Even if the ads
12
only pertain to a commercial transaction, the
13
public has an interest in knowing who is speaking
14
about a candidate for an election."
15
later on the same page, "Shareholders can
16
determine whether their corporation's political
17
speech advances the corporation's interest in
18
making profits and citizens can see whether
19
elected officials are in the pocket of so-called
20
moneyed interests."
21
fit that's been expressed by the Supreme Court
22
already.
And then
Those are the -- that's the
(866) 448 - DEPO

Document: 01019354934
Page: 107

86
1
JUDGE TYMKOVICH:
What do we do about
the MCFL, you know, ideological nonprofit
exemption?
entitled to some constitutional protection under
that doctrine?
Why wouldn't Citizens United be
MR. GROVE:
MCFL required disclosure.
MCFL, and this is part of, I think, the confusion
in this case, there are two components of MCFL.
One is could the corporation speak, and the Court
10
said, yes, for small ideological corporations,
11
we'll make an exception.
12
have to disclose.
13
it was in Citizens United, it's actually the same
14
case, just in a different context, was a
15
resounding yes.
16
The second was do they
And the answer on that, just as
JUDGE TYMKOVICH:
Do you think -- is
17
there informational value in the -- not only in
18
the donation but also in the type and the amount
19
of the expenditure?
20
MR. GROVE:
Yes, and Colorado has
21
actually made that distinction. Electioneering
22
communications or independent expenditures that
(866) 448 - DEPO

Document: 01019354934
Page: 108

87
1
fall below the $1,000 dollar threshold for the
expenditure or electioneering communication itself
don't have to be disclosed.
Hartz's point, the widow of the candidate or
whoever it was that donates $200 dollars won't
have to be disclosed anyway because the threshold
is $250.
To address Judge
Now, I understand --
JUDGE HARTZ:
MR. GROVE:
I said it was $250.

Sure.
I understand that we
10
could go to $251 and ask the same question. But
11
the very small donations, the ones that, for
12
example, raised questions about the
13
constitutionality of our issue committee statute
14
in Samson aren't really at issue here. Our
15
thresholds are much higher, not only for the
16
expenditure, but also for the donation that might
17
be earmarked and would have to be disclosed.
18
JUDGE TYMKOVICH:
If the public has a
19
good understanding of where a broadcaster or a
20
newspaper is coming from, wouldn't the public
21
still have an interest in the amount of
22
expenditures that are directed towards
(866) 448 - DEPO

Document: 01019354934
Page: 109

88
1
electioneering communications?
might not the public be interested that, say, 9
News was, you know, directing several million
dollars' worth of its resources pro or con a
particular candidate. Even if you know where
they're coming from, you might be a little
surprised that they're like 90 percent for one
candidate and 10 percent for another.
that be valuable information for the public?
10
MR. GROVE:
In other words,
Wouldn't
It certainly could be.
But
11
here's the problem with it.
12
different sort of burden than what is imposed on
13
Citizens United in this case.
14
JUDGE TYMKOVICH:
15
MR. GROVE:
One, that imposes a
We know --
How so?
We know down to the dollar
16
what Citizens United plans to spend on both
17
producing its film and disseminating it. Imposing
18
the types of burdens on a general interest news
19
organization that would require it to parse out
20
reporter time or production time or things like
21
that would be much more substantial than for an
22
organization that says, "This is exactly how much
(866) 448 - DEPO

Document: 01019354934
Page: 110

89
1
we are going to spend and this is how we're going
to spend it, and if you want to donate money for
it, great."
different business model really.
with that not only is --
That's not the way -- it's a
JUDGE TYMKOVICH:
And so, along
Well, you might need
another accountant to track.
But why is it so
hard to count the minutes?
organizations that say, okay, they have this many
Aren't there
10
minutes in favor of this candidate, this many
11
minutes against, you know, figure out what air
12
time costs?
13
complicated.
14
I mean, that doesn't sound all that
MR. GROVE:
It is doable.
The question
15
is whether the burden is commensurate with the
16
informational interest that comes along with it.
17
JUDGE TYMKOVICH:
Really, in our
18
context, does that burden justify carving them out
19
from other types of communicators.
20
MR. GROVE:
Well, and the answer is, in
21
the context of something like 9 News -- and in the
22
context -- and not just of 9 News itself but of
(866) 448 - DEPO

Document: 01019354934
Page: 111

90
1
their nightly newscast, which really is, again,
the focus of what we should be talking about here,
the informational interest isn't that great.
know, in a general sense, who's paying for 9 News
because we watch the commercials, unless we skip
through them.
United.
8
9
10
11
We
But we don't know that for Citizens
JUDGE TYMKOVICH:
We wouldn't know about
it, start-up newspapers, start-up periodical

either, or NPR, right?
MR. GROVE:
They don't advertise.

In a general sense, I mean,
12
NPR certainly does.
13
Foundation supports this type of coverage or that
14
type of coverage and if the Ford Foundation
15
donated $2 million for NPR to create some kind of
16
investigative report or attack ad or something
17
like that, then that's the sort of information
18
that would need to be disclosed.
19
We hear that the Ford
If you look back at Reader's Digest, and
20
this gets into the FEC regulations, but the
21
Reader's Digest case from 1981 in the Southern
22
District of New York where Reader's Digest is --
(866) 448 - DEPO

Document: 01019354934
Page: 112

91
1
you know, normally the communication that they use
is this magazine essentially.
investigation of Ted Kennedy and Chappaquiddick
and the Court in that case, and this is still good
law as far as I can tell, said that, well, you
know, what they're doing is really very different
than their normal press function.
raised money or they spent money specifically on
what amounted to a hit piece.
But they did an
And so, they
And when that
10
happens, whether it's a hit piece or a puff piece,
11
the viewpoint doesn't matter.
12
that's the sort of information, that's the sort of
13
communication that voters might want more
14
information about.
15
JUDGE HARTZ:
When that happens,
So that raises the
16
question when the Denver Post, you said -- if the
17
Denver Post produced a DVD, that would have to be
18
disclosed.
19
statute, you thought.
20
21
22
They would have to report under the
MR. GROVE:
Is that correct?
If the Denver Post did what
Citizens United is proposing to do here?

JUDGE HARTZ:
Yes.
(866) 448 - DEPO

Document: 01019354934
Page: 113

92
1
JUDGE HARTZ:
And what is the
informational interest there?
know from -- doesn't the reasoning you gave for
exempting the Denver Post apply just as much
there?
MR. GROVE:
Doesn't everybody
Well, for one, if they're
raising money specifically to do it, then there is
certainly an informational interest there.
just not something that the Denver Post in its
That's
10
normal media role would do. And so, if they step
11
outside that role, and this is Phillips
12
Publishing, Reader's Digest, this is what these
13
cases say.
14
engage in the type of communication that should
15
raise a red flag for folks who might say, well,
16
how did this come about, this isn't normally what
17
I'd see in a paper, I just got a DVD in the mail
18
from the Denver Post.
19
information that would lack the contextual cues
20
that normally accompany the readership of the
21
paper.
22
If they step outside that role and
JUDGE HARTZ:
That's the sort of
What contextual clues are
(866) 448 - DEPO

Document: 01019354934
Page: 114

93
1
you learning?
MR. GROVE:
JUDGE HARTZ:
Sure, so the Denver -Tell me what you're
learning.
I mean, it's the Denver Post, the same
people who have written all these editorials
you've read for years.
MR. GROVE:
JUDGE HARTZ:
9
10
What are you learning?

Well -Learning that 10 percent
of the cost of the production of the DVD was

raised from other people?
11
MR. GROVE:
Well, I think it's hard to
12
say what we learned without actually having the
13
information in hand.
14
examples.
15
put out a solicitation and it was going to be a
16
hit piece on a certain candidate and, choose your
17
billionaire, Michael Bloomberg, Charles or David
18
Koch, somebody like that funded the entire thing
19
on one side or the other.
20
But I can think of some
So, let's say the Denver Post got --
That's certainly the type of information
21
that we see all the time in campaign disclosures.
22
With the recall elections last year, there was --
(866) 448 - DEPO

Document: 01019354934
Page: 115

94
1
it was highly publicized that the NRA on one side
and Michael Bloomberg on the other were making
independent expenditures for or against the
recalls.
piece of information being in any -- being in any
sort of form that I can definitely describe here
because it's --
8
9
And so, I can't commit to a particular
JUDGE HARTZ:
But normally, before we
allow some restriction on speech, we need some
10
evidentiary support for why this would help. And
11
when you have a repeat player, as I mentioned
12
before, not only do you learn about them but also
13
it's harder to see disclosures of earmarked
14
contributions are less valuable because there's no
15
indication of where the major source of the money
16
is.
17
United largely, then what do you learn if there's
18
somebody that says, I want this to go to hit
19
pieces in Colorado?
20
you're missing the most important information
21
which is who's generally funding Citizens United,
22
are you not?
If the Koch brothers are funding Citizens
Are you -- you're missing --
And why is that valuable to voters?
(866) 448 - DEPO

Document: 01019354934
Page: 116

95
1
It's almost a distortion to voters.
MR. GROVE:
I think both would be
valuable.
I think the question is, from a
constitutional perspective, what information can
actually be required.
made it clear that going and digging into the
general finances of a corporation, be it profit or
nonprofit, is not going to be acceptable.
dates all the way back to NAACP v. Alabama.
And the Supreme Court has
That
And
10
sure, it would be great if we knew exactly who was
11
funding every single penny of not just Citizens
12
United, but any organization.
13
that has failed a couple of times in Congress
14
tried to get that sort of information out.
15
JUDGE PHILLIPS:
The Disclose Act
Can I ask you a
16
question just to make sure I understand what your
17
position is on what if Citizens United threw up
18
its hands and said, this is so burdensome it's not
19
worth it, we're not going to disclose who our
20
donors are and we have an agreement with them or
21
something.
22
Instead what we're going to do for the
(866) 448 - DEPO

Document: 01019354934
Page: 117

96
1
next 30 days is buy six pages of the Denver Post
and we're going to put a transcript of everything
in that video with lots of pictures which
corresponds to the same thing and in fact is going
to reach a lot more people. Would it -- is it your
position that Citizens United would have to
disclose its donors in that instance?
8
9
10
MR. GROVE:
advertisement.
Sure, that's an
If they buy the space, that's
pretty easy.
11
JUDGE PHILLIPS:
12
JUDGE TYMKOVICH:
Okay.
I want to come back to
13
your comments at the introductory portion on the
14
digital platform.
15
movie on its digital site, you know, basically as
16
a news item, you know, it's become newsworthy now
17
and they want people to see what the argument was
18
about.
19
If the Denver Post showed this
So they just run it on its news site.
20
You click there and you can watch the movie. It's
21
not being funded by anybody.
22
their news judgment.
It's just part of
And then similarly, the 9
(866) 448 - DEPO

Document: 01019354934
Page: 118

97
1
News prints the transcript on its website so you
can read it and they post it there as a news item.
None of that would raise any problems under the
exemption regime, would it?
MR. GROVE:
Well, I think that we
wouldn't even get there because if 9 News is just
printing the transcript, unless they bought it for
more than $1,000, or if the Denver Post just got a
hold of this thing that costs 10 bucks and they
10
post it on their website -- I'm assuming there
11
wouldn't be any copyright issues -- then it's
12
likely that they would never even reach the
13
expenditure or electioneering communications
14
spending threshold.
15
that would be an issue in that.
16
focused on --
17
And so, I don't think that
JUDGE TYMKOVICH:
That's why we're
Why wouldn't you look
18
at the value of the -- wouldn't you look at the
19
value of the broadcast rather than the cost of the
20
digital dissemination?
21
22
MR. GROVE:
Well, that's not what the
electioneering --
(866) 448 - DEPO

Document: 01019354934
Page: 119

98
1
JUDGE TYMKOVICH:
It seems to me that
the expenditure would be kind of the impact.
know, let's say the editor, you know, was pro --
you know, the editor had a friend who was on the
Citizens United board and wanted to disseminate
this, you know, free of charge. So there's no
money exchanging.
you know, political position.
kind value of that broadcast could be enormous.
10
You
It's purely an ideological or,
MR. GROVE:
You know, the in-
That's certainly true.
But
11
what our statute says is that you look at how much
12
it costs to produce it, and -- or costs to
13
disseminate it.
14
electioneering communications.
15
-- we could go into these hypotheticals about
16
folks, you know, coordinating behind the scenes
17
and things like that, and sure those would be
18
interesting. But I don't think that that's what we
19
have here.
20
21
22
That's certainly true in
JUDGE TYMKOVICH:
I mean, if there's
I don't think so
either.
JUDGE HARTZ:
Let me -- if Citizens
(866) 448 - DEPO

Document: 01019354934
Page: 120

99
1
United were treated as a book publisher, what
would its obligations be here?
there's no reason to treat its production and
circulation of DVDs differently from a book
publisher doing the same with books. What would
its obligations be here?
MR. GROVE:
We decided that
If it satisfied a regular
business exception, then there wouldn't be a
disclosure requirement that goes along with that.
10
JUDGE HARTZ:
11
to publicize the book?
12
MR. GROVE:
Even for placing ads on TV
It depends on -- it depends
13
the content of the ad.
It depends on if it's an
14
electioneering communication or not.
15
that you start to move towards what is going to
16
need to be disclosed.
17
book and learn why John Hickenlooper is unfit to
18
be Colorado's governor," or, "Learn why you should
19
vote against Colorado's governor," just to make
20
sure we have one of the magic words in there -
But I think
If the ad said, "Read this
21
22
JUDGE TYMKOVICH:
Or just learn the
(866) 448 - DEPO

Document: 01019354934
Page: 121

100
1
truth about a candidate.
2
3
MR. GROVE:
electioneering communication --
4
5
That's more of an
JUDGE TYMKOVICH:
Non-expressed
advocacy, yes.
MR. GROVE:
Right.
That's
electioneering communication, not express advocacy
under Colorado's definition.
answer your question, there are -- the lines can
But I guess to
10
be difficult to draw.
11
advertisement, would cross it.
12
of time.
13
14
JUDGE HARTZ:
I think that that one, the

I see that I'm out
You're not out of time,
sorry.
15
MR. GROVE:
I tried.
16
JUDGE TYMKOVICH:
17
JUDGE HARTZ:
I know the feeling.
You're doing well.
If it
18
were considered a book publisher and it advertised
19
and you say it crossed the line, would the only
20
donors that had to be disclosed be those who
21
earmarked for the advertising as opposed for the
22
whole project?
(866) 448 - DEPO

Document: 01019354934
Page: 122

101
1
MR. GROVE:
Assuming that there was --
there were any donors for the book project, then
yes.
disclosed is the communication -- is donations
that are specific to the communication itself.
The only thing that would have to be
JUDGE HARTZ:
MR. GROVE:
To the ad.
To what needs to be
disclosed to the electioneering communication.
JUDGE HARTZ:
And the reason you -- the
10
only reason you gave earlier for not treating it
11
the same as the book publisher is you don't think
12
the language of the statute or the Constitution
13
would permit that distinction to be made by the
14
secretary.
Is that correct?
15
MR. GROVE:
16
JUDGE HARTZ:
17
MR. GROVE:
18
19
I think that's right, yes.

Okay.
If the Court has no further
questions, thank you for your time.

JUDGE HARTZ:
How about giving Mr. Olson
20
three minutes and we'll see if we can -- you think
21
you can get it all in three minutes? We'll see.
22
MR. OLSON:
I don't know how effective I
(866) 448 - DEPO

Document: 01019354934
Page: 123

102
1
will be in three minutes.
2
3
4
JUDGE HARTZ:
effective?
MR. OLSON:
I don't think it will be
much longer than that.
would like to make.
JUDGE HARTZ:
MR. OLSON:
How long do you need to be
Court's time.
I just have a few points I
Okay.
But I know I'm taking the
So I'll cut it as close as I can.
10
The definition of an electioneering communication
11
doesn't depend upon where the money came from or
12
anything like that.
13
you're in the media and there may be certain
14
circumstances -- but I have no idea what they are
15
-- based upon the discussion today.
16
You get an exemption if
But the definition of an electioneering
17
communication is a communication that identifies a
18
candidate during an election period.
19
question about whether we challenge this statute
20
regime as applied. It's right in the complaint on
21
page 18 of the complaint which is at A-25 of the
22
appendix. It's also in our brief.
You asked a
(866) 448 - DEPO

Document: 01019354934
Page: 124

103
1
There is a content distinction here.
Even if you left out all the other things about
motive and attack ads and traditional and so forth
because the Turner 1 case, which is -- talks about
this, there's a differentiation between different
types of media.
particular media aren't the reason or the
rationale for the differentiation.
distinction based upon the type of media.
10
11
But the characteristics of the
JUDGE TYMKOVICH:
MR. OLSON:
13
JUDGE TYMKOVICH:
15
But Turner didn't
apply strict scrutiny though, did it?
12
14
So it's a
Pardon me?
I don't think Turner
applied strict scrutiny.

MR. OLSON:
Well, I can't recall because
16
I don't have that in front of me.
17
plenty of cases that say if you are distinguishing
18
between a medium of communication and unless you
19
have a very high justification for it, it's
20
presumptively unconstitutional.
21
22
We have that here.
But there is
We have distinctions
based upon whether it's a movie or whether it's a
(866) 448 - DEPO

Document: 01019354934
Page: 125

104
1
newspaper.
it's on -- if it's a blog, it might be exempt but
some blogs might not be exempt.
blog might be able to do something.
else's blog might not be. So we learned a lot
about blogs today and I don't know you can discern
any of that from the statutes.
8
9
And I'm even learning today that if
A Denver Post
Somebody
You are talking about a very, very vague

statute that has a great deal of elasticity. It
10
puts discretion in the hands of the enforcer.
11
makes the person who wishes to speak about the
12
most important things that we talk about in this
13
country -- elections, politicians and whether
14
people should throw the rascals out or not --
15
those are the most important things that we talk
16
about.
17
It
This is the most important time that we
18
talk about them and we've got a statutory regime
19
here that imposes burdens on some people who wish
20
to talk.
21
22
There was some discussion about whether

or not Citizens United has a track record.
Of
(866) 448 - DEPO

Document: 01019354934
Page: 126

105
1
course it has a long track record.
making movies for a number of years, 24, 25 movies
already.
rely on that too much because the new guy that
just walks in and wants to speak shouldn't be
handicapped because he's the new guy.
statute favors the traditional --
8
9
It's been
But it shouldn't -- we shouldn't really
JUDGE HARTZ:
If this
Well, let me ask you about
that because it seems to me there is a difference
10
the new guy and someone with a track record.
11
that is if someone has a track record, you know
12
where they're coming from.
13
that and if it's a new guy, you don't have a track
14
record.
15
There's information in
But the people who contribute to making
16
that independent expenditure may have a track
17
record and therefore it would be useful
18
information.
19
And
MR. OLSON:
But it depends upon the
20
track record, doesn't it, Your Honor?
21
long is the track record?
22
record is it?
I mean, how
What kind of a track
And is the speech itself going to
(866) 448 - DEPO

Document: 01019354934
Page: 127

106
1
be judged or regulated by the length of the track
record, short, long --
JUDGE HARTZ:
Isn't that what happened
under Federal Election Commission, when you had
three or four DVDs, movies put out by Citizens
United?
time you had 14, I think it was, you got the
exemption.
regulator to do?
10
You didn't get the exemption.
By the
Isn't that a reasonable thing for a
MR. OLSON:
From a constitutional --
11
what the Federal Election Commission was deciding
12
whether this was identical, not because of the
13
length of the track record, but because of what
14
Citizens United was doing was reporting opinions
15
or ideas about political subjects, which is the
16
same that the Denver Post, the New York Times, NPR
17
do.
18
They may do it in different ways.

But if we're going to have a government
19
putting its thumb on the scale, however lightly
20
it's putting it on the scale, and then deciding
21
because of the length of the track record, the
22
nature of the donors -- we heard something today
(866) 448 - DEPO

Document: 01019354934
Page: 128

107
1
from the government about it depends about where
the money comes from or how much money comes in.
This is regulating speech, and it
shouldn't be based upon those kind of things. And
we've heard so much today about attack ads and
negative ads and things like that.
might be good reasons why citizens want more
information about this speaker and some citizens
may want more information about that speaker.
And there
10
if we have an evenhanded regulatory regime that
11
imposes burdens equally, that might pass
12
constitutional muster.
13
But
But if the government has decided in a
14
statute and a constitutional provision, in
15
regulations or statements that they make up as
16
they go along or after the fact, then that's an
17
impermissible regime, and it can't be workable
18
because it makes it burdensome and risky to take a
19
chance to speak.
20
And that's what this is all about here,
21
that it is not going to be damaging to the
22
citizens of Colorado to apply measures such as
(866) 448 - DEPO

Document: 01019354934
Page: 129

108
1
this equally across the board, no matter who the
speaker is, because if you have a newspaper, you
might be a brand new newspaper. We heard that a
brand new newspaper would be okay, or you might
have one that's like the New York Times that's
been around for a hundred years.
newspapers are created equally.
8
9
JUDGE HARTZ:
But the
Just so you'll focus --
one more minute is what you're going to get.
The
10
time shown there is where you've gone over your
11
three minutes.
12
13
MR. OLSON:
Yes, and I'll just wrap up
now then.
14
JUDGE HARTZ:
15
MR. OLSON:
One minute.
Your Honor, I think that
16
looking at this statute as a whole, it's
17
discriminatory based upon who you are, what you
18
say, how you say it, when you say it and the
19
medium that you use to say it.
20
unconstitutional on its face.
21
22
And that is
It's unacceptable under the First

Amendment, our most important value and the most
(866) 448 - DEPO

Document: 01019354934
Page: 130

109
1
important subject that we can talk about. This
statute does not meet any of the tests that the
Supreme Court has articulated.
JUDGE HARTZ:
MR. OLSON:
JUDGE HARTZ:
Thank you.
Thank you, Your Honor.
It's always tough when you
have an important decision to make in a short
time.
good advocates on both sides and that will help
10
And we've been blessed with having very
us, however we decide this case.
11
So thank you very much, counsel, and
12
amicus briefs were helpful also.
13
recess, and we'll try to get something to you
14
soon.
15
Court is in
(WHEREUPON, the hearing was adjourned.)
16
17
18
19
20
21
22
(866) 448 - DEPO

Document: 01019354934
Page: 131

110
1
CERTIFICATE OF TRANSCRIBER
2
3
I, BENJAMIN GRAHAM, do hereby certify that this
transcript was prepared from audio to the best of
my ability.
I am neither counsel for, nor party to this action
nor am I interested in the outcome of this action.
8
9
10
11
12
13
14
_____________________
15
Benjamin Graham
16
17
18
19
20
21
22
(866) 448 - DEPO

Document: 01019354934
Page: 132

Page 1
$
$1,000 37:12 87:1
97:8
$2 90:15
$200 87:5
$225,000 15:17 16:5
17:3,5
25 105:2
A-25 102:21
27 54:20 76:19
ability 110:5
28 75:10
able 55:6,7 68:20

78:20 82:18 104:4
adequately 47:18
above-entitled 1:12
administering 12:16
absent 19:7
29th 16:19
3
addressed 14:18
38:11 58:2
adjourned 109:15
3 3:3
abstract 67:7
administrative 43:1
48:1,5
acceptable 95:8
adopted 57:4
$251 87:10
30 58:17 68:3 69:3,4

96:1
$50,000 9:18
38 3:4
accompany 92:20
ads 17:12 21:8,18,20

85:11 99:10 103:3
107:5,6
$250 8:8 87:7,8
$550,000 15:7,9 16:4

1
1 103:4
10 79:13 88:8 93:8
97:9
1050 2:7
4
49 3:6
accountant 89:7
4th 16:20
accurate 37:2
5
5,000 9:17
10-second 67:19
14 106:7
6
69 3:7
1525 2:4
15th 16:19
18 102:21
across 16:17 108:1

act 7:10 12:20 95:12
activity 41:5 71:3

acts 18:5
1981 90:21
80257 1:18
2
2,000-pound 64:8
20036-5306 2:8
9
9 31:4 33:22 34:5,14
71:18 72:17 88:2
89:21,22 90:4
96:22 97:6
2010 85:9
90 88:7
2014 1:10
915 85:11
2-1 55:1
24 75:9 76:14 105:2
advertised 100:18
7(a)(b)(3 29:12
1823 1:17
20 68:3 76:16
acknowledge 58:1
70:21 80:6
7 1:10
8
80203 2:4
advances 85:17
advertise 30:16 31:1
90:10
activities 6:14 11:6

34:8
advance 13:2
achievement 63:4
action 43:16 110:6,7
14-1387 1:3 5:1

15 79:13
account 17:22
18:1,6 64:19
advertisement
20:11,16 24:6
30:19,20 31:8 96:9
100:11
advertisements 15:2
advertising 17:6
21:1 22:19 27:3
29:20 35:3 39:19
72:6,12,15 100:21
actually 5:21 16:15

28:2,14 33:19
64:22 77:22 83:21
84:12 86:13,21
93:12 95:5
advocacy 11:6 23:2

35:1 36:1 73:6
74:4 100:5,7
ad 15:21 19:19
20:1,3,8,10 23:5
24:8,13 25:11 30:1
43:16 45:1 46:15
60:14 80:13 90:16
99:13,16 101:6
advocating 13:4
additional
36:7,17,18
address 22:9 87:3
(866) 448 - DEPO

advocates 109:9
affirmatively 67:12
afterwards 8:17 9:3
27:12
against 19:18
52:20,21 89:11
94:3 99:19
age 27:5
Document: 01019354934
Page: 133

Page 2
agency 12:16
announced 48:5
agenda 72:18
answer 12:13 23:18

31:14 52:12 58:21
68:14 77:7 79:19
86:12 89:20 100:9
aggregate 65:13
49:9 67:2 77:14

102:20 103:14
applies 26:6 62:16
attack 5:13 28:16

30:14 43:16 45:1
46:15 60:13 90:16
103:3 107:5
answered 12:9
31:22
apply 10:8 48:11

67:18 68:13 76:1
92:4 103:11
107:22
answering 4:16
appreciate 49:1
approve 55:17
Alabama 95:9
answers 7:14 51:12

55:14,15
attorney 2:3 40:22

41:14 56:4
approved 50:9
attorneys 41:3
alleged 15:18
answer's 29:2
allow 76:20 94:9
anticipated 27:8
area 25:15 42:17

45:12 66:19
attributes 27:10
34:9
already 42:12 85:22

105:3
antiestablishment
71:13
aren't 80:4 87:14

89:8 103:7
audio 110:4
alternative 70:17
anybody 96:21
argue 4:15 50:10
author 34:19,21
35:1,4
am 110:6,7
anyone 55:12 59:16

71:3 72:9
arguing 38:22
authority 12:19 29:6
argument 4:12 22:7

24:19 25:21 33:8
46:6 47:22
54:14,18,20 57:16
64:7 66:12,13
68:22 79:6 96:17
Avenue 2:7
apology 4:2
arguments 38:10,15
47:8
B
Bailey 28:13
appeal 43:15
Arkansas 50:19
balance 54:1 56:17
appeals 1:1,15 5:19

58:15
articles 19:12 26:14
balanced 43:11
articulated 109:3
ballot 7:3 48:16

56:22 57:6 59:14
ago 44:17
agreement 95:20
ahead 4:21 9:1 27:7
53:16
air 89:11
ambiguities 40:18
42:3
ambiguous 38:19
64:5
anything 19:2 21:11

42:11 55:20 59:12
65:14 73:5 102:12
amend 12:12
anyway 32:6 87:6
amendment 41:7,9
45:4 48:17 50:7
52:5 54:20 55:18
56:2 57:10 59:12
61:16 62:1 68:19
76:19 77:1,4
108:22
anywhere 40:5
amicus 109:12
appearance 54:7
65:1
among 46:10 62:8

amount 35:2 68:4
86:18 87:21
appear 27:11
appeared 33:1
articulates 64:2
attenuated 64:5
avoid 23:10 64:22

away 4:20 57:15
awhile 84:18
bandwidth 35:19
aspect 14:22
banner 15:22
aspects 27:12
bans 70:18 71:1

based 32:16 41:18
44:7,14 46:11
49:19 50:14 56:8
57:19 60:12
62:8,14 66:21 71:5
102:15 103:9,22
amounted 91:9
analysis 50:12
appellant 4:15 38:14
asserting 78:14
analyze 71:20
appendix 102:22
assess 75:11
analyzed 77:13
application 41:10
58:1
assume 21:18
applied 10:8 48:11
attempting 61:3,4
as-applied 47:17
49:14
appears 23:21 47:7

75:1 79:1
analyzing 70:3
attacking 7:8 81:10
assuming 28:4 30:13

97:10 101:1
(866) 448 - DEPO

bank 17:22 18:1,6
Document: 01019354934
Page: 134

Page 3
107:4 108:17
basically 28:15
96:15
basis 46:2 47:17
48:9
BeauprezHickenlooper
32:20
became 57:5
become 32:12 96:16
becomes 24:14
beforehand 8:15
94:2
blurred 27:4
board 16:17 98:5
108:1
bonus 83:11
book 6:15 14:4,5
28:19
29:3,10,21,22
30:1,8,16
34:20,21,22 39:22
40:2,7,11
99:1,4,11,17
100:18 101:2,11
behind 77:3 81:13

98:16
books 29:11,13,22
31:1 39:21
40:3,8,15 84:8
99:5
believe 47:19 50:16
bought 9:9 97:7
benefit 82:5
box 36:7,17 56:22

60:8,9
behalf 1:18 2:2,5 5:3

38:13
Benjamin 110:3,15
best 23:17 24:3
71:17 110:4
better 55:12 77:1
bias 73:5
billboard 5:8
brand 108:3,4
brief 14:18 24:19
38:16 43:6,14
44:21 54:4
60:2,18,22 61:1
66:11 77:10
102:22
billionaire 59:9
81:17 93:17
briefs 4:4 109:12
binding 40:21
bring 42:22 52:15

66:10
blessed 109:8
blog 27:14
28:15,16,17 34:8
104:2,4,5
blogger 26:7 27:1
34:10,15 52:21
bringing 52:14 53:1

broad 6:8
broadcast 31:15,17
32:14 33:22
44:2,19 71:10,22
72:9 97:19 98:9
87:19
broadcasters 31:20
39:13 50:4 57:11
59:6 63:12
broader 18:12 36:4
75:19
brothers 94:16
brought 59:19 66:11
Brown 70:2
Buckley 65:3,17
66:1
bucks 81:11 97:9
budget 15:8 16:4
burden 46:16
50:18,22 58:8,10
64:6,7,11 68:1
69:22 88:12
89:15,18
burdens 41:18
48:12,13 51:15
53:3,8,11 57:18
58:22 88:18
104:19 107:11
burdensome 43:4
69:19 95:18
107:18
business 19:14 21:8
29:9,11 30:4,6,17
34:6 40:10,15,17
41:5 45:8 46:1
47:2 56:7 60:19,20
61:3 80:21 89:4
99:8
buy 8:16 9:10,16,17
12:5 24:9 29:21
30:1 39:20 96:1,9
blogs 27:8,22
104:3,6
broadcasted 5:7
buying 9:2,3,4
broadcaster 32:13
44:4 61:20 72:22
buys 8:10
Bloomberg 93:17
Byron 1:16
(866) 448 - DEPO

C
cable 31:15
campaign 12:17
24:15 69:11 93:21
campaign-related
71:2
candidate
5:11,12,13 7:9
13:5 16:16
19:5,8,17,18,19,22
20:1,3 21:11
24:1,8 25:1 30:15
33:6 34:22
39:13,15
63:20,21,22 65:20
66:6 67:15
72:20,21 81:9
82:20 85:14 87:4
88:5,8 89:10 93:16
100:1 102:18
candidates 15:20
41:11
carry 66:20
carving 89:18
case 1:2 5:1 8:9,14
10:12 14:17,20
22:1 28:12 35:8
42:5 50:19,20
52:15 53:4 57:2
58:2,5 63:6,16
65:12 66:17 68:17
69:9 70:1,8,16,21
71:5 72:8 74:2
77:12 78:16 82:8
86:8,14 88:13
90:21 91:4 103:4
109:10
cases 28:6 45:18
66:3,19 69:16
80:3,4 92:13
103:17
Document: 01019354934
Page: 135

Page 4
category 67:10
93:16
36:19 39:1 62:13

72:13 75:3 95:6
ceiling 71:2
Circuit 1:1,16
center 41:7
circulating 74:19
clearer 38:10
central 45:4 48:17

49:16
circulation 99:4
cert 5:21 6:2
circumstances
102:14
clearly 23:20,21
30:9 32:21,22
48:12 65:9
74:12,17
certain 45:14,22
46:1 70:18 93:16
102:13
certainly 9:12,13
17:11,17 23:19
27:22 30:18 32:5
70:1 73:11 74:10
78:15 88:10 90:12
92:8 93:20
98:10,13
CERTIFICATE
110:1
certify 110:3
cetera 26:16
challenge 42:21 47:9
48:10 49:13,14,17
52:9,11 53:2 67:2
77:1 102:19
challenged 47:20
49:12 71:1
challenges 69:11
chance 107:19
Chappaquiddick
91:3
characteristics
103:6
circumstance 17:10
coming 67:15
75:12,18 80:14
81:1,14,21 87:20
88:6 105:12
command 36:21
commensurate
89:15
click 96:20
comment 42:10 66:7
cite 28:12
clicked 35:20
commentary 26:15
cited 28:12
client 47:17 49:9

52:17 68:16
comments 96:13
citizen 40:22 42:21

citizens 1:2 3:4 4:14
5:1 6:16 8:16 9:5
11:5 12:4 15:6
18:4 19:3 20:17,22
21:5 23:9,10 38:14
39:4 40:16 44:4,12
45:5 46:5 47:1
48:3,11,14 50:2,3
54:19 56:22 57:13
58:1,5,16 59:21
60:8,20 61:13
64:16,20 65:4,5,9
67:3,17 68:10
72:12 75:9,11
76:1,2,11 79:12
82:12 83:2 84:8
85:8,18 86:3,13
88:13,16 90:6
91:21 94:16,21
95:11,17 96:6
98:5,22 104:22
106:5,14
107:7,8,22
claims 71:20
charge 12:16 98:6
clarified 40:2
Charles 93:17
class 44:1
check 36:7
classification 62:4
checking 36:17
clause 6:9,11
choose 62:8 67:21
clear 11:4 35:9
clock 4:15
commercial
71:19,20,21 72:2
85:12
close 49:7 53:13

68:18 102:9
commercials 67:19
90:5
closed 37:15
closely 78:13
Commission 28:13
47:1 51:11 52:8
106:4,11
clues 92:22
commit 94:4
CNN 31:16
committee 17:21
18:15,20 19:10
30:11 82:20 87:13
client's 46:17
CO 2:4
colleague 12:11
collect 24:20
Colorado 1:9,17 2:2
3:3 6:1 7:4,11
10:21 16:18 19:6
24:11,13 27:22
45:8 51:22 52:3,16
54:19,22 58:19
59:4,6 60:2 66:7
76:4,12,15 77:5
78:1 86:20 94:19
107:22
Colorado's 10:21
73:21 76:7 80:1
99:18,19 100:8
comes 21:15 24:11
41:15 76:6 81:20
83:12 89:16 107:2
(866) 448 - DEPO

committees 16:16,17
19:4
communicated 13:7
14:2 61:12
communication
5:6,7,13 6:13
7:10,16,21 8:5,7
11:10,11 12:3
13:15 14:20 15:14
16:3,5,8 18:13
22:4 24:15 26:3
27:20 28:5,20
30:19 32:18
33:1,2,3 35:6
36:4,8,12 37:10
38:3 39:18,20
41:20 43:21 45:2,3
46:12,16 57:20
Document: 01019354934
Page: 136

Page 5
73:19 79:22
84:10,14 87:2
91:1,13 92:14
99:14 100:3,7
101:4,5,8
102:10,17 103:18
communications
7:2,3 10:2,9
14:14,16,19
15:18,20 16:7,9,14
19:13 31:9 47:2
56:11 72:11 78:3
84:15 86:22 88:1
97:13 98:14
communicative
14:22
communicators
89:19
communiques 74:16
companies 55:5
company 11:12
35:11
compelling 53:22
54:11 73:8
complaint 49:15
102:20,21
completely 52:18
79:10 82:8
complicated 89:13
comply 58:22
component 69:11
components 86:8
con 88:4
conceivably 25:10
53:12 54:2
concern 65:18
concerned 68:17
84:6
concrete 75:9
contains 16:7
conduit 35:17
content 20:4,13
27:18 31:10 32:2
34:2 41:19 43:17
44:9 53:9 57:21
60:1,13 61:6 62:14
71:6,9,14
72:1,2,14 74:1
75:19 78:19 99:13
103:1
confusion 86:7
Congress 38:21
95:13
congressman 24:10
connected 63:20,22
Connecticut 2:7
connection 50:21
54:10 63:13,14
66:9
conservatives 44:11
consider 8:12,13
50:8 75:6
consideration 50:7
considered 7:17,18
9:19 18:9 26:11
32:2 66:14 100:18
considering 50:1
consistent 16:7
65:16 66:1
constitution 36:22
59:17 101:12
constitutional 25:21
38:17 44:14 50:17
52:5 53:19 57:5,10
59:11 86:4 95:4
106:10 107:12,14
constitutionality
4:13 51:6 84:12
87:13
constitutionally
45:20 57:13 84:1,4
construed 36:22
52:7,10
contain 15:18,19
contained 29:10
content-neutral
59:18
context 27:3 58:3
65:12 68:8 72:4,5
74:9,22 77:17 78:5
79:12 86:14
89:18,21,22
14:8,9,12 58:17
86:9 95:7
corporations 86:10
corporation's
85:16,17
correct 5:14 7:4,5
18:22 19:1
23:4,6,16 25:8
28:21 36:5 37:1
91:19 101:14
corresponds 96:4
corruption
54:7,8,12 63:14
64:1,18,22 65:1,21
70:14
contextual 92:19,22
cost 25:10 93:9

97:19
contribute 19:5
45:13,14 51:18
105:15
costs 31:6 39:18

41:2,3 89:12 97:9
98:12
contributing 39:10
63:21 81:9
counsel 3:3,4 4:10

40:1 42:19,20
109:11 110:6
contribution 39:3
59:9 65:13 70:7
83:14
contributions 64:21
65:2,22 69:15,16
70:15 94:14
contributors 39:2
46:7
convince 82:6
coordinated 65:20
coordinating 98:16
coordination 19:8
30:8,14,16
copyright 97:11
core 41:7 45:4
corporation
(866) 448 - DEPO

count 89:8
country 21:21
104:13
countywide 7:7
couple 44:17 76:3
77:8 81:11 95:13
course 12:15 19:14
30:5 34:5
40:9,14,17 42:14
45:7 46:22 51:5
59:18 60:19,20
61:2,3,9 65:10
105:1
court 1:1,15 5:19 6:1
38:13 40:10 41:6
42:16 43:2
44:13,17 45:12
Document: 01019354934
Page: 137

Page 6
46:3,4,20 47:8
49:11,22 51:21
52:4,16 53:4,6
54:5,9 56:9
58:6,15 59:19
62:13 63:15 65:16
66:1,10,16,18,21
67:13 69:8,13,17
70:5,10 72:12
77:13 82:11,14
83:20 85:10,21
86:9 91:4 95:5
101:17 109:3,12
Courthouse 1:17
courts 12:19 67:22
Court's 27:6 102:9
coverage 39:10,11
73:3 90:13,14
covered 25:22 31:16
34:2 36:5 39:14,21
40:1,2,4
covers 26:3
create 17:20 90:15
created 108:7
creating 14:20 15:8
creation 17:21 31:7
credit 55:9
cross 22:7 31:8
33:17 100:11
crossed 100:19
crossing 24:18
cue 79:8
cues 74:1,6,8 78:4,8
79:6,11 80:1,4
92:19
curious 47:9
cut 102:9
Appellee 1:6
D
D.C 11:16
damaging 107:21
danger 63:22
dates 16:18 95:9
David 93:17
days 96:1
deter 54:8 64:22
deference 41:13
determination 47:14
definitely 94:6
determine 72:15
85:16
definition 5:5 9:22

10:1,2,11 13:1
18:11,12 28:1
35:22 36:2,5 37:16
100:8 102:10,16
determined 23:16
determines 23:7
deterring 70:13
definitions 40:5
devoid 82:8
Delaware 7:9
devoted 27:15
delivered 5:9
dicta 65:15
dealing 58:11
Democrat 44:10
dictionary 61:14
deals 48:16
Democrats 27:16
differ 7:15
debate 32:20 70:22
difference 26:6
27:2,19 44:1
55:16,21 105:9
decide 12:5 56:10

58:16 83:20
109:10
Denver 1:9,17 2:4

20:2,7,8,22 25:18
26:5 31:5
32:1,6,9,16,20
33:4,13 59:1
60:9,10 79:9
91:16,17,20
92:4,9,18
93:2,4,14 96:1,14
97:8 104:3 106:16
decided 52:6 99:2

107:13
depend 40:7 42:14

43:5 58:7 102:11
decides 72:18
depending 16:21
31:10
differentiation
103:5,8
depends 24:16 52:13

99:12,13 105:19
107:1
differentiations
45:22
DC 2:8
deal 26:10 63:17
84:21,22 104:9
debates 39:14,15
debating 51:6
decades 39:1
December 16:20
deciding 61:7
106:11,20
decision 48:5 73:21
109:7
decisions 53:7 58:13
78:3
deposit 13:3
Deputy 2:3
decline 44:13
describe 94:6
deemed 33:11
describes 6:19
deep 25:14
description 34:20
defeat 13:5
designation 10:3
defend 48:9
designed 69:12
Defendants-
(866) 448 - DEPO

different 14:14
22:22 29:2,3
42:13,20 51:16
53:3 54:1 60:9
66:2 67:9 72:4,22
76:15 79:3,9,11
86:14 88:12 89:4
91:6 103:5 106:17
differential 41:18
differently 76:12
99:4
difficult 38:19 53:11
78:15 100:10
Digest 90:19,21,22
92:12
digging 95:6
digital 31:14 32:1
34:14 96:14,15
Document: 01019354934
Page: 138

Page 7
97:20
direct 69:15
82:13,17 83:5 86:6

99:9
34:8 46:2 50:17

distinguishes
46:10,11
donor 81:3,4
83:9,12 84:3,6
directly 5:8
disclosures 19:4
43:5 45:10
64:11,21 93:21
94:13
directs 10:4
discount 55:8
disagree 42:4 62:18

77:15
discretion 12:1 41:2

104:10
disappear 27:12
discern 104:6
discriminate 49:18
52:20,21
discharge 48:1
discriminates 57:17
distributing 7:21
10:21
disclaimer 14:10
17:9,12 67:6,8,9
68:6,12 82:17
discrimination 44:1
53:2 56:8 58:4
71:5 73:10
distribution 13:2
15:12 61:17
disclosable 14:21
discriminatory
108:17
district 46:20 54:5

59:19 66:10,16
90:22
discuss 58:3
doable 89:14
drop-in 45:1 61:21

74:3 80:12,13,20
84:22
discussed 10:12
doctrine 86:5
drop-ins 55:2
discussion 102:15
104:21
documentary 58:18
due 75:7
Doe 70:3
Dunn 2:7
dollar 87:1 88:15
duplicating 19:20
dollars 73:1 78:10

81:5 87:5 88:4
during 59:19 102:18
directed 84:13 87:22

directing 11:18 88:3
disclose 13:12 25:10

31:5 35:2,18 51:18
67:4 86:12
95:12,19 96:7
disclosed 8:4 16:10
18:2 21:5 25:6
87:3,6,17 90:18
91:18 99:16
100:20 101:4,8
disfavorable 73:2
disseminate 44:16
98:5,13
discloses 53:19,20
disseminates 72:3
disclosing 36:3 85:4
disseminating 72:1
88:17
disclosure 8:2
13:9,17 14:10
16:15,18 17:1,2
18:21 20:16 22:15
23:3,11 25:4 33:8
36:21
37:5,6,10,14,22
50:13 51:16
53:18,22 57:10
58:2,4,9 62:22
68:5,11 69:18,21
70:4,6,11,16 73:4
77:12,13,17
distinguishing 50:21
103:17
distortion 95:1
distribute 58:18
distributed 5:10
6:7,20 15:1 35:17
64:12
donate 11:7 89:2

donated 90:15
dissemination 97:20
donates 87:5
distinction 28:9 31:4

44:6,18,19 54:22
55:13 56:16 60:12
62:14 71:14 80:11
86:21 101:13
103:1,9
donation 7:18
8:11,13,20 10:5
11:8 13:15 18:3
35:2 37:4,9 86:18
87:16
distinctions
45:13,16 46:8
103:21
donations 7:13,17
13:12 17:22
83:11,19 84:13
87:11 101:4
distinguish 28:15,16
done 22:20 69:20
(866) 448 - DEPO

donors 7:13 25:6

37:7 82:9,10 95:20
96:7 100:20 101:2
106:22
donor's 8:3 82:10
door 23:22 79:2
doubt 33:16
doubtful 28:6
dozen 76:3
draw 24:3 27:6 31:3
32:15 44:14
100:10
drop 46:15
DVD 8:10 9:2 74:19

83:4 91:17 92:17
93:9
DVDs 8:10 76:15
99:4 106:5
E
earlier 101:10
earmark 9:20,22
10:9,18 11:20
13:12 39:7 81:3
82:9 83:11 84:20
85:5
earmarked 8:6 12:4
13:16 16:22 37:4
Document: 01019354934
Page: 139

Page 8
39:4 83:13,19
87:17 94:13
100:21
earmarking 8:2
11:7,13 36:20,21
37:14,18,21 84:11
earmarkings 17:2
earmarks 10:1
38:21,22 83:7
easy 96:10
ed 22:19
edge 11:2
102:18 106:4,11
electioneering 5:6
6:13 7:1,10,16
8:4,21 10:2,9 12:2
13:15 14:14,15,18
15:14,19
16:3,5,8,9,13
18:13 22:3 24:15
26:2 28:5,20 31:9
32:22 36:4,8,10,12
46:12 74:16 80:21
84:10 86:21 87:2
88:1 97:13,22
98:14 99:14
100:3,7 101:8
102:10,16
engaged 17:19 34:22

41:5 56:7 84:9
everyone 53:19
engaging 12:2 20:8
everything 16:17
57:12 96:2
enormous 98:9
evidentiary 94:10
enormously
38:17,18
ex 81:10
entire 18:3 93:18
exacting 62:6 63:1,2

77:10,14 82:16
entirely 75:3
entities 55:9
entitled 50:3,5 86:4
entity 7:21 12:1
13:11 32:14,17
36:3 37:3,8
exact 72:2
exactly 15:22 72:16

81:14 84:15 88:22
95:10
entry 17:8
example 6:15 25:11

27:1,11 32:19 39:8
50:1 53:4 59:20
70:10 71:17 87:12
equal 53:9
examples 93:14
exceed 37:11
electoral 56:11
equally 107:11
108:1,7
electorate 70:13
equipped 27:6
exception 29:9 86:11

99:8
equivalent 6:4
excess 10:7
editorials 93:5
eligible 31:16 32:12

35:12 78:8 79:14
exchanging 98:7
effect 42:12 43:15
eliminate 52:10
especially 63:17
65:19
effective 69:18
101:22 102:3
else 46:14 55:2

61:12 72:9
efforts 9:5
else's 104:5
either 26:2 33:6

36:21 42:1 72:19
90:10 98:21
emotional 43:15
edition 25:18
26:5,11
editions 26:20
editor 26:15
74:8,12,21 79:10
98:3,4
editorial 19:12,20
26:14 75:1,2 78:21
elastic 38:19
elasticity 104:9
elected 85:19
electing 56:22
election 8:5 10:22
13:4 16:20 27:11
39:16 45:11 46:22
51:11 52:7 58:20
68:18 72:18 85:14
elections 45:15
58:15 76:15 93:22
104:13
enable 38:10
encompassed 32:3
encumbrance 10:3
Esq 2:3,6 3:2,4

essentially 18:16
21:1 26:12 91:2
establishment 43:9
60:6 62:10 71:13
et 26:16
Ethics 28:14
endorsed 20:3
evaluate 55:6 74:2

78:4,20
endorsements 19:13
26:14
evaluation 80:17
endorses 19:22
enforcer 41:2
104:10
engage 92:14
evenhanded 107:10
even-handed 57:22
event 84:9
everybody 74:13
75:2 92:2
(866) 448 - DEPO

exempt 25:19 28:7

29:11,14 30:1,20
31:18,19 32:11
39:18 40:11 43:12
50:6 52:18 60:3
104:2,3
exempted 35:16
43:7
exempting 92:4
exemption 24:13
27:1 30:4 31:17
32:4,12 33:4,14
34:3 35:10,12
47:21 50:4 51:4
61:3 68:10,13
75:21 76:21 77:3,5
78:9 81:15 86:3
97:4 102:12
Document: 01019354934
Page: 140

Page 9
106:6,8
100:7
favorably 71:10
80:5,6 82:1 85:21
exemptions 6:9
19:12 26:13 46:18
expressed 10:14,17
23:1 74:18 85:21
favorite 61:19,20
five-pound 64:8
favors 105:7
flag 92:15
exempts 63:11
expressing 74:12
FEC 6:12 90:20
flat 70:18
exercise 56:21
expressly 13:4
FECA's 6:12
flexibility 62:7
exhaust 48:1
extend 65:6,7
FEC's 10:11
Floor 2:4
exist 6:5
extension 34:5
fly 48:6
existence 70:6 83:18

expanded 38:16
extent 16:6 26:2

37:14 45:21
expect 25:4
ex-wife 81:9
expend 73:1
Exxon 80:18
federal 46:22
47:11,14 49:8,11
51:3,6,10,15
52:6,7 68:9,12
106:4,11
feeling 100:16
focused 6:13 7:6

24:1 29:7 32:17
97:16
expenditure 7:15
9:22 12:3
14:4,9,19
17:15,17,20
18:9,11 20:4,9,20
21:12 22:3 24:14
25:7 26:3 28:20
33:17 35:3,21,22
36:2,9 37:16 39:5
66:5 67:6,8,10
80:12 82:19,21
84:2,11 86:19
87:2,16 97:13 98:2
105:16
F
face 47:13,15
49:6,19 108:20
figure 41:3 55:7

89:11
facial 47:8 49:13,17

52:9,11
fill 45:9
facially 50:22 51:1,3

53:1 64:13
facility 31:4
file 45:10
film 8:14 10:19,20
14:21 15:3,8,11,17
16:6 18:7 35:15
88:17
flyer 23:10 28:9

focus 29:3 66:15
70:22 90:2 108:8
focusing 65:14
folks 92:15 98:16
footnote 60:17,22
Ford 90:12,14
foreign 45:13 46:6
forfeited 66:12
fact 47:16 66:15

70:5 71:21 96:4
107:16
films 76:3
finance 12:17 69:12
form 16:1 36:7

58:19 73:20 79:22
94:6
factors 62:9
financed 78:9
forms 45:9
expenditures 10:7
12:22 13:19 14:15
18:1,20 54:10
63:18 64:19
65:2,18,19,20 67:4
69:15 70:15 74:17
82:13,17 86:22
87:22 94:3
factual 61:10
finances 95:7
formulation 77:15
failed 95:13
finding 42:8
forth 103:3
fair 10:10 36:14
finely 42:12
fall 27:22 33:3 76:20

78:11 87:1
Fire 4:20
Foundation
90:13,14
expenses 18:8
falls 13:17
expert 39:21 40:11
fascinating 69:9
explain 81:22 83:3
fashion 39:4 50:10
exposabout 24:7
favor 89:10
exposing 65:1
favorable 19:16
73:2
express 35:1 36:1
fallen 67:9
final 12:19
firm 17:6
first 4:11 5:11 16:4
31:12 41:7,9 45:4
48:17 50:7 55:18
56:2 59:12 61:16
62:1,13 68:19
77:1,4,8 82:7
108:21
fit 77:9,17,21 78:1
(866) 448 - DEPO

Fox 31:16 73:13

free 98:6
freely 66:8
friend 98:4
front 5:21 8:14
103:16
fruition 33:20
full 53:7 82:5
Document: 01019354934
Page: 141

Page 10
function 91:7
gotten 46:4
functional 6:4
govern 41:11
fund 8:13,15 9:4

11:6 37:9
government 53:22
56:10,11,18 61:7
64:17 106:18
107:1,13
funded 40:7 93:18

96:21
funder 8:4
funding 8:13,18
11:10,22 22:16
81:16,18 94:16,21
95:11
governmental 28:14
63:2 70:11
77:19,20
government's
60:17,22
funds 20:9 24:17
governor 99:18,19
funnel 18:5
Graham 110:3,15
grant 34:21 49:10
G
Gazette 23:10
general 2:3 11:8
18:4 26:4 27:9
37:8 39:8 40:22
78:17 80:11 83:15
88:18 90:4,11 95:7
generally 11:11
13:20 34:18 79:21
94:21
general's 56:4
generate 62:4
geographic 76:8
Gessler 1:5 5:2
gets 90:20
getting 25:14 80:16
81:2
Gibson 2:7
gift 13:3
given 49:10
giving 11:18 101:19
glossy 23:21
gone 68:15 108:10
granted 6:2
great 5:5 83:15 89:3
90:3 95:10 104:9
greatest 23:14
30:3,7,18
31:3,18,21 32:5,15
33:15 34:4,11,17
35:4,14 36:6,13,16
37:2,6,17 38:2
69:6,8 71:15
73:11,18 74:10,22
75:14
76:2,10,13,17 77:7
78:15 79:19 80:5
82:2,7 83:6,10
84:5 85:8 86:6,20
87:9 88:10,15
89:14,20 90:11
91:20 92:6
93:2,7,11 95:2
96:8 97:5,21 98:10
99:7,12 100:2,6,15
101:1,7,15,17
guess 4:2 100:8
Green 27:16
guy 61:21
105:4,6,10,13
GREGORY 1:14
guys 10:20 72:10
grey 25:15
ground 24:2 42:1
group 75:16
Grove 2:3 3:2,5
4:18,20 5:3,14,20
6:3,11,21
7:5,11,20
8:1,12,22 9:2,7,12
10:10,18 11:21
12:7,11,14
13:8,14,20 14:6,13
15:6,11,16
17:11,16 18:10,15
19:1,7 20:7,15,21
21:4,14 22:5,9,18
23:5,12,17 24:16
25:9,14,19
26:1,12,18,22 27:9
28:11 29:1,16
H
hand 5:9 15:2
44:20,21 70:13
73:13 93:13
handicap 64:9
handicapped 105:6
hands 40:19 95:18
104:10
5:5,17,22 6:6,18
7:1,8,12,22 8:9,19
9:1,6,9,21 10:16
11:14 12:6,9,12,21
13:13,18,22 14:7
15:4,10,15 17:9,14
18:8,14,18 19:2,11
20:12,17 21:3,6,17
22:8,11,20 23:7,15
24:5 25:5,12,17,20
26:9,13,19 27:7
28:8,18 29:13,20
30:4,13,22 31:11
38:6,8 47:3,6
48:19 49:4
51:2,8,22 52:3
53:15 64:15
67:1,14 68:9,21
69:2,7 74:5,15
75:8,15
76:8,11,14,22 80:9
82:4,22 83:8,22
84:16 87:8
91:15,22 92:1,22
93:3,8 94:8 98:22
99:10 100:13,17
101:6,9,16,19
102:2,7 105:8
106:3 108:8,14
109:4,6
Hartz's 87:4
haven't 25:15 42:16
46:4 68:15
happened 106:3
having 48:8 93:12

109:8
happens 69:10
91:10,11
head 22:12
hard 89:8 93:11

harder 94:13
HARRIS 1:13
HARTZ 1:13
4:2,19,21
(866) 448 - DEPO

hear 45:5 77:2 90:12

heard 1:15 38:15
40:3,6,10 51:10,12
58:6 74:7 106:22
107:5 108:3
hearing 1:12 47:22
Document: 01019354934
Page: 142

Page 11
109:15
heavily 59:18 70:5
Heist 11:16 12:8
81:4
held 52:21
help 94:10 109:9
108:6
impact 98:2
hypotheticals 9:13
98:15
impermissible
107:17
independently 66:8
implementation
79:18
indicated 28:18 67:2

80:2
implicit 9:16
indication 94:15
implied 10:14,17
individual 8:3 58:16

66:6 69:11
hereby 110:3
here's 88:11
idea 55:10 102:14
herself 82:19
ideas 61:12,15,17,18
106:15
he's 105:6
Hey 24:21
Hickenlooper 99:17
high 34:17 103:19
higher 87:15
highlights 69:10
highly 94:1
hiring 41:3
history 23:14
hit 24:22 91:9,10
93:16 94:18
identical 20:5,13
106:12
identified 39:3 62:9
identifies 102:17
identify 4:21 15:20
identity 41:19 43:18
50:14 56:8 57:19
71:6 82:11
identity-based
62:3,4
hold 97:9
ideological 27:14
43:12 60:6,11,12
61:14,15 62:11
86:2,10 98:7
HONARABLE 1:13
ignores 70:4
hoc 66:19,20
Honor 4:18 38:12

41:16 45:19 47:5
49:2 55:16 58:7
68:15 105:20
108:15 109:5
HONORABLE
1:13,14
hope 38:9
Hopefully 69:6
horse 64:9
hundred 81:11
66:4 69:14,22
74:16 80:12 82:21
84:10 86:22 94:3
105:16
hypothetical 33:19
73:12
I
I'd 31:13 77:2 81:22
92:17
helpful 38:9 109:12
97:10 100:11
102:8 104:1
I'll 7:13 9:17 13:1

14:15 20:1 24:19
81:10 102:9
108:12
illuminate 42:3
I'm 4:9 9:1,4 11:3
13:18 15:4,22
24:18 32:9 36:19
37:17,18 44:2
47:9,15 48:17
75:20 76:17 79:4,6
81:21 83:6,10
important 42:7 45:5

49:7 54:6
56:17,19,21 63:2
66:16 70:20
77:19,20 94:20
104:12,15,17
108:22 109:1,7
importantly 41:8
impose 53:10
imposed 48:13 53:8
88:12
imposes 46:16 71:2
88:11 104:19
107:11
imposing 51:15
88:17
imposition 50:18,22
53:3 57:18
Inc 75:16
influence 10:21
61:5,9
inform 54:16
information 55:2
63:15 64:3 70:12
78:11 81:12,13
83:9,12,16 84:17
85:1 88:9 90:17
91:12,14 92:19
93:13,20 94:5,20
95:4,14 105:12,18
107:8,9
informational 34:15
76:5,6 83:21 86:17
89:16 90:3 92:2,8
inhibit 58:10
initial 29:5
initiative 55:20
included 6:15
insert 20:18
21:1,9,22
includes 63:13
inserted 20:19
inclusive 63:11
instance 96:7
independent 7:15
9:22 10:6 13:19
14:3,9 17:15,16,20
18:9,11,19 19:9
20:4,9,20 21:12
22:2 24:14 25:7
28:19 37:16 39:5
54:10 63:18 64:18
instead 82:21 95:22
(866) 448 - DEPO

institutional 43:8
60:5 72:8
instruction 10:3
interest 56:18
63:3,5,16 64:1,17
Document: 01019354934
Page: 143

Page 12
73:8,9 76:5,6
77:19,21 78:13,18
79:16 83:21
85:13,17 87:21
88:18 89:16 90:3
92:2,8
interested 9:7 88:2
110:7
interesting 98:18
interests 70:11
85:20
internet 15:22
interpret 38:4 52:6
79:20
interpretation 11:13
29:4 35:13 41:13
42:2,6,16 52:5
interpretations
12:18 42:9
interpreted 48:3
interpretive 12:19
29:5 76:18
in-time 73:1
introductory 96:13
investigation 91:3
investigative 25:2
90:16
involved 17:5
involvement 17:17
involves 17:21
Iowa 56:6
isn't 25:7 30:13
41:17 43:22 44:11
56:18 60:10 71:14
75:18 90:3 92:16
106:3,8
issue 5:20 27:18
50:8 52:16,19
65:14 77:21 78:22

79:4 87:13,14
97:15
issues 30:9 48:21
60:21 97:11
I've 32:6 67:2

J
Japan 39:11
Jefferson 81:17
item 96:16 97:2
John 99:17
iterations 66:2
journalism 43:11
it's 5:14 7:5 9:3 12:3

13:20 14:2 15:1
16:14,15 21:18
22:20 23:5 25:3
26:2,4,16,17,19
27:18,20,21
28:8,22 29:7,14,22
30:3,5,7,14 32:17
33:15 36:8,9,11,16
39:1,6 42:9
43:6,13,15
44:10,11,22
45:1,7,10
46:13,14,15 48:2
50:16 53:11
54:5,17,18 57:22
59:12 60:1,3,10,15
61:15,16 62:20
63:9,10,12,16
64:7,11 67:16
68:20 70:20,22
72:4,5,7,10,11,19
74:6 75:3,7,14
76:8 77:14,17,22
79:2,7 80:9,13
81:17 82:10 83:13
84:13,21 85:6
86:13 89:3 91:10
93:4,11 94:7,13
95:1,18
96:16,20,21 97:11
98:7 99:13
102:20,22
103:8,19,22 104:2
105:1,13 106:20
108:16,21 109:6
judge 4:2,19,21
5:5,17,22 6:6,18
7:1,8,12,22 8:9,19
9:1,6,9,21 10:16
11:14 12:6,9,12,21
13:13,18,22 14:7
15:4,10,15 17:9,14
18:8,14,18 19:2,11
20:12,17 21:3,6,17
22:8,11,20 23:7,15
24:5 25:5,12,17,20
26:9,13,19 27:7
28:8,18
29:13,18,20
30:4,13,22
31:11,13,19,22
32:8 33:10,21
34:7,13,19 35:9,21
36:11,14,19
37:3,13,20
38:5,6,7,8
41:12,21 42:15
43:1,22 44:9 45:11
46:17 47:3,6 48:19
49:4 50:13
51:2,8,22 52:2,3
53:15,17 54:17
56:13 57:7 59:15
62:2,17 63:8 64:15
67:1,14 68:9,21
69:2,7 71:9 72:17
73:16 74:5,15
75:8,15
76:8,11,14,22 78:6
79:3 80:9 82:4,22
83:8,22 84:16
(866) 448 - DEPO

86:1,16 87:3,8,18
88:14 89:6,17 90:8
91:15,22 92:1,22
93:3,8 94:8 95:15
96:11,12 97:17
98:1,20,22
99:10,22
100:4,13,16,17
101:6,9,16,19
102:2,7 103:10,13
105:8 106:3
108:8,14 109:4,6
judged 106:1
judgment 96:22
jurisprudence 53:7
justification
54:11,13 70:6
103:19
justify 77:4 89:18
K
Kennedy 91:3
kick 37:22
Kindle 40:9
kinds 51:11
Klan 75:16
Klux 75:16
knew 95:10
knife's 11:2
Koch 93:18 94:16
Ku 75:16
L
label 23:9 61:13
labor 80:18
lack 64:17 92:19
Ladue 53:4 63:6
language 6:7 43:5
Document: 01019354934
Page: 144

Page 13
47:10 49:6,7 50:6
101:12
large 65:1 70:14
82:9 83:14
largely 73:18 94:17
last 32:21 57:7 71:16
76:16 93:22
liberal 44:11
Libertarians 27:17
licensed 32:13
light 65:2 70:14
lightly 106:19
likely 20:10 97:12
later 7:14 22:10

64:20 65:12 85:15
likewise 33:22
latitude 76:18
limit 13:5 14:1
law 7:11 12:17 16:8

43:1 56:14 68:9,12
69:12 71:2 77:5
91:5
limitation 6:19
leads 41:1
limits 65:13 69:15

70:7
learn 73:5 94:12,17

99:17,18,22
Limbaugh 73:14
limitations 6:8
limited 14:2 29:6
learned 93:12 104:5
line 11:9 13:17 24:3

30:10 31:8 32:15
45:22 57:8 100:19
learning 93:1,4,6,8
104:1
lines 27:4,5 44:14

100:9
least 55:15 65:6

80:1,15 82:16
link 33:12,16
leave 24:4
leaves 11:22
legislation 50:9 57:1
legislature 55:19
57:4,5,9
listeners 73:22
litigation 41:2
49:11,12 52:14
little 61:21 72:10
88:6
live 56:6
length 106:1,13,21
loan 13:2
less 29:7 45:16 58:14

65:18 69:19 70:17
94:14
Lobbyists 45:14
lesser 62:5
long 19:5 23:5 27:2

67:5 102:2
105:1,21 106:2
let's 21:17,18 69:4

75:8 93:14 98:3
letter 74:8,12,20
letters 26:15
level 34:17
local 59:1,2,5
longer 102:5
loophole 37:15,18
lot 9:9,13,16 24:2
30:15 80:4 81:13

82:2,4 84:19 96:5
104:5
maybe 14:16 19:17

23:17 30:14 42:5
51:21 71:17 77:5
lots 22:21 96:3
McCutcheon 10:12
64:20 70:9
M
Maddow 73:14
MCFL 86:2,6,7,8
magazine
21:7,10,13,15
22:1,6 23:8 91:2
magic 99:20
mail 92:17
mailbox 23:22
mailed 5:9
mean 7:20 12:7

14:2,3 18:17 20:15
23:18 27:21 29:22
32:5,21 59:10 65:5
75:1 79:6 80:10
84:1,3 89:12 90:11
93:4 98:14 105:20
meaning 4:13 6:8
51:13,19
Maine 28:13
means 6:20 41:4

42:17 61:15 71:22
mainly 21:15
meant 65:9
major 85:5 94:15
measures 107:22
manner 27:20 57:20
media 6:14 14:3,5

24:6,12 28:22 29:7
31:14 34:10 39:12
40:4 44:15 46:10
47:2 49:21 79:5
92:10 102:13
103:6,7,9
mailer 23:21
margins 78:16
marketing 17:4
mass 6:14 14:2,5
28:22 29:7 40:4
matter 1:12 8:21
27:13 36:16 54:21
70:3 71:4 91:11
108:1
matters 26:1 74:22
82:11
medicine 39:11
medium 24:6 26:1
28:2 33:22 43:20
57:20 103:18
108:19
Matthew 2:3 3:2 5:3
meet 109:2
may 19:19 26:7

33:12 38:12 42:4,6
43:7 53:8 56:6
59:2 60:7 64:22
67:2 68:2 69:1,8
80:5 102:13
105:16 106:17
107:9
meets 7:19
(866) 448 - DEPO

mentioned 94:11
mentions 39:9 48:15
merely 35:16
merits 4:15
message 13:6 14:1
Document: 01019354934
Page: 145

Page 14
55:3,8 74:2
month 16:19 58:14
neither 71:2 110:6
Mexican 81:17
Moore 59:20 60:7
Netflix 35:11
Non-expressed
100:4
Mexico 59:10
motive 54:12 61:8

103:3
neutral 44:11
53:9,10 60:2 71:10
nonprofit 58:17
86:2 95:8
Mountain 11:15
12:8 19:21 20:2,14
81:4
nontraditional
71:12
mind 55:16
movie 9:5,19 17:19

32:10 33:5,11,12
76:20 96:15,20
103:22
news 19:12,21
20:2,14 26:14
28:16 31:4,15
33:22 34:5,14
71:18,22 72:3,18
73:13 75:21
88:3,18 89:21,22
90:4 96:16,19,22
97:1,2,6
minimum 82:15
movie-maker 45:7
newscast 90:1
nothing 59:15 70:2
Minneapolis 50:19
movie-making
35:10
newspaper 5:8
19:15 20:18,19
21:9,22 22:13,21
23:9,20 26:16,20
28:10 31:1
32:11,16 43:10
44:5 61:19,22
74:13 75:2
78:7,17,18 79:1,22
81:16,18,21 87:20
104:1 108:2,3,4
notice 42:10
MGM 35:11
Michael 59:20 60:7
93:17 94:2
middle 24:2
million 81:5 88:3
90:15
millions 73:1 78:9
Minnesota 50:19
minute 58:18
108:9,14
minutes 69:3,4
89:8,10,11
101:20,21 102:1
108:11
missing 94:19,20
move 24:11 99:15
movies 40:17 44:20

60:21 75:10 105:2
106:5
MSNBC 60:11
73:13
municipal 7:7
muster 107:12
mode 72:6
model 21:8 89:4
modern 27:5
moment 29:2
money 10:19
11:6,15 12:1,4
13:3,6,11 17:6
18:6,19 21:19
24:21 25:1 33:5
35:5 37:8,11
39:10,19 78:10
80:16,18,19
81:3,20 83:3 89:2
91:8 92:7 94:15
98:7 102:11 107:2
moneyed 85:20
N
NAACP 95:9
narrow 69:19 77:16
narrowing 35:22
36:1
narrowly 63:4
National 39:8 60:11
nationality 46:1
nationals 45:13
newspapers 21:21
25:3 39:14 55:5
57:12 63:11 90:9
108:7
nor 71:3,4 110:6,7

normal 16:15 34:5
91:7 92:10
normally 20:22
25:3,4 91:1
92:16,20 94:8
notwithstanding
50:5
NPR 90:10,12,15
106:16
NRA 94:1
NW 2:7
O
obligation 19:10
37:5,7,10 64:10
obligations 99:2,6
obstacles 79:17
newsworthy 33:11
96:16
obvious 79:17
night 71:16
October 1:10
nightly 90:1
offer 54:3
nine 60:17,22
offers 54:3
non 62:10
obviously 31:10
necessarily 76:10
non-broadcast 44:3
71:11
office 11:16,17
12:5,15 15:21 24:2
56:4
negative 19:16,17
43:13 60:14 107:6
none 66:9 97:3
officials 85:19
non-existence 83:18
Oh 76:8 81:10
nature 22:6 106:22
neighborhood 52:22
(866) 448 - DEPO

okay 4:19 5:22
Document: 01019354934
Page: 146

Page 15
6:6,18 7:1,12 8:19
9:21 12:6,11,21
13:22 15:10,15
17:14 18:14 19:11
20:12,17 22:11
23:7 25:12,17 27:7
31:11 37:20 38:5,8
60:3 62:17 69:7
75:8 89:9 96:11
101:16 102:7
108:4
75:5 85:11
pages 96:1
opinions 26:14
106:14
paid 20:19 21:2,9

22:19
opponents 62:20
paper 12:5 20:5

21:16 26:4
92:17,21
opposed 7:15 33:6

100:21
oral 10:13,16 39:7
Parade
21:6,10,13,14
22:1,6
order 74:1 78:20
Pardon 47:5 103:12
Olson 2:6 3:4,7

38:11,12,13
41:12,15 42:8,18
44:8,12 45:19
46:21 47:5,19
49:1,12 50:16
51:5,10 52:12
53:21 55:14 56:20
57:15 60:1
62:12,19 63:10
65:8 67:7,16 68:14
69:1 101:19,22
102:4,8 103:12,15
105:19 106:10
108:12,15 109:5
organization
22:13,16 23:2,4
74:7 84:18
88:19,22 95:12
parse 88:19
Olson's 77:15
outside 33:3 78:10

92:11,13
ones 55:7 87:11

one-time 80:13
84:22
option 69:19
participate 56:10
57:6,9 58:12,18
61:4 63:13,19 64:2
75:10,22 78:18,20
79:20 81:7 84:20
85:4 93:5,10
96:5,17 104:14,19
105:15
percent 68:3 88:7,8
93:8
perfect 77:9
80:6,7,10
perfectly 72:14
78:8,12
particular 14:17
24:22 44:15 55:8
56:1,2,5 58:8
72:20 84:20 88:5
94:4 103:7
perhaps 22:3
permissible 84:1
otherwise 5:10 6:7
particularly 27:4
83:14
ourselves 48:9
parties 1:19
permit 101:13
outcome 110:7
party 10:5 27:17

52:14 69:10 70:2
110:6
permitted 41:1 43:4
organizations
39:12,13 89:9
oriented 34:16
originally 20:6
outlets 31:16
outsiders 55:3
overhead 11:16
period 20:16 102:18

periodical 23:21
78:7 90:9
permission 11:18
pass 56:14 57:1

73:17 107:11
person 13:3 20:9

22:14 52:21 53:1
56:6 61:21 74:20
81:8 104:11
passed 54:20
personal 5:9
pause 51:9
persons 7:3 48:15
pay 11:16 21:21
perspective 95:4
online 25:18
26:5,10,17,20,21
over-inclusive
63:5,12
overturned 5:18
paying 90:4
persuade 61:4
op 22:18
owe 4:2
payment 7:18,20
8:11 13:2
persuasive 43:14
op-ed
22:12,13,14,17
74:6,21 75:1
payments 7:17
Philadelphia 81:18
pending 5:21
Phillips 1:14 38:7

52:2 53:15,17
54:17 56:13 57:7
59:15 92:11 95:15
96:11
ownership 59:5
Oxford 40:12,13
open 84:8
openly 48:14
operate 25:3
opinion 23:1 31:15
P
page 3:2 4:7 24:1
75:1,3 78:21
85:11,15 102:21
penny 95:11
people 28:4 29:21
33:13 39:20 44:20
45:22 51:18
54:21,22 55:4,12
(866) 448 - DEPO

pertain 85:12
Document: 01019354934
Page: 147

Page 16
philosophy 79:11
pointed 66:18 70:10
physical 26:4 28:2
points 102:5
pick 34:12 62:8
policy 30:21 34:15

73:21 78:2
predated 65:3
political 18:20
19:4,9 22:12 26:7
27:22 28:15 30:11
44:16 55:3 60:21
69:22 71:20 74:3
85:16 98:8 106:15
premise 62:18
problematic 47:10
70:4
prepared 110:4
problems 67:20 97:3
present 1:18 61:10

65:21 69:21
procedure 4:3 42:11
politician 30:7
preserved 47:18,20
politicians 29:22
104:13
politics 45:9 46:13
48:15 53:6 58:19
66:7,8 76:4
press 35:12 40:13

46:18 51:4 57:11
68:10,13 72:8
76:21 77:3 81:15
91:7
pool 37:7
presumably 52:8
portion 32:3,19 39:5

96:13
presumed 60:10
pictures 96:3
piece 24:22 74:21
82:12 83:19
91:9,10 93:16 94:5
pieces 68:2 94:19
placed 22:19 24:13
83:3
places 59:7
placing 99:10
plain 50:5
plaintiff 69:20 71:4
Plaintiff-Appellant
1:3 2:5
planning 10:20
plans 88:16
precise 5:20 11:2,14

72:1
preface 29:4
presently 6:3
problem 30:14
42:15,19 44:8 46:9
48:4 51:14 63:9
67:5 88:11
proceed 38:11
proceedings 59:19
produce 10:19 98:12
produced 84:19
91:17
producing 88:17
product 9:3,8
presumptively 51:1
62:15 103:20
production 8:15
15:8 16:4 18:7,8
31:6 39:17 88:20
93:9 99:3
pretty 96:10
profit 95:7
prevent 54:6 71:3
profits 85:18
project 50:20 100:22
101:2
platform 32:1,2
34:14 96:14
position 14:6 17:18

38:2 53:17 95:17
96:6 98:8
play 29:8 71:19 76:7
possible 70:1
player 31:7 94:11
previous 79:11
post 20:2,7,8,22
21:5,19
24:7,9,17,20 25:18
26:5 31:5
32:1,6,7,9,16,20
33:4,11,14 59:1
60:9,10 66:18,20
79:9 91:16,17,20
92:4,9,18 93:4,14
96:1,14 97:2,8,10
104:3 106:16
primarily 17:1
33:22
printed 5:8 20:18

26:11,16,21 28:1
proper 84:3
posted 32:9
printing 30:21 97:7
proposition 57:3
postured 49:10
prints 97:1
prospective 83:16
potential 73:5
pro 88:4 98:3
protect 61:17
powerful 61:22
probably 30:15,22
33:19 36:9 81:1
protected 41:8
playing 71:21
plays 72:22
please 11:7 38:13
55:9 69:8
plenty 103:17
plurality 70:16
pocket 85:19
point 10:14 15:14
27:14 43:19 44:22
49:15,16 68:19
72:7 73:19
74:12,17,18 75:3
81:6 83:18 85:7
87:4
practical 79:17
promise 9:15,16
primary 46:19
promised 9:10
principle 57:16
promote 16:6
principles 68:19
promoting 15:2,17
27:15,16 55:11
print 28:3 44:20

79:5
(866) 448 - DEPO

prop 72:20
proposing 91:21
protection 86:4
Document: 01019354934
Page: 148

Page 17
protects 59:12
85:4
provide 33:12 41:13
purposes 8:1 42:5
ran 20:3,5
recall 49:14 93:22

103:15
provided 42:2 78:19

80:18,19
pursue 48:21
rascals 104:14
recalls 94:4
puts 104:10
received 34:21
provides 79:22
putting 35:5 84:14

106:19,20
rather 79:6 83:14

97:19
rationale 75:20
103:8
recess 109:13
provision 6:13 42:10

107:14
Q
qualifies 13:14
rationalization
66:20
recognized 45:12
provisions 38:18
50:2
qualify 28:6
rationalizations
66:19
public 15:1,13 26:19

39:8 60:11 73:4
78:10 85:13
87:18,20 88:2,9
question 6:1 16:12

26:8 27:8 33:16
41:17 52:1,13
53:16 57:8 59:3
64:10,15 77:22
78:1 87:10 89:14
91:16 95:3,16
100:9 102:19
providing 33:16
70:12
publication 23:8
publicity 65:3
publicize 99:11
publicized 94:1
publish 29:14 34:21
published 16:14
40:9,12
publisher 21:22
29:10 34:20 40:14
61:20 79:9 99:1,5
100:18 101:11
quantities 70:18
questions 4:11,17
7:13 12:10 31:12
38:6 73:12 78:16
82:3 87:12 101:18
quite 21:7 34:12
37:18 48:12
quoted 64:16
quoting 65:3
publishers 50:4
publishes 22:14
publishing 29:11
40:15 92:12
puff 24:22 91:10
pull 10:11
purchase 13:2
purchased 79:9
purely 98:7
purpose 10:6
13:4,16 61:16 77:3
R
Rachel 73:14
raising 11:5 92:7
reach 96:5 97:12

reader 75:4 82:18
readers 73:22 78:4
Reader's
90:19,21,22 92:12
readership 92:20
readily 80:6
reading 4:4 79:20
realize 66:14
really 9:4 35:10
37:13 44:3 52:4
55:10 66:12 71:9
73:8 77:21,22 79:5
80:21 87:14
89:4,17 90:1 91:6
105:3
reason 53:22 59:11
70:20 77:2,8,11
81:15 85:6 99:3
101:9,10 103:7
recent 70:9
recipient 10:4
record 4:22 16:2
75:19 76:1 79:14
82:7 85:2,3,9
104:22
105:1,10,11,14,17,
20,21,22
106:2,13,21
records 51:17 64:11
red 92:15
redraw 44:14
Reed 70:3
refer 7:2 36:1
reference 5:16
referendum 55:20
referred 34:22
refers 5:10,11 7:2
32:10 43:6
regarding 4:7 7:3
23:16 64:16 76:4
raise 25:1 66:16

92:15 97:3
reasonable 106:8
regime 46:9 49:18

50:14 53:13 54:6
57:3 58:9 64:13
68:17 97:4 102:20
104:18 107:10,17
reasoning 92:3
regimes 58:2,5
raised 27:1 33:5

35:4 70:12 87:12
91:8 93:10
reasons 62:21 107:7
regs 18:18
reassure 82:19
regular 19:13
29:9,10 40:9,14,16
43:10 45:7
radio 5:7 24:8 39:8

60:11
raises 91:15
rebuttal 3:6,7 49:3

69:3
(866) 448 - DEPO

Document: 01019354934
Page: 149

Page 18
60:19,20 61:2 99:7
63:1,2,4 77:10,14
82:16 103:11,14
reports 16:11
return 67:1
regularly 27:10
representatives 57:1
review 45:17 62:5
regulated 106:1
represents 70:17
regulating 41:16
107:3
Republican 44:10
risk 30:15 33:13

65:21
second 41:22 82:10

86:11
Republicans 27:16
risks 41:4
regulation 5:17
6:5,19,22 37:1
39:2,6 59:17,21
77:18 79:15
require 5:12 13:11

47:14 88:19
risky 107:18
required 19:4 35:19

36:18 86:6 95:5
Rocky 11:15 12:8

19:21 20:2,13 81:4
secretary 2:2 3:3

4:10 5:4 12:15
40:21 41:14 42:2,6
47:4,7,21 48:4
101:14
requirement 5:15,16
6:4 8:2 17:12
37:22 77:16
84:7,8,11 99:9
role 92:10,11,13
secretary's 11:12
35:13 37:1 76:18
rule 8:5 13:21
secretly 81:18
rulemaking 42:10
section 10:1
rules 42:1 59:11

72:22
seeking 46:19 47:16
run 30:8 67:20

96:19
seemed 4:5
released 15:12
76:3,4,13,14
requirements 7:19
14:11 17:10
18:16,21 23:11
57:11 67:6,8,9,10
68:5,6,7,11,12,16
77:12,14
relied 70:5
requires 80:15
relief 47:16 49:10
requiring
67:11,12,20
regulations 23:15
42:12 78:2 90:20
107:15
regulator 40:19
106:9
regulatory 49:17
107:10
relate 50:2
relieve 36:3
reluctant 49:4
rely 83:17 105:4
remains 69:18
remedies 48:1
reserve 49:2
robust 59:13
running 4:16 31:6

runs 19:15 20:7,22
21:1 23:2 24:8
30:19 72:2 74:6
run-ups 39:15
Rush 73:14
residences 5:9
resounding 86:15
resources 88:4
S
Samson 87:14
seem 47:12 78:12

seems 67:10 98:1
105:9
seen 32:6
segments 72:3
selected 49:21
self-publication
40:8
sells 21:18
semi-balanced
61:11
respect 32:1 50:18

51:12,16 54:1,11
59:3 60:18 64:18
satisfactory 84:4
respective 1:19
repeatedly 41:6
saves 84:12
separate 17:22
46:15 69:21
responses 36:20
report 17:1 22:2

25:2 36:18 67:5
90:16 91:18
scale 106:19,20
separating 50:1
responsible 19:3
scenes 98:16
serious 67:5
restriction 94:9
schedule 16:14,16
Seventh 2:4
reporter 88:20
restrictions 14:8
69:14
schemes 53:18
severability 50:8
scope 19:14
several 88:3
scrutiny 45:17
62:3,5,6,16,20
shaking 21:15
remedy 46:19
repeat 15:4 34:11
43:9 94:11
reporting 18:16
19:19 27:3 83:1
84:2,3 106:14
restrictive 70:17
reticulated 42:12
satisfied 83:21 99:7

satisfy 82:16
(866) 448 - DEPO

sense 67:3 75:21

80:11 90:4,11
Document: 01019354934
Page: 150

Page 19
sham 79:7
Shareholders 85:15
she'll 81:11
Sherman 2:4
shining 70:14
short 68:2 106:2
109:7
shot 84:21
83:13 93:18 94:18

104:4
someone 8:10 22:11
39:10 61:12 67:21
80:20 105:10,11
speaks 55:8
sorry 6:12 9:1 13:18

15:4 100:14
specifically 8:6
11:9,10 35:5 46:5
49:16 91:8 92:7
significant 68:3
similar 26:22 35:7
47:11
sorts 16:16 78:3

84:15
similarly 96:22
sound 89:12
simply 17:3 47:16
sounds 81:14
single 17:7 57:2

77:12 84:21 95:11
source 73:6 94:15
showing 20:2
shown 66:9 108:10
sides 109:9
sign 52:22 53:5
site 96:15,19
situation 9:15 35:7
six 96:1
skip 90:5
slightly 14:13 29:3
small 82:9 86:10
87:11
so-called 63:14
85:19
Socialist 70:2
solely 24:1
solicitation 93:15
solicited 35:5
somebody 19:18,22
23:2 61:9 74:6
speaking 59:16 61:8

64:4 71:3 85:13
somewhat 18:12
29:6
sort 19:9 22:2 23:3

28:2,8 30:10
33:2,7 35:6,15
36:21 59:10 68:1
72:5 76:5 78:19
83:1,4 84:7 88:12
90:17 91:12 92:18
94:6 95:14
showed 96:14
49:18,19 50:17,21
51:16 53:8 54:2
57:18 61:9,11 62:8
sources 22:16
Southern 90:21
space 96:9
specific 25:6 101:5
speech 41:16
43:13,18 44:16
55:11 57:20,21
58:10 59:13 60:13
61:6,7 67:12,18
68:4 69:22 70:19
71:1 85:17 94:9
105:22 107:3
spend 13:11 15:7,17
18:6 28:4 88:16
89:1,2
spending 17:5 70:7
97:14
spent 13:6 16:5
17:3,7 18:19 37:11
91:8
speak 43:4 46:11,12

53:12 63:19 68:20
86:9 104:11 105:5
107:19
spoken 52:4
speaker 41:19
43:7,8,10,19,20
45:6 53:10
56:1,2,9 58:16
60:4,5 67:17
71:7,11,12 107:8,9
108:2
standard 45:17
62:5,6,12 63:1
speaker-based
45:12,15
speakers 44:2,3
stage 16:13
stand 50:11
standing 48:4,8,10
52:13,15,16,18
Star 50:19
start 4:4,14 14:15
50:20 78:7,16
99:15
starting 4:7
(866) 448 - DEPO

startup 61:21
start-up 78:7 90:9
state 2:2 3:3 4:10 5:4
7:6 12:16,18 28:13
40:21 41:14
42:6,16 43:2
47:4,7,21 48:5
54:3,15,18 55:4,19
56:3 60:2 62:7
64:1,6 66:9 73:7
statements 40:20
107:15
state's 12:15 43:6,14
44:21 60:18 61:1
66:7
States 1:1,15 66:17
station 59:1,2
stations 55:5 59:5
72:9
statue 49:8
stature 72:21
statute 4:8,14 6:10
24:12 25:21 33:14
36:22 38:17
40:5,18 41:4
42:4,17 46:9
47:10,11,13,15
48:2,10 49:5 50:6
51:3,4,7,15 52:4,7
54:13 57:17 58:11
59:17 64:12 73:17
79:15 80:15 87:13
91:19 98:11
101:12 102:19
104:9 105:7
107:14 108:16
109:2
statutes 4:5 104:7
statutory 37:22
53:13 64:13
Document: 01019354934
Page: 151

Page 20
104:18
step 30:10 67:12
92:10,13
Sunday 24:9
104:12,15,18,20
109:1
74:2,17 75:2,5,6
79:3 83:6,11,16,17
84:18,22 85:20,21
89:3 90:17 91:12
92:8,18 93:20
96:8,9 97:15,21
98:10,13,18
100:2,6 101:15
107:16,20 108:5
stick 69:4
support 5:13 19:17

22:17 39:15 57:2
83:3 94:10
sticking 31:7
supported 25:7 33:6
stops 59:16
supporters 85:6
story 19:16,17 42:13

Stout 1:17
supporting 7:9
11:9,11 19:18,22
21:11
Street 1:17 2:4
supports 90:13
strict 45:17
62:3,5,15,20 63:3
103:11,14
tape 31:7
suppose 7:7 11:3

16:11 72:6
taped 23:22
Theodore 2:6 3:4

38:13
technology 44:15
theory 50:15
Ted 91:3
television 5:7 59:1,2
therefore 24:14
105:17
Tenth 1:1,16
there'll 4:9 15:21
term 7:2 10:8
there's 9:12,21 13:9

15:12,13 23:3 27:2
28:11 33:13 35:10
36:17 37:4,6 43:14
44:9,22 46:8 50:11
55:14 59:15 62:3
63:22 64:10 66:8,9
73:4 77:16,22
79:16 80:10 85:6
94:14,17 98:6,14
99:3 103:5 105:12
striking 70:7
struck 69:14
stuff 84:19
subject 18:21 20:16
33:7 45:20 59:21
109:1
subjected 46:18
subjects 106:15
submit 45:19 50:10
submits 22:12
subscribed 78:18
subset 36:11
substantial 59:9
73:9 77:17 80:8
85:9 88:21
sufficient 10:22
82:15
Supreme 6:1 41:6

44:13,17 46:3
52:3,16 53:4,6
54:9 56:9 58:6
62:13 66:21 67:13
69:13 70:5 72:12
82:11,14 85:10,21
95:5 109:3
sure 4:6 9:17 14:7
15:22 25:9,13 26:9
31:3 37:17,18,21
39:22 52:2 76:17
78:22 82:18 87:9
93:2 95:10,16 96:8
98:17 99:20
surprised 88:7
survive 50:14
suspicious 67:22
sufficiently 56:17
77:18,20
T
tailored 63:4 78:13
79:16
suggest 65:4
tailoring 77:16
suggestion 82:8
taking 41:4 102:8
suit 42:22
talk 14:16 27:7

39:19 45:8 63:7
68:2
suits 40:22
talking 13:18 16:12

41:10,16 45:3
46:13,14 63:17
65:11 82:22
83:4,7,8,10 90:2
104:8
talks 10:13 28:14
48:14 60:3 103:4
termed 74:3
terms 13:8,9 57:17
60:3
test 77:10,16
testified 39:21
tests 71:18 109:2
thank 4:18 38:7,8,12
39:9 68:22 101:18
109:4,5,11
that's 5:14,22 6:7
7:5 10:10 11:12
13:9,16 14:6
16:1,12 19:1
20:10,15
23:6,16,17 25:2,19
26:11,22 27:17
28:21 29:1 32:8
33:7,8,18 37:2
38:3 44:16 45:3
46:22 56:7,14
57:21 61:6 64:5,9
70:1 72:16 73:18
(866) 448 - DEPO

themselves 17:13
55:12 82:14
they'll 15:19,20 16:1

71:19
they're 15:7,16 25:9
31:19 32:13 53:8,9
55:5 61:18 65:11
80:14,16
81:1,2,10,14
88:6,7 91:6 92:6
105:12
they've 15:18 76:3
79:13
third 10:5
Document: 01019354934
Page: 152

Page 21
Thomas 81:17
thoroughbred 64:9
thoroughly 25:16
thousand 10:7
threshold 33:17
87:1,6 97:14
treasury 11:8,12
18:4 37:8 83:15
treat 34:13 76:11
99:3
treated 99:1
treating 101:10
49:20 72:10 86:18

90:13,14 92:14
93:20 103:9
types 45:14 54:1
70:18 88:18 89:19
103:6
thresholds 87:15
treats 71:10
threw 95:17
trial 40:10
U
U.S 1:16
throughout 43:6
tried 95:14 100:15
ultimately 12:18
throw 104:14
true 98:10,13
thumb 106:19
truth 71:18 100:1
unacceptable
108:21
TIMOTHY 1:13
try 69:4 72:19

109:13
today 4:4 39:17

40:20 42:19 47:22
51:12,21 56:3
57:17 58:12
102:15 104:1,6
106:22 107:5
tomorrow 42:21
trying 4:5 58:15

75:20
Tuesday 1:10
unconstitutional
47:13,15 49:5,9
51:1,3 53:1 55:18
56:15 57:4,22
62:15 64:14
103:20 108:20
Turner 103:4,10,13
tough 109:6
twin 70:11
towards 9:18 33:8

84:13 87:22 99:15
Tymkovich 1:14
29:18 31:13,19,22
32:8 33:10,21
34:7,13,19 35:9,21
36:11,14,19
37:3,13,20 38:5
41:12,21 42:15
43:22 44:9 45:11
46:17 50:13
62:2,17 63:8 71:9
72:17 73:16 78:6
79:3 80:3 86:1,16
87:18 88:14
89:6,17 90:8 96:12
97:17 98:1,20
99:22 100:4,16
103:10,13
transaction 85:12
TRANSCRIBER
110:1
transcript 38:14
96:2 97:1,7 110:4
transmission 10:4
unclear 39:6
unconnected 66:5
TV 15:21 24:8
31:2,4 55:5 99:10
traditional 43:7
60:4 71:12 103:3
105:7
unambiguously
5:10,11 32:10
T-shirts 8:17
totally 66:5
track 75:19,22 79:14

85:2,3,9 89:7
104:22
105:1,10,11,13,16,
20,21 106:1,13,21
unambiguous 5:15
uncoordinated
65:19
under-inclusive
63:6,9
uninhibited 59:13
union 80:19
United 1:1,2,15 3:4
4:14 5:1 6:16 8:17
11:5 12:4 15:6
19:3 20:18 21:1,5
23:9,10 38:14 39:4
40:16 44:4,12 46:5
47:1 48:3,12,14
50:2,3 57:13
58:2,5,17 59:22
60:8 61:14
64:16,20 65:4,5,9
66:17 67:4,17
68:10 72:13
75:9,11 76:1,2,12
79:13 82:12 83:2
84:8 85:8 86:3,13
88:13,16 90:7
91:21 94:17,21
95:12,17 96:6 98:5
99:1 104:22
106:6,14
United's 9:5 18:4
60:20
University 40:12,13
unless 28:2 39:3
90:5 97:7 103:18
unusual 4:3
understand 18:18
20:21 26:10 27:4
37:19 38:20
56:13,14 68:21
75:20 87:7,9 95:16
updated 27:10,21
understanding
21:14 36:6 48:22
87:19
upon 40:7 41:18

42:14 46:11 49:19
52:13 53:8 56:8
57:19 60:13 62:14
66:21 102:11,15
103:9,22 105:19
107:4 108:17
unequally 64:12
uneven 62:22
unfit 99:17
type 7:17 33:3 45:6
(866) 448 - DEPO

upheld 45:16 46:3

53:12 54:2
uphold 58:4
Document: 01019354934
Page: 153

Page 22
urge 39:20
VMI 66:17
urgent 41:9 68:20

urges 43:16
voice 55:8
56:19,20,21 61:22
useful 4:6 105:17
voluntarily 67:21
vote 55:1 99:19
V
vacuum 70:4
voted 57:6
vagaries 40:18
voters 50:9 54:16,18

55:17,19,22
56:3,14,15 59:4
73:21 76:7 80:1
91:13 94:22 95:1
vague 38:18 58:11

64:2 104:8
vagueness 41:1 42:3
valuable 88:9
94:14,22 95:3
voter 61:5 83:16
we'll 4:11,14 69:2

86:11 101:20,21
109:13
we're 4:3,6 11:5
16:12 21:20 24:21
25:14 39:17 41:16
42:8,18 45:3 46:1
48:20,21 49:4 51:5
58:11,15 89:1
95:19,22 96:2
97:15 106:18
we've 73:13 74:3
77:9 104:18 107:5
109:8
90:4 94:21
whose 64:3
widow 87:4
willing 67:4 72:14
window 53:6
wish 19:19 104:19
wished 17:7
wishes 104:11
witness 39:21 40:11
woman 53:5
work 69:12 81:5
W
walks 105:5
whatever 21:12 55:2

58:19 62:6
workable 107:17
wary 24:18
whatsoever 55:17
works 21:8
Washington 2:8
24:7,9,17,20
WHEREUPON
109:15
world 84:9
veering 33:8
wasn't 39:22 65:13

82:20
vendor 22:19
waste 48:21
versus 11:11 28:16

44:3,10 62:10,11
71:12,13 72:9
watch 33:13 71:18

90:5 96:20
whether 16:21 23:8

26:4 27:13
39:6,7,22 40:6,20
43:3 48:9,10 50:8
51:17 56:21
58:16,21
61:10,17,18
72:11,15 79:7
81:16 83:20
85:16,18 89:15
91:10 102:19
103:22 104:13,21
106:12
value 73:2 86:17

97:18,19 98:9
108:22
variety 22:22
various 62:21 66:2
video 32:9 96:3

videos 32:7
view 6:11,16 9:2
15:14 27:14 28:3
34:4 43:19 44:22
74:13,18 81:6
viewer 82:18
viewers 73:20,22
viewpoint 27:18
44:6 71:6 91:11
watched 32:19
watching 48:18
ways 77:8 80:22
106:17
weak 54:15
website 32:21 33:12
34:1,4,10,16
97:1,10
we'd 47:21 48:8
White 1:16
whoever 27:17
67:17 83:2 87:5
Virginia 11:17
66:17 67:3 83:1
weeks 58:20
whole 6:12 27:14

56:17 69:13
100:22 108:16
weighed 56:16
whoops 12:10
virtually 49:6
weight 64:8 66:21

75:6
who's 30:8 59:13

74:19 80:20 81:16
week 32:21
(866) 448 - DEPO

Workers 70:2
worry 48:7,19
worth 88:4 95:19
worthless 79:12
wound 51:15
wrap 108:12
write 29:22
Writers 50:20
writes 22:13
writing 30:8 32:3
40:1
writings 26:3,15
written 10:13,17
34:1,2 50:10 93:5
wrote 22:14 74:20
Y
yet 78:11 79:12
York 23:20 59:7,8
90:22 106:16
Document: 01019354934

Page 23
108:5
you'll 29:18 108:8
yourself 4:22
you've 10:8 17:19
47:6 49:10 62:9
71:17 74:7,17 93:6
108:10
Z
zoo 46:14
(866) 448 - DEPO

Page: 154
Document: 01019354934
Page: 155
CERTIFICATE OF SERVICE
I hereby certify that a copy of this CITIZENS UNITEDS OPPOSITION
TO SECRETARYS PETITION FOR REHEARING AND FOR
REHEARING EN BANC, along with the accompanying exhibit, was served on
the following persons via CM/ECF on December 11, 2014:
Daniel D. Domenico
Matthew D. Grove
LeeAnn Morrill
Kathryn Starnella
Colorado Attorney Generals Office
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 6th Floor
Denver, Colorado 80203
dan.domenico@state.co.us
matt.grove@state.co.us
leeann.morrill@state.co.us
kathryn.starnella@state.co.us
Martha M. Tierney
Edward T. Ramey
Heizer Paul, LLP
2401 15th Street, Suite 300
Denver, Colorado 80202
mtierney@hpfirm.com
eramey@hpfirm.com
Attorneys for Intervenor-DefendantAppellees
Attorneys for Defendant-Appellees
Us/ Theodore B. Olson

THEODORE B. OLSON

Citizens United's Opposition To Secretary's Petition For Rehearing en Banc

Hochgeladen von

Dokumentinformationen

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Citizens United's Opposition To Secretary's Petition For Rehearing en Banc

Hochgeladen von

Copyright:

Verfügbare Formate

Appellate Case: 14-1387

Date Filed: 12/11/2014

December 11, 2014

Counsel for Appellant Citizens United

Appellate Case: 14-1387

Date Filed: 12/11/2014

The Secretarys Petition Fails To Meet The Stringent

The Panels Holding Is Compelled By Binding Supreme

Appellate Case: 14-1387

Date Filed: 12/11/2014

Appellate Case: 14-1387

Date Filed: 12/11/2014

Appellate Case: 14-1387

Date Filed: 12/11/2014

Appellate Case: 14-1387

Date Filed: 12/11/2014

Appellate Case: 14-1387

Date Filed: 12/11/2014

Appellate Case: 14-1387

Date Filed: 12/11/2014

The Secretarys Petition Fails To Meet The Stringent Standards

Appellate Case: 14-1387

Date Filed: 12/11/2014

Appellate Case: 14-1387

Date Filed: 12/11/2014

print periodical or own a broadcast station.

Appellate Case: 14-1387

Date Filed: 12/11/2014

Appellate Case: 14-1387

Date Filed: 12/11/2014

Appellate Case: 14-1387

Date Filed: 12/11/2014

5-8) is flatly wrong. Colorados reporting and disclosure law is discriminatory on

The Panels Holding Is Compelled By Binding Supreme Court

should be denied because the panels decision is compelled by binding Supreme

Appellate Case: 14-1387

Date Filed: 12/11/2014

Appellate Case: 14-1387

Date Filed: 12/11/2014

dozens of films exploring controversial political organizations, personalities, and

Appellate Case: 14-1387

Date Filed: 12/11/2014

tions of independent expenditures and electioneering communications are subject

Tr. 6:6-17; 13:22-14:6; 28:18-29:19.

The Secretary has only

himself to blame for any unworkab[ility] and confusi[on] (Pet. 8) in a regime of

Appellate Case: 14-1387

Date Filed: 12/11/2014

Appellate Case: 14-1387

Date Filed: 12/11/2014

The Secretary has identified no

It is also impossible to reconcile Colorados apparent hostility to obscure

Appellate Case: 14-1387

Date Filed: 12/11/2014

Counsel for Appellant Citizens United

Appellate Case: 14-1387

Date Filed: 12/11/2014

CERTIFICATION OF DIGITAL SUBMISSION AND ANTI-VIRUS SCAN

Appellate Case: 14-1387

Date Filed: 12/11/2014

Appellate Case: 14-1387

Date Filed: 12/11/2014

Capital Reporting Company