STATE OF COLORADO

OFFICE OF ADMINISTRATIVE COURTS

1525 Sherman Street, 4th Floor
Denver, CO 80203
Campaign Integrity Watchdog,
Complainant,
v.
Colorado Office of Judicial Performance
Evaluation,
Respondent.
COURT USE ONLY
CYNTHIA H. COFFMAN, Attorney General
Case No. OS-2016-0026
MATTHEW D. GROVE, Assistant Solicitor
General*
CHRISTOPHER M. JACKSON, Assistant Attorney
General*
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 6th Floor
Denver, CO 80203
Tel: (720) 508-6157/6178
Fax: (720) 508-6104
Email: matt.grove@coag.gov
christopher.jackson@coag.gov
Registration Nos.: 34269; 49202
*Counsel of Record
PROPOSED REPLY IN SUPPORT OF THE MOTION TO DISMISS
The Colorado Office of Judicial Performance Evaluation (COJPE) submits
this proposed reply in support of its motion to dismiss Campaign Integrity
Watchdogs (CIW) complaint.
ARGUMENT
I.

Article 5.5 takes precedence over Section 117.

COJPE argued in its motion to dismiss that CIWs interpretation of Section

117 is in irreconcilable conflict with Article 5.5. CIW responds by asserting that
Exhibit A

this irreconcilable conflict is not between two statutes, but between a statute and
the state constitution. Dec. 19, 2016 Response, at 4 ([T]he Constitution takes
precedence over statute, and controls here.). But this argument misconstrues the
law. CIWs first claim for relief is for a violation of Section 117, which prohibits
state entities from mak[ing] any contribution in campaigns involving the
nomination, retention, or election of any person to any public office . 1-45117(1)(a)(I), C.R.S. While it is true that the term contribution is defined in the
state constitution, see COLO. CONST. art. XXVIII, 2(5)(a), that does not mean that
Section 117s broader restriction on state entities is a constitutional command. In
other words, there is no constitutional provision that says state entities may not use
public funds to contribute to a campaign; the fact that a word in a statute is defined
by the constitution does not mean that the statute itself is somehow transplanted
into the constitution.
CIW also claims that Section 117 was amended in 2010, after Article 5.5 was
enacted, and that this amendment expressed the legislatures manifest intent to
overturn Article 5.5. Response, at 4 n.6. But that is wrong on both counts. The
2010 amendments to Section 117 do not make any substantives changes to the
prohibition on contributions:
(I) No agency, department, board, division, bureau, commission, or
council of the state or any political subdivision thereof OF THE
STATE shall make any contribution in campaigns involving the
nomination, retention, or election of any person to any public
office, NOR SHALL ANY SUCH ENTITY MAKE ANY DONATION TO
ANY OTHER PERSON FOR THE PURPOSE OF MAKING AN
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INDEPENDENT EXPENDITURE , nor shall any such entity expend

any public moneys from any source, or make any contributions, to urge
electors to vote in favor of or against any:
2010 Colo. Sess. Laws, ch. 269, p. 1237, 8. The only change to the provision at
issue in this caseremoving the word thereof and substituting of the state in its
placewas stylistic. And in any event, that change certainly does not establish the
manifest intent of the General Assembly to repeal the entirety of Article 5.5. See
City of Florence v. Pepper, 145 P.3d 654, 657 (Colo. 2006) (A statutory construction
that effects a repeal by implication is not favored unless unavoidable.).
II.

COJPEs advertisements are not contributions.

CIW asserts that Section 117 is intended to prohibit any taxpayer-funded

government entity from competing with voters or citizen groups, using their own
tax money, in political campaigns . Response, at 6. In support, CIW quotes a
portion of Section 117: nor shall any such entity expend any moneys from any
sources, or make any contributions, to urge electors to vote in favor of or against
any Id. (quoting 1-45-117). But CIW neglects to quote the full sentence;
Section 117 goes on to say that this broad prohibition on expending money to urge
electors to vote only applies to a Statewide ballot issue, Local ballot issue,
Referred measure, or Measure for the recall of any officer. 1-45117(1)(A)(I)(A)-(D). The provision of Section 117 CIW emphasizes bears is
irrelevant to this case. Selective quotations aside, CIWs position is without merit.
As COJPE noted in its motion to dismiss, the portion of Section 117 at issue in this
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case only prohibits state entities from mak[ing] any contribution in campaigns .
1-45-117(1)(a)(I) (emphasis added). Section 117s scope is substantially narrower
than CIW claims.
Next, CIW says that a contribution does not require coordination between the
contributor and the recipient. But the Court should reject that argument for two
reasons. First, as COJPE noted in its motion to dismiss, the state constitution
implies that a contribution requires coordination. Article XXVIII defines an
independent expenditure as an expenditure that is not controlled by or
coordinated with any candidate or agent of such candidate. COLO. CONST. art.
XXVIII, 2(9) (emphasis added). That provision goes on to say that [e]xpenditures
that are controlled by or coordinated with a candidate or candidates agent are
deemed to be both contributions by the maker of the expenditures, and expenditures
by the candidate committee. Id. (emphasis added). The inclusion of this language
makes sense: as a practical matter, it would be illogical to say that a thing of value
is given to a candidate without some any coordination between the candidate and
the contributor.
Second, a coordination element is required to ensure that the state
constitution is consistent with the First Amendment. The US Supreme Court has
held that independent expenditures pose no threat of quid pro quo corruption
because they are not coordinated with any candidate, and that as a result, the
government cannot put a limit on the amount of independent expenditures a person
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or corporation may make. E.g., Citizens United v. Fed. Election Commn, 558 U.S.
310, 357 (2010) (Limits on independent expenditures, such as 441b, have a
chilling effect extending well beyond the Governments interest in preventing quid
pro quo corruption.). Contributions, in contrast, do pose a threat of corruption, and
for that reason the federal or a state government may impose limits on them. Id.
(The Buckley Court, nevertheless, sustained limits on direct contributions in order
to ensure against the reality or appearance of corruption.). If CIW is correctif
contributions under state law do not require coordinationthen Colorados
contribution limits will, in at least some circumstances, violate the First
Amendment. Suppose, for example, that a person spends $1,000 to run an
advertisement in support of a candidate for governor, but does not coordinate the
advertisement with that candidate. That $1,000 would simultaneously be a
contribution under state lawthereby violating the $500 limit imposed by COLO.
CONST. art. XXVIII, 3(1))and an independent expenditure for First
Amendment purposesand for that reason cannot be subject to any such limit. To
avoid the potential conflict between the federal and state law, the Court should
exercise constitutional avoidance and hold that a contribution requires
coordination. See People v. Montour, 157 P.2d 489, 403-04 (Colo. 2007) (We resolve
the question [on] the doctrine of constitutional avoidance, under which courts have
a duty to interpret a statute in a constitutional manner where the statute is
susceptible to a constitutional construction.).
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III.

COJPE did not make any electioneering communications.

With respect to the electioneering communications allegations, COJPE

stands on the arguments made in its motion to dismiss.
CONCLUSION
Because CIWs Complaint does not state a claim upon which relief may be
granted, the Court should dismiss it.
Respectfully submitted this 19th day of December, 2016.
CYNTHIA H. COFFMAN
Attorney General
/s/ Christopher M. Jackson
MATTHEW D. GROVE, 34269*
Assistant Solicitor General
CHRISTOPHER M. JACKSON, 49202*
Assistant Attorney General
Public Officials Unit
*Counsel of Record