Brownstein Answer Brief June 2015.pdf

8/20/2019 Brownstein Answer Brief June 2015.pdf

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Court of Appeals, State of Colorado

2 East 14th

Ave., Denver, CO 80203

COURT USE ONLY

Appeal from District Court, City and County ofDenver The Honorable Robert L. McGahey Jr.Case Number: 2014CV031851

Plaintiff/Appellee:

COLORADO REPUBLICAN PARTYv.

Defendant/Appellee: WAYNE WILLIAMS, in hisofficial capacity as Colorado Secretary of State

and

Intervenor Defendant/Appellant: COLORADOETHICS WATCH

Attorneys for Appellee Colorado Republican Party: Case No.: 2014CA001945

Name(s): Christopher O. Murray, #39340

Address: Brownstein Hyatt Farber Schreck, LLP

410 Seventeenth Street, Suite 2200Denver, CO 80202-4432

Phone:FAX :E-mail:

[email protected]

ANSWER BRIEF



CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with all requirements of C.A.R. 28

and C.A.R. 32, including all formatting requirements set forth in these rules.

Specifically, the undersigned certifies that:

The brief complies with C.A.R. 28(g).Choose one:It contains 9,498 words (excluding the caption, table of contents,table of authorities, certificate of service, this certificate of

compliance, signature block, and any addendum).It does not exceed 30 pages.

The brief complies with C.A.R. 28(k).For the party raising the issue:It contains under a separate heading (1) a concise statement of theapplicable standard of appellate review with citation to authority; and(2) a citation to the precise location in the record (R. , p. ), not to anentire document, where the issue was raised and ruled on.

For the party responding to the issue:It contains, under a separate heading, a statement of whether AppelleeColorado Republican Party agrees with the statements of AppellantColorado Ethics Watch concerning the applicable standard of reviewand preservation for appeal, and if not, why not.

I acknowledge that my brief may be stricken if it fails to comply with any ofthe requirements of C.A.R. 28 and C.A.R. 32.

/s/ Christopher O. Murray

Christopher O. Murray, #39340



Table of Contents

Page

i

STATEMENT OF THE ISSUES .............................................................................3

I. Nature of the Case................................................................................5

II. Course of Proceedings..........................................................................6III. Disposition by the Trial Court .............................................................6

STATEMENT OF FACTS .......................................................................................7

SUMMARY OF THE ARGUMENT.......................................................................9

ARGUMENT..........................................................................................................11

I. Standard of Review ............................................................................11

II. Colorado Law Permits Political Parties to Establish

Independent Expenditure Committees That Are Not Subject toContribution Limits or Source Restrictions Applicable toPolitical Parties...................................................................................14

A. Colorado Law Unambiguously Provides That PoliticalParties May Establish Independent ExpenditureCommittees ..............................................................................15

B. CORE Cannot Qualify as a “Political Party” or a“Political Committee” and May Not Be Treated As Oneunder Colorado Law ................................................................16

C. CEW’s Argument Requires the Judicial Invention of A New Type of Political Organization Not RecognizedUnder Existing Law.................................................................19

D. CEW’s Proposed Interpretation Is Incompatible With theStructure of Colorado’s Campaign Finance Regime...............20

III. The Establishment of Independent Expenditure Committees byPolitical Parties Is Consistent with Article XXVIII of theColorado Constitution ........................................................................22

IV. The District Court’s Finding that CORE is Independent of CRPIs Amply Supported by the Record....................................................24

A. CORE Does Not Coordinate Its Expenditures with CRPor Candidates ...........................................................................25



Table of Contents(continued)

Page

ii

B. CORE Does Not and May Not Coordinate with CRP orCandidates In Any Respect......................................................27

C. CEW Relies Solely on Unsupported Speculation ofFuture Coordination.................................................................28

1. The CRP Chairman’s Limited Role Does NotUndermine the Independence of CORE’sExpenditures ..................................................................30

2. Limits on the Scope of CORE’s Mission Are BothAppropriate and Legally Required................................31

3. The Standing Rules’ Cross-Reference to the CRP

Bylaws Is Irrelevant to the Independence ofCORE’s Expenditures ...................................................34

V. CRP’s Right to Establish an Independent ExpenditureCommittee Is Protected by the First Amendment..............................35

A. Limits on Contributions to Independent ExpenditureOrganizations Are Per Se Unconstitutional.............................36

B. CORE’s Limited Relationship with CRP Does NotRender CORE A Political Party ..............................................38

C. Limitations on Contributions to Political Parties for theSole Purpose of Making Independent Expenditures AreLikely Unconstitutional ...........................................................43

CONCLUSION.......................................................................................................47



iii

TABLE OF AUTHORITIES

Page(s)

Cases

Bd. of Directors, Metro Wastewater Reclamation Dist. v. Nat'l Union

Fire Ins. Co. of Pittsburgh, PA,105 P.3d 653 (Colo. 2005)..................................................................................45

Buckley v. Valeo,424 U.S. 1 (1976)..........................................................................................34, 35

Carey v. Fed. Election Comm’n,

791 F. Supp. 2d 121 (D.D.C. 2011)....................................................................44

Citizens United v. Federal Election Commission,558 U.S. 310 (2010)..................................................................................... passim

Citywide Banks v. Armijo,313 P.3d 647 (Colo. App. 2011).........................................................................12

Colo. Republican Fed. Campaign Comm. v. Fed. Election Comm’n,518 U.S. 604 (1996)............................................................................................41

Emily’s List v. Fed. Election Comm’n,581 F.3d 1 (D.C. Cir. 2009)................................................................................44

Federal Election Comm’n v. Colorado Republican Federal Campaign

Comm.,533 U.S. 431 (2001)......................................................................................37, 38

Huddleston v. Grand Cnty. Bd. of Equalization,913 P.2d 15 (Colo. 1996)....................................................................................13

Insul-Lite Window & Door Mfg., Inc. v. Indus. Comm'n,723 P.2d 151 (Colo. App. 1986).........................................................................11



iv

In re Interrogatories Propounded by Governor Ritter, Jr., Concerning

Effect of Citizens United v. Fed. Election Comm'n,558 U.S. ---- (2010) on Certain Provisions of Article XXIII of

Constitution of State, 227 P.3d 892, 894 (Colo. 2010) ......................................21

In re Interrogatory Propounded by Governor Roy Romer on House

Bill 91S-1005,814 P.2d 875 (Colo. 1991)..................................................................................30

In re Life Ins. Trust Agreement of Julius F. Seeman, Dated April 19,

1962,841 P.2d 403 (Colo. App. 1992).........................................................................12

Long Beach Area Chamber of Commerce v. City of Long Beach,603 F.3d 684 (9th Cir. 2010) ..............................................................................36

McConnell v. Federal Election Comm’n,540 U.S. 93 (2003)............................................................................37, 38, 42, 43

McCutcheon v. Fed. Election Comm’n,134 S. Ct. 1434 (2014)..................................................................................35, 43

Montez v. People,

269 P.3d 1228 (Colo. 2012)................................................................................17 N. Carolina Right to Life, Inc. v. Leake,

525 F.3d 274 (4th Cir. 2008) ..............................................................................37

N.Y. Progress and Protection PAC v. Walsh,17 F. Supp. 3d 319, 322 (S.D.N.Y. 2014) ..........................................................28

New Design Constr. Co. v. Hamon Contractors, Inc.,215 P.3d 1172 (Colo. App. 2008).......................................................................10

P.F.P. Family Holdings, L.P. v. Stan Lee Media, Inc.,252 P.3d 1 (Colo. App. 2010).............................................................................11

People v. Cross,127 P.3d 71 (Colo. 2006)..............................................................................16, 18



v

People v. Diaz ,2015 CO 28.........................................................................................................20

People v. Jaso,2014 COA 131....................................................................................................34

Pierson v. Black Canyon Aggregates, Inc.,48 P.3d 1215 (Colo. 2002)..................................................................................14

Reid v. Berkowitz ,315 P.3d 185 (Colo. App. 2013)...........................................................................9

Republican National Comm. v. Federal Election Comm’n,

698 F. Supp. 2d 150 (D.C.C. 2010)..............................................................38, 43 Republican Party of N.M. v. King ,

741 F.3d 1089 (10th Cir. 2013) ................................................................... passim

Rufer v. Fed. Election Comm’n,--- F. Supp. 3d ---, 2014 WL 4076053 (D.C.C. Aug. 19, 2014) ........................42

S. Fork Water & Sanitation Dist. v. Town of S. Fork ,252 P.3d 465 (Colo. 2011)....................................................................................9

Softrock Geological Services, Inc. v. Indus. Claim Appeals Office,328 P.3d 222 (Colo. App. 2012).........................................................................12

SpeechNow.org v. Fed. Election Comm’n,599 F.3d 686 (D.C. Cir. 2010)............................................................................36

Texans for Free Enter. v. Tex. Ethics Comm’n,732 F.3d 535 (5th Cir. 2013) ..............................................................................36

Thalheimer v. City of San Diego,

2012 WL 177414 (S.D. Cal. Jan. 20, 2012) .......................................................45

Wis. Right to Life State Political Action Comm. v. Barland ,664 F.3d 139 (7th Cir. 2011) ..............................................................................36



vi

Statutes

C.R.S. § 1-45-103 ............................................................................................. passim

C.R.S. § 1-45-103.7 .............................................................................................7, 15

C.R.S. § 1-45-107.5 .......................................................................................... passim

C.R.S. § 1-45-108 ....................................................................................................19

Constitional Provisions

Colo. Const, art. XXVIII, § 2 ..................................................................13, 16, 2, 24

Colo. Const., art. XXVIII, § 3 .......................................................................... passim

Colo. Const., art. XXVIII, § 5 .....................................................................19, 21, 24

Colo. Const., art. XXVIII, § 9 .................................................................................33

Colo. Const., art XXVIII § 10 .................................................................................33

U.S. Const., amend. I ........................................................................................ passim

Other Authorities

11 C.F.R. § 104.20...................................................................................................31

11 C.F.R. § 110.20.....................................................................................................2

8 CCR 1505-6, Rule 1.4.........................................................................24, 25, 26, 32

8 CCR 1505-6, Rule 5.1...........................................................................................19

8 CCR 1505-6, Rule 5.2...........................................................................................15

8 CCR 1505-6, Rule 8.1...........................................................................................30

FEC MUR 5943 .......................................................................................................26

FEC MUR 5440 .......................................................................................................28

FEC MUR 5754 .......................................................................................................27



vii

FEC MUR 6059 .......................................................................................................27



INTRODUCTION

Plaintiff/Appellee Colorado Republican Party (“CRP”) submits this Answer

Brief and requests that the Court affirm the district court’s entry of summary

judgment in CRP’s favor. Because “any person,” may establish an independent

expenditure committee under Colorado law, the district court correctly held that

the Colorado Republican Party Independent Expenditure Committee (“CORE”),

like all other independent expenditure committees, may accept contributions in

unlimited amounts from any source. The district court’s construction of the

relevant statutes not only comports with their plain text and Colorado’s broader

campaign finance regulatory regime, but is necessary to protect CRP’s First

Amendment rights of speech and association.

STATEMENT OF THE ISSUES

While CRP largely agrees with Intervenor Defendant/Appellant Colorado

Ethics Watch’s (“CEW”) recitation of three of the issues before the Court, it has

reformulated their presentation somewhat, in part to reflect the appropriate

standard of review applicable to the district court’s determinations. In addition,



2

CRP also raises a fourth issue pertaining to the First Amendment implications of a

finding that the district court’s legal conclusions were erroneous.1

1. Whether the district court erred in ruling that the monetary limits and

source restrictions2

set forth in Colo. Const., art. XXVIII, § 3 do not apply to

contributions received by an independent expenditure committee established by a

political party pursuant to C.R.S. § 1-45-107.5.

2. If the district court did not err by interpreting Colorado’s independent

expenditure committee statute to allow a political party to establish an independent

expenditure committee that is not subject to contribution limits and source

restrictions, whether the statute is unconstitutional as contrary to Colo. Const., art.

XXVIII, § 3.

3. Whether the district court’s factual finding that CORE is independent

of CRP was clearly erroneous and not supported by the record.

4. If the district court erred in holding that an independent expenditure

committee established by a political party may accept contributions not subject to

1 Although CEW addressed the constitutional argument in its opening brief,

see Opening Brief at 19-23, it did not identify it as a separate issue.2 CRP does not challenge the validity or applicability of the federal and state

prohibitions on independent expenditures—and contributions for the purpose ofeffectuating the same—by foreign nationals and foreign governments inconnection with state and local elections. See 11 C.F.R. § 110.20; Colo. Const.,art. XXVIII, § 3(12)(a)-(b).



3

amount and source restrictions, whether Article XXVIII, § 3 of the Colorado

Constitution and/or C.R.S. § 1-45-107.5 are, as applied to CRP in this case, an

unconstitutional abridgement of CRP’s speech and associational freedoms under

the First and Fourteenth Amendments to the United States Constitution.

STATEMENT OF THE CASE

I. Nature of the Case

This case hinges on a straightforward application of the unambiguous

statutory directive that any person—including a political party—may establish an

“independent expenditure committee,” which, by definition, may accept unlimited

contributions from any source. Indeed, CEW’s Opening Brief effectively admits

that CORE is an “independent expenditure committee” under Colorado law.

Because such an outcome is ideologically unacceptable to CEW, however, it has

coupled its admission with a request that this Court sit in place of the General

Assembly and correct what it views as a legislative mistake by rewriting the

relevant statutes to effectively create a new category of “independent expenditure

committee” that is subject to contribution restrictions. The Court cannot do this,

and even if it were tempted to do so, it would necessarily run afoul of the First

Amendment.



4

II. Course of Proceedings

On May 8, 2014 CRP filed a Verified Complaint against the Secretary of

State in the district court seeking a declaration that Colorado law and/or the First

Amendment to the United States Constitution provide that CRP may sponsor,

maintain and operate an independent expenditure committee that may raise funds

in any amounts from any source permissible under Colorado law. R. 1-10. CEW

filed an unopposed motion to intervene and answer to the Verified Complaint on

June 17, 2014. R. 22-28. The district court allowed CEW’s intervention on June

18, 2014. R. 29. CRP moved for summary judgment based on the parties’ factual

stipulations on August 8, 2014. R. 57-78. Although the Secretary of State filed

an answer to the Verified Complaint, R. 34-43, he did not participate in the

summary judgment briefing.

III. Disposition by the Trial Court

On September 30, 2014, the district court entered summary judgment in

CRP’s favor, “confirming CRP’s authorization under existing law to sponsor,

maintain, and operate [CORE] as would any other person under Colorado law.” R.

152. CEW filed a notice of appeal on October 6, 2014. R. 159-165.



5

STATEMENT OF FACTS

CRP is a Colorado unincorporated non-profit membership organization, and

is comprised of the officers and certain other representatives from each of the

sixty-four affiliated Republican county political party committees, and Republican

elected officials at the state and district level in Colorado. R. 58. On November 8,

2013 CRP petitioned the Colorado Secretary of State for a declaratory order

requesting confirmation that Colorado law permits CRP to establish an

independent expenditure committee that may raise funds in unlimited amounts

from any permissible source. R. 4. While declining to issue a declaratory order,

the Secretary of State’s office provided an advisory opinion on February 6, 2014,

which concluded that political parties are entitled to operate independent

expenditure committees under Colorado law, and that such committees may raise

funds in any amount from any permissible source. R. 137-47.

On May 7, 2014 CRP registered CORE with the Secretary of State as an

independent expenditure committee. R. 83. In accordance with the Committee

Standing Rules and Governance Provisions of the Colorado Republican Party

Independent Expenditure Committee (the “Standing Rules”), which were adopted

on August 8, 2014, id., CORE is governed by an Executive Director and a

Management Committee consisting of at least three but no more than seven



6

individuals. R. 79 [Rule 2]. CORE’s first Executive Director was appointed on

May 7, 2014, and two additional members of the Management Committee took

office on July 29, 2014. R. 59. While the Chairman of the CRP initially appoints

the Executive Director and Management Committee members, their terms of office

are fixed by the Standing Rules, and they may be removed by the Chairman only

“for cause, such as fraud or malfeasance, upon the recommendation of the

remaining members of the management committee.” R. 79 [Rule 3].

The Standing Rules contain comprehensive and detailed directives that

categorically proscribe any coordination between CORE and either CRP or

candidates for state and local office in Colorado. Specifically, the management

and development of CORE’s plans, projects, activities, and expenditures must be

conducted entirely independently of CRP. R. 80 [Rule 5]. In the same vein,

officers, agents and other affiliates of both CRP and CORE are strictly prohibited

from making any requests or suggestions to, or otherwise communicating with,

their counterparts in the other organization concerning expenditures or

electioneering communications. R. 81 [Rule 11]. Parallel restrictions govern

CORE’s interactions with candidates whom it will support. R. 80 [Rules 5, 8, 10].

In addition to these extensive safeguards against the sharing of non-public

information, the Standing Rules also provide for a pervasive structural separation



7

between CRP and CORE. For example, CORE’s Executive Director and

Management Committee members must not hold any office or position with the

CRP party organization during their tenures, R. 80 [Rule 6], and CRP and CORE

are generally prohibited from sharing common consultants or vendors. R. 81 [Rule

13]. Further, aside from voting in party primaries or caucuses in their personal

capacities, CORE’s directors may not participate in any way in the nomination or

designation of any Republican candidate for public office. R. 80 [Rule 7].

In an affidavit submitted to the district court, Ryan Call, then the Chairman

of CRP, affirmed that his interactions with CORE’s Executive Director and

Management Committee complied fully with the Standing Rules. R. 84.

SUMMARY OF THE ARGUMENT

The Colorado General Assembly already has resolved the issue before the

Court by expressly providing that “any person” may establish an “independent

expenditure committee.” See C.R.S. § 1-45-103(11.5). A creature of the Fair

Campaign Practices Act, an independent expenditure committee is by definition

unencumbered by any restrictions on the contributions it may accept, see C.R.S. §

1-45-103.7(2.5)—a prerogative that derives directly from the United States

Supreme Court’s holding in Citizens United v. Federal Election Commission, 558



8

U.S. 310 (2010), that no valid governmental interest can sustain limitations on

independent expenditures.

To avert this ideologically unpalatable outcome, CEW engages in

interpretative acrobatics in an effort to subject CORE to the contribution limits

imposed on political parties. This argument— effectively a request to create a new

class of political organization by judicial fiat—is incompatible with the plain

statutory text and also would introduce disruptive repercussions into the larger

campaign finance regulatory regime. In the same vein, CEW proffers a halfhearted

argument that the relevant statutes offend Article XXVIII, § 3 of the Colorado

Constitution, despite the absence of any textual support for such a proposition.

In addition, CEW assails the district court’s factual finding that CORE is

independent of CRP. An analysis of the Standing Rules, however, confirms that

they erect a comprehensive and robust organizational infrastructure to prevent

coordination of any sort between CORE and either CRP or candidates. CEW’s

contentions to the contrary ultimately are reducible to speculative conjectures

about how the Standing Rules’ provisions could in theory be engineered to induce

coordination, and offer no basis for disturbing the district court’s conclusion.

Finally, the imposition of source or amount restrictions on contributions to

independent expenditure committees would transgress First Amendment freedoms



9

of speech and association. Regardless of whether limits on contributions to

political parties themselves for independent expenditures remain constitutionally

valid (an increasingly dubious proposition), federal courts, including the Tenth

Circuit, have consistently affirmed that independent expenditure organizations—to

include those founded by and maintaining ties with political parties—retain a First

Amendment prerogative to accept contributions without limit from any source.

ARGUMENT

I. Standard of Review

This Court generally will “defer to the trial court’s credibility determinations

and will disturb its findings of historical fact only if they are clearly erroneous and

are not supported by the record,” but will “review de novo the trial court's

application of the governing statutory standards.” Reid v. Berkowitz , 315 P.3d 185,

189 (Colo. App. 2013) (internal citation omitted); see also S. Fork Water &

Sanitation Dist. v. Town of S. Fork , 252 P.3d 465, 468 (Colo. 2011). The parties

agree that the questions of statutory and constitutional interpretation presented—

i.e., whether Colorado law and/or the federal Constitution permit CRP to establish

an independent expenditure committee that may accept contributions in unlimited

amounts and not subject to the source restrictions imposed on political parties—are

subject to de novo consideration by this Court.



10

Integral to the district court’s legal conclusions, however, was its factual

finding that CORE is operationally and functionally “independent” of CRP, and

thus qualifies as an “independent expenditure committee” within the meaning of

Section 1-45-103(11.5) of the Colorado Revised Statutes. Concluding that

CORE’s Standing Rules adequately ensure that CORE’s operations and activities

remain separate from and uncoordinated with those of CRP, the district court noted

that CEW “has offered no evidence that [CORE] will, in the future, not abide by its

own rules.” R. 151. Predicating its application of the relevant statutory provisions

on this antecedent finding of CORE’s independence, the district court entered

summary judgment in CRP’s favor.

CEW seeks to recast this quintessentially factual determination as a legal

pronouncement by characterizing it as the “interpretation of a written instrument

that is also subject to de novo review.” Opening Brief at 9. This argument,

however, conflates disputes concerning the legal denotation of contractual words

and phrases (which are undoubtedly questions of law), see New Design Constr. Co.

v. Hamon Contractors, Inc., 215 P.3d 1172, 1181 (Colo. App. 2008), with judicial

efforts discern the practical effect of unambiguous terms, which are inescapably

factual endeavors, see Insul-Lite Window & Door Mfg., Inc. v. Indus. Comm'n, 723

P.2d 151, 152 (Colo. App. 1986) (affirming agency’s “factual determinations”



11

concerning the “nature of the [parties’] relationship” which was in turn predicated

partly on agency’s analysis of parties’ written contract).

As discussed infra, there is no material disagreement regarding the contents

or definitional meaning of the Standing Rules’ provisions; no party contests, for

example, the proper construction of the prohibition on CRP and CORE’s retention

of common vendors (Rule 13) or the exclusion of CRP personnel from CORE’s

management committee (Rule 5). The Standing Rules were introduced in the trial

court not as a source of legal rights or obligations between the parties (i.e., CEW

and CRP), but rather only as extrinsic evidence of an operative fact, i.e., whether

the Standing Rules’ structural safeguards in fact secure CORE’s independence

from CRP. In this vein, the apposite analogies are not cases featuring interpretive

disagreements concerning what is entailed or commanded by particular

organizational bylaws, see P.F.P. Family Holdings, L.P. v. Stan Lee Media, Inc.,

252 P.3d 1 (Colo. App. 2010) (cited by CEW), but rather disputes concerning the

nature and status of the parties’ actual relationship. Colorado courts have

recognized that although cases pertaining to, e.g., the existence of an independent

contractor or agency relationship, nominally feature the application of legal terms

of art, they ultimately often pivot on a factual appraisal of the parties’ actual

conduct and dealings. See, e.g., Citywide Banks v. Armijo, 313 P.3d 647, 651



12

(Colo. App. 2011) (“The existence of an agency relationship is ordinarily a

question of fact, and thus a trial court's finding of an agency relationship may not

be set aside unless clearly erroneous.”) (internal citation omitted); Softrock

Geological Services, Inc. v. Indus. Claim Appeals Office, 328 P.3d 222, 224 (Colo.

App. 2012) (“The existence of an employment relationship is a question of fact.”).

Because the district court’s conclusions regarding the existence and degree

of CORE’s independence from CRP are more accurately conceptualized as

findings of fact, they are subject to reversal only upon a showing that they were

wholly unsupported by the record. See In re Life Ins. Trust Agreement of Julius F.

Seeman, Dated April 19, 1962, 841 P.2d 403, 406 (Colo. App. 1992) (“A court's

finding based upon a choice between two plausible views of the weight of the

evidence or upon a choice of conflicting inferences from the evidence is ‘not

clearly erroneous.’”).

II. Colorado Law Permits Political Parties to Establish Independent

Expenditure Committees That Are Not Subject to Contribution Limits

or Source Restrictions Applicable to Political Parties

The Colorado General Assembly already has settled the question of whether

political parties may establish independent expenditure committees. In 2010, that

body adopted amendments to the Fair Campaign Practices Act that unambiguously

provide one or more persons may form an independent expenditure committee. A



13

political party is a person under the Colorado Constitution. Hence, CRP is entitled

to establish an independent expenditure committee on the same terms as any other

person in Colorado. CEW’s tortuous interpretation, which struggles to interpolate

the contribution limits applicable to political parties into the statute governing

independent expenditure committees, cannot be reconciled with the clear text or

broader regulatory structure.

A. Colorado Law Unambiguously Provides That Political PartiesMay Establish Independent Expenditure Committees

“Where statutory language is clear and unambiguous…there is no need to

resort to interpretive rules of statutory construction.” Huddleston v. Grand Cnty.

Bd. of Equalization, 913 P.2d 15, 18 (Colo. 1996). Colorado law provides “one or

more persons that make an independent expenditure in an aggregate amount in

excess of one thousand dollars or that collect in excess of one thousand dollars

from one or more persons for the purpose of making an independent expenditure”

constitute an “independent expenditure committee.” C.R.S. § 1-45-103(11.5). The

Colorado Constitution defines “person” as, inter alia, “any…political party or

other organization or group of persons.” Colo. Const., art. XXVIII, § 2(11); C.R.S.

§ 1-45-103(13). Thus, CRP, as a political party, is entitled to establish an

independent expenditure committee on equal terms as any other individual or

organization. See Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1218-



14

19 (Colo. 2002) (“[I]f courts can give effect to the ordinary meaning of the words

adopted by a legislative body, the statute should be construed as written since it

may be presumed that the General Assembly meant what it clearly said.” (internal

quotation omitted)). It did so when it established CORE.

B. CORE Cannot Qualify as a “Political Party” or a “Political

Committee” and May Not Be Treated As One under Colorado

Law

Unable to contrive any ambiguity in the statutory text, CEW implicitly

concedes that CORE is indeed an “independent expenditure committee,” within the

meaning of C.R.S. § 1-45-103(11.5), but argues that it must be subject to the

contribution source and amount limitations imposed on political parties pursuant to

Article XXVIII, § 3. But CORE simply is not a political party. Article XXVIII, §

2(13) defines “political party” as an entity that “nominate[s] candidates for the

official general election ballot.” CORE undisputedly does not nominate

candidates; indeed, the Standing Rules explicitly proscribe CORE’s Executive

Director and Management Committee from participating “in the nomination or

designation of any Republican candidate for office.” R. 80 [Rule 7].3

3 Although the denotation of “political party” encompasses regional affiliates“at the state, county, and election district levels,” this ancillary facet of thedefinition—which pertains only to geographical subunits of the CRP—has noapplication to CORE, which is a separate and distinct entity that conducts



15

If that were not enough, Colorado law expressly provides that an

independent expenditure committee “shall not be treated as a political committee

and, therefore, shall not be subject to” the contribution limits otherwise imposed on

political committees. C.R.S. § 1-45-103.7(2.5); see also 8 CCR 1505-6, Rule 5.2

(“A committee that raises money solely for the purpose of making independent

expenditures, and which does not make contributions to candidates, shall be an

independent expenditure committee and shall not be considered a political

committee. An independent expenditure committee is not subject to the political

committee restrictions in Article XXVIII, Section 3(5)”).

Nevertheless, CEW contends that the statute exempts independent

expenditure committees only from the contribution limits imposed by Article

XXVIII, § 3(5), which apply specifically to political committees, and argues on this

basis that independent expenditure committees may be subjected to the

contribution limits applicable to political parties. This is unavailing for two

reasons. First, C.R.S. § 1-45-107.5’s reference to Section 3(5) reflects the fact

that, prior to the statute’s enactment, a committee established by a political party to

make independent expenditures would qualify as a “political committee” and be

governed by the contribution limits applicable to such organizations. See Art.

independent operations governed by individuals not affiliated in any way with theCRP.



16

XXVIII, § 2(12)(a) and (c)(III) (contemplating the creation of political committees

by political parties). Consistent with Citizens United , C.R.S. § 1-45-107.5 plainly

intended to provide that organizations making only independent expenditures now

constitute a distinct organizational species and are not subject to any contribution

limits; the contention that the statute sub silentio substituted the contribution

ceiling applicable to political committees with that governing political parties is

untenable. See People v. Cross, 127 P.3d 71, 73 (Colo. 2006) (“We do not add or

subtract statutory words that contravene the legislature's obvious intent.”). Second,

CEW’s argument fails for the simple reason that, whatever else it might be, CORE

is not itself a “political party,” i.e., an entity that “nominate[s] candidates for the

official general election ballot.” Art. XXVIII, § 2(13). Thus, there is no textual

basis for subjecting it to Art. XXVIII, § 3(3) and 3(4), which by their terms apply

only to political parties themselves.

C. CEW’s Argument Requires the Judicial Invention of A New Type

of Political Organization Not Recognized Under Existing Law

In effect, CEW advocates the judicial creation of an entirely new species of

political organization nowhere contemplated in Article XXVIII or the Colorado

Revised Statutes—namely, an entity formally denominated as an “independent

expenditure committee” but subject to the contribution restrictions that are

applicable only to political parties. The novel class of entity envisaged by CEW is



17

wholly untethered from the constitutional and statutory texts. See Montez v.

People, 269 P.3d 1228, 1232 (Colo. 2012) (“In respecting the legislature's

phrasing, we do not add words to a statute that simply are not there.”). It is also

conceptually and legally an oxymoron. Independent expenditure committees are,

by definition, organizations that make only independent expenditures and thus may

accept contributions from virtually any source without limitation. C.R.S. § 1-45-

103(11.5). As discussed infra, this distinguishing attribute of independent

expenditure committees ultimately is of constitutional provenance and has been

expressly adopted by the General Assembly in response to Citizens United . In

short, the statutory text unambiguously provides that all “persons,” which is

explicitly defined to include political parties, may organize “independent

expenditure committees.” Such entities are necessarily entitled to accept unlimited

contributions from any source.

D. CEW’s Proposed Interpretation Is Incompatible With the

Structure of Colorado’s Campaign Finance Regime

In addition to finding no license in the constitutional or statutory text,

CEW’s argument for the judicial invention of a heretofore unrecognized

organization—essentially, a quasi-independent expenditure committee—is

inconsistent with the broader regulatory structure, which encapsulates a clear

delineation between independent expenditure committees and other entities that



18

remain subject to contribution limitations. If adopted, CEW’s argument would

upend the carefully crafted regulatory regime and engender numerous interpretive

puzzles that would carry courts inexorably farther and farther away from the

constitutional and statutory texts. See People v. Cross, 127 P.3d 71, 74 (Colo.

2006) (“[W]e must give effect to the ordinary meaning of the language and read

the provisions as a whole, construing each consistently and in harmony with the

overall statutory design, if possible.”).

Various provisions of the Fair Campaign Practices Act and its implementing

regulations directly distinguish between independent expenditure committees and

other types of political organizations. CEW’s argument—which necessarily entails

devising a novel intermediate classification for independent expenditure

committees established by a political party—leaves unanswered whether and to

what extent CORE is or is not treated as an independent expenditure committee for

other regulatory and disclosure purposes.

For example, C.R.S. § 1-45-108(2.5) requires all committees other than

independent expenditure committees to file trigger reports with elections officials

upon receiving contributions of $1,000 or more within 30 days of the primary or

general. It remains entirely unclear whether importing the contribution limits

applicable to political parties (as CEW advocates) would render CORE subject to



19

this reporting requirement. In addition, C.R.S. § 1-45-108(3) and C.R.S. § 1-45-

107.5(3) impose similar but different registration requirements for independent

expenditure committees relative to other types of organizations, which in turn

raises the question of which registration rubric governs CORE.

Furthermore, Article XXVIII, § 5 and 8 CCR 1505-6, Rule 5.1 prescribe

detailed disclosure and disclaimer mandates specifically for “independent

expenditures.” CEW’s argument, however, appears to presuppose that

independent expenditure committees established by political parties inherently are

not “independent” of the party, which presents the question of whether their

expenditures are deemed “independent expenditures” for reporting purposes. The

fact that CEW seems to implicitly concede that CORE qualifies as an “independent

expenditure committee” within the literal meaning of the statutory term further

confounds the analysis, and aptly illustrates the logical and doctrinal contradictions

that pervade CEW’s arguments.

CEW’s inability to reconcile its theory with any reasonable construction of

the controlling legal texts underscores that its argument fundamentally is for the

judicial redesign of the statutory and regulatory scheme to accommodate CEW’s

disapprobation of CORE. Even if it were consonant with the First Amendment

(and it is not), CEW’s desire may be redressed only by the General Assembly in



20

the form of statutory amendments; such a remedy is not for the courts to provide.

See People v. Diaz , 2015 CO 28, ¶ 15 (“[I]n interpreting a statute, we must accept

the General Assembly's choice of language and not add or imply words that simply

are not there…we refuse the defendant's invitation to venture into legislative

territory.” (internal quotation omitted)).

III. The Establishment of Independent Expenditure Committees by Political

Parties Is Consistent with Article XXVIII of the Colorado Constitution

In a paragraph that reads more like an assertion than an argument CEW

contends that, if the governing statutes permit political parties to establish

independent expenditure committees not subject to contribution limits (as they do),

they “contradict” the source and amount restrictions imposed by Art. XXVIII, § 3.

Opening Brief at 14. CEW is mistaken. Independent expenditure committees are

never mentioned in Article XXVIII, § 3; they are the creature of a later enacted

statute, C.R.S. § 1-45-107.5, the general validity of which is undisputed. CEW’s

argument that Article XXVIII, § 3 countenances the existence of independent

expenditure committees generally but implicitly imposes contribution limits only

on independent expenditure committees established by political parties simply

finds no warrant in the constitutional text.4

4 To be sure, Article XXVIII mentions “independent expenditures,” but onlyin the context of acknowledging that such independent expenditures are generally



21

To the extent CEW’s argument relies on what it apprehends to be an

amorphous underlying intent animating Article XXVIII, § 3, it likewise is

unavailing. Indeed, the only provision of Article XXVIII, § 3 that directly

addresses independent expenditures prohibits labor organizations and most

corporations from engaging in them, a proscription the Colorado Supreme Court

agreed violated the federal Constitution in light of Citizens United . See In re

Interrogatories Propounded by Governor Ritter, Jr., Concerning Effect of Citizens

United v. Fed. Election Comm'n, 558 U.S. ---- (2010) on Certain Provisions of

Article XXIII of Constitution of State, 227 P.3d 892, 894 (Colo. 2010) (“To the

extent that section 3(4) of article XXVIII of the Colorado Constitution makes it

unlawful for a corporation or labor organization to make expenditures expressly

advocating the election or defeat of a candidate, it violates the dictates of the First

Amendment of the United States Constitution.”). While the remaining facets of

Article XXVIII, § 3 are valid, the illustrative point is that—to the extent the

(invalidated) provision embodies some overarching conception what sorts of

entities should be engaging in independent expenditures beyond its (again,

unconstitutional) prohibition against labor unions and corporations—it is likely

permissible. See Colo. Const., art. XXVIII, §§ 2(9) and 5. Independentexpenditure committees, as a separate organ for raising, spending and disclosingfunds related to political activity are simply not mentioned.



22

inconsistent with federal jurisprudence regarding the protected status of

independent expenditures. To the extent the Court detects a potential incongruence

between the original understanding of independent expenditures encapsulated in

Art. XXVIII, § 3 and regnant Supreme Court precedent, this possible discrepancy

counsels in favor of a narrow construction of the state constitutional provision to

avoid a potential conflict with its federal counterpart.

In sum, nothing in the plain text of Article XXVIII, § 3 prohibits C.R.S. § 1-

45-107.5’s authorization of independent expenditure committees established by

political parties; the inquiry thus should be at an end.

IV. The District Court’s Finding that CORE is Independent of CRP Is

Amply Supported by the Record

The district court’s factual finding that CORE operates as an organization

separate and district from CRP—thus rendering its expenditures “independent” of

CRP—is well supported and should not be disturbed on appeal. As discussed

below, the Standing Rules prescribe detailed policies and firewalls that ensure that

CORE’s activities and operations are not coordinated in any respect with CRP or

any candidate.

While CEW fixates on several items in the Standing Rules that it maintains

threaten CORE’s independence, a closer examination of those provisions in their

proper context reveals that they are wholly consistent with CORE’s robust anti-



23

coordination regime. In short, CEW’s argument can be condensed to speculation

that certain verbiage in the Standing Rules might someday be manipulated to

facilitate coordination; such unsupported ruminations are insufficient to upend the

district court’s well-considered factual finding that CORE operates independently

of CRP and candidates.

A. CORE Does Not Coordinate Its Expenditures with CRP or

Candidates

As a preliminary matter, CEW contends that “it was not necessary for Ethics

Watch to prove that the Party would direct specific expenditures made by its

independent expenditure committee. It is sufficient that the Party controls the

independent expenditure committee in general.” Opening Brief at 18. Simply put,

this is an inaccurate statement of the law. The definitional hallmark of an

independent expenditure committee is its sponsorship of “independent

expenditures.” C.R.S. § 1-45-103(11.5). The legal definition of an “independent

expenditure” is in turn tethered to the presence or absence of coordination in

connection with that particular disbursement. See 8 CCR 1505-6, Rule 1.4.2.5

5 Even if CORE did coordinate its expenditures with CRP, it is not clear thatthere is legal significance to coordinating an expenditure with a political partyunless done on behalf of a candidate for public office. Although Rule 1.4.2defines the term “coordination” by reference to both candidates and parties, theColorado Constitution’s definition of “independent expenditure” provides that an“independent expenditure” loses its independent status only if it is “controlled by



24

That the locus of any coordination analysis is expenditure-specific imparts

symmetry to the regulatory scheme. The legal significance of a coordinated

expenditure is that its particular value is imputed as a contribution to the specific

candidate or party with whom it is coordinated.

Indeed, the federal campaign finance regulatory scheme is substantially

similar in this respect. The Federal Election Commission (“FEC”) has long

insisted that to state a viable coordination claim, a complainant must identify a

specific communication or expenditure that is alleged to have been coordinated.

See, e.g., MUR 5869 (In re Montana Education Association-Montana Federation of

Teachers) Factual & Legal Analysis at 6 (dismissing complaint, noting that despite

generalized allegations of coordination, “[t]he complaint neither provides nor

identifies any communications made by [labor union] that would meet one or more

of the content standards” for a coordinated communication); MUR 6540 (In re

Rick Santorum), Statement of Reasons of Commissioners McGahn and Hunter at

or coordinated with a candidate or candidate’s agent.” Colo. Const., art. XXVIII, §2(9) (emphasis added). While Section 5 of Article XXVIII provides that

expenditures “on behalf of a candidate for public office that are coordinated withor controlled by the candidate or the candidate’s agent, or political party” lose theirindependent status, independent expenditures not made on behalf of a candidate for

public office but coordinated with a political party appear to remain independentunder the Colorado Constitution. Id., § 5(3)(emphasis added). Because thedistrict court correctly found that CORE and CRP do not coordinate, however, theCourt need not address this interpretive question.



25

22-23 (supporting dismissal of complaint that presented generalized suspicion of

coordination but “fail[ed] to identify any of these alleged in-kind contributions

with any specificity”).

B. CORE Does Not and May Not Coordinate with CRP or

Candidates In Any Respect

Regardless of whether the proper reference point is particular expenditures

or its operations as a whole, CORE undoubtedly is independent of CRP.

Importantly, as the district court concluded, the Standing Rules contain a panoply

of safeguards that secure a comprehensive and durable separation between CORE

and the party organization. First, CORE is governed by an Executive Director and

Management Committee, none of whom may be affiliated in any way with the

CRP. R. 80 [Rule 6]. More fundamentally, the Standing Rules specifically

foreclose all avenues of coordination enumerated in 8 CCR 1505-6, Rule 1.4.

Standing Rule 5 constructs a robust firewall that explicitly directs that “[t]he

management or development of any of the plans, projects, activities, or

expenditures of the IEC will be conducted independently” of any candidate or

political party. R. 80. Further, the Executive Director and Management

Committee are strictly prohibited from “consulting with or soliciting or accepting

any direction from any officer, agent or committee of any political party committee

affiliated with the Colorado Republican Committee,” and CRP officers, agents and



26

affiliates likewise may not make any “requests or suggestions” to CORE in

connection with its operations and activities. R. 81 [Rule 11].

To buttress these safeguards, the Standing Rules further provide that all

operational plans and significant expenditures must be specifically approved by the

independent Management Committee ( see R. 79 [Rule 4]), and prohibit the

Executive Director and Management Committee from participating in the selection

or nomination of Republican candidates. R. 80 [Rule 8]. Recognizing that

overlapping personnel may give rise to coordination, see 8 CCR 1505-6, Rule

1.4.2(b), CORE and CRP also will not share common consultants or vendors. R.

81 [Rule 13].

C. CEW Relies Solely on Unsupported Speculation of Future

Coordination

There is no evidence whatsoever that either CORE or CRP has ever deviated

from the strictures imposed by the Standing Rules; CEW’s speculation that the

Standing Rules’ safeguards may be circumvented or weakened in the future is

insufficient to sustain a finding of coordination between CRP and CORE. See

generally FEC MUR 5943 (In re Californians for Equal Representation) Factual &

Legal Analysis at 6 (dismissing complaint premised on general averments of

coordination, explaining that “unwarranted legal conclusions from asserted facts,

or mere speculation, will not be accepted as true, and ‘[s]uch speculative charges,



27

especially when accompanied by direct refutation, do not form an adequate basis to

find reason to believe that a violation of [campaign finance laws] has occurred.’”

(internal citation omitted)); MUR 6059 (In re Sean Parnell for Congress, et al.)

Factual & Legal Analysis at 5 (dismissing complaint after finding that it “does not

contain specific allegations as to” coordination, but rather rested solely on the

assumption that coordination occurred because candidate had met with the

independent expenditure committee); MUR 5754 (In re MoveOn.org Voter Fund)

Factual & Legal Analysis Regarding Alleged Coordination at 3-4 (concluding that

the independent expenditure committee’s alleged meetings with Democratic Party

officials and the candidate’s attendance at events sponsored by the committee do

“not provide a connection” between those contacts and actual coordination).

CEW fixates on several provisions in the Standing Rules that it contends

demonstrate CORE’s lack of independence from the CRP and/or candidates. A

closer examination of these provisions, however, reveals that CEW’s argument

does not withstand scrutiny.

1. The CRP Chairman’s Limited Role Does Not Undermine

the Independence of CORE’s Expenditures

Standing Rule 3 provides that the CRP Chairman may remove CORE’s

Executive Director of a member of the Management Committee “for cause, such as

fraud or malfeasance, upon the recommendation of a majority of the remaining



28

members of the management committee.” R. 79. As a preliminary matter, the

mere fact that an officer of a political party is affiliated with or involved in some

manner with an independent expenditure committee does not undermine the

latter’s independence. See MUR 5440 (In re New Democrat Network, et al.),

Factual & Legal Analysis at 12 (rejecting notion that Democratic National

Convention Chairman’s simultaneous position as “advisor” to PAC necessarily

rendered the PAC’s communications coordinated with the DNC); see also N.Y.

Progress and Protection PAC v. Walsh, 17 F. Supp. 3d 319, 322 (S.D.N.Y. 2014)

(the fact that “candidate's close friends, former employees, and other allies”

operated PAC did not affect its status as an independent committee, noting that

such “tenuous connections hardly rise to the level of coordination—and certainly

not to the level of quid pro quo corruption,” and reflects a reality “inherent in

politics”).

Further, the State Chairman’s role is narrow and highly circumscribed.

First, any removal must be a consequence of the director’s fraud, malfeasance or

other legal or ethical wrongdoing; Rule 3 plainly does not permit strategic

disagreements or political considerations to serve as a predicate for a director’s

termination. Also, the Chairman’s removal power is dependent upon the condition

precedent of the recommendation of the Management Committee, which is



29

composed entirely of individuals who are not affiliated in any way with CRP. R.

80 [Rules 6 and 7]. CEW surmises that the provision in theory could be

manipulated to exert control over CORE’s operations and activities, but there is no

evidence that this has occurred or ever will occur. Mere conjectures constructed

on an attenuated chain of hypotheticals simply cannot sustain a finding that the

Chairman’s limited removal power renders CORE not independent of CRP.

2. Limits on the Scope of CORE’s Mission Are BothAppropriate and Legally Required

Second, CEW cites a clause in Rule 12 that provides that CORE’s activities

will “support and influence the election of Republican candidates for public office

or an office in a political organization at the state or local level ONLY.” R. 81.

CEW counters that “a truly independent committee would be free to spend money

on behalf of any state candidate regardless of partisan affiliation.” Opening Brief

at 16. Establishing general parameters on the types of candidates CORE will

support, however, is not a nefarious effort to confine its activities but rather is an

express requirement of Colorado law. Specifically, 8 CCR 1505-6, Rule 8.1.2

mandates that an independent expenditure committee must in its registration

“identify the types of candidates being supported or opposed, including party

affiliation and office(s) sought or public policy position(s).” Under CEW’s logic—

which appears to be that limiting the committee’s support only to Republican



30

candidates vitiates its independence—any independent expenditure committee

complying with Rule 8.1.2 is no longer “independent” of the candidates and/or

parties it supports, an untenable conclusion.

Indeed, independent expenditure committees routinely cabin their missions

to promoting only candidates of a specific political party. For example, the

registration statement of the Colorado Hispanic Republicans IEC reports that the

organization will only “support Republicans for Colorado statewide office…who

either are Hispanic or take positions that are supportive of the Hispanic

community.”6 Likewise, the Senate Majority Fund limits its activities to

supporting “Republican candidates for State Senate,” while the Fair Share Action

independent expenditure committee has committed to support only “Democratic

candidates for Governor and other offices.” CEW proffers no legal basis

whatsoever for the notion that an independent expenditure committee’s exclusive

support of a specific political party or candidate renders its expenditures inherently

coordinated.

6 Independent expenditure committees’ registration statements are publicrecords published on the Secretary of State’s website, and accordingly may be

judicially noticed. See In re Interrogatory Propounded by Governor Roy Romeron House Bill 91S-1005, 814 P.2d 875, 880 (Colo. 1991) (“[T]his court may take

judicial notice of matters of public record and common knowledge.”).



31

Further, CEW’s quoted excerpt tellingly omits the rest of the relevant

sentence, i.e., CORE will “support and influence the election of Republican

candidates for public office or an office in a political organization at the state or

local level ONLY and is prohibited from accepting any contributions or

making any expenditures that refer to any candidate for federal office, or are

designed or intended to influence the election of any candidate for federal

office” (emphasis added). Read in context, Rule 12 is aimed primarily at averting

the regulatory and accounting complications that would ensue from supporting

both federal and state candidates. See, e.g., 11 C.F.R. § 104.20 (imposing FEC

reporting requirements on persons making electioneering communications in

connection with federal elections).

In the same vein, CEW invokes Rule 18, which provides that CORE “will

abide by the requirement of pre-primary neutrality set forth” in the CRP bylaws.

This high-level description of CORE’s purpose is no more constricting than Rule

8.1.2’s requirement that every independent expenditure committee declare the

candidates and/or parties it will support, and in no way enervates CORE’s legal

and functional independence.



32

3. The Standing Rules’ Cross-Reference to the CRP Bylaws Is

Irrelevant to the Independence of CORE’s Expenditures

Finally, Rule 19—which provides that the Standing Rules will yield to the

bylaws of the CRP and/or federal and state law in the event of a conflict—simply

delineates a hierarchy of authority for procedural and organizational issues. R. 82.

Nothing in that provision even indirectly affects CORE’s budgetary and

operational decisions and activities. CEW speculates that the CRP bylaws

someday could be manipulated to serve as a proxy for exerting control over CORE,

but there is no evidence whatsoever in the record that this has ever occurred or is

likely to happen.7

Ultimately, CEW’s arguments are founded not in any factual demonstration

that CRP and CORE have ever coordinated or will coordinate their expenditures.

Rather, CEW relies on a series of imagined hypotheticals positing how the

Standing Rules might be manipulated or abused at some point in the future to

undermine CORE’s autonomy. If the mere theoretical possibility of coordination

were sufficient to defeat an organization’s independent status, then no person or

entity would ever be secure in their First Amendment right to make unlimited

7 CRP’s ability to solicit funds for CORE from third party donors likewisedoes not implicate any facet of the regulatory definition of “coordination,” whichfocuses on the existence and nature of communications between an independentexpenditure committee and a political party or candidate. See 8 CCR 1505-6, Rule1.4.2.



33

independent expenditures, and the legal concept of an independent expenditure

committee effectively becomes a nullity.

Furthermore, even if CORE or one of its vendors or directors ever does

coordinate with CRP, Colorado law already furnishes remedies for excessive or

unreported in-kind contributions; an individual or the Secretary of State may

initiate an enforcement proceeding and appropriate penalties will be assessed. See

Art. XXVIII, §§ 9, 10; see also Republican Party of N.M. v. King , 741 F.3d 1089,

1103 (10th Cir. 2013) (“If New Mexico believes that there is improper

coordination between a PAC and a state or local political party, then it could bring

an enforcement action. But the record…does not disclose any unlawful

coordination….”).

In short, the district court’s factual finding that CORE is independent of

CRP is amply supported by the record and should be affirmed.

V. CRP’s Right to Establish an Independent Expenditure Committee Is

Protected by the First Amendment

Application of the plain statutory text—in conjunction with the district

court’s well-supported finding that CORE is operationally independent of CRP—

compels the conclusion that CORE is an “independent expenditure committee”

entitled to accept unlimited contributions from any source, and avoids potential

discord between Colorado’s campaign finance laws and the federal Constitution.



34

See People v. Jaso, 2014 COA 131, ¶ 10 (“We must construe statutes to avoid

constitutional conflicts if possible.”).

To the extent consideration of underlying federal constitutional issues

becomes necessary, however, federal courts have consistently held that all

independent expenditure organizations—including those established by and

maintaining ties with political parties—possess a First Amendment right to accept

contributions without restriction. See Republican Party of N.M. v. King , 741 F.3d

1089 (10th Cir. 2013).

A. Limits on Contributions to Independent Expenditure

Organizations Are Per Se Unconstitutional

If CEW is correct that Article XXVIII and/or the governing statutes

implicitly subject CORE to the contribution and source limits applicable to

political parties, such restrictions are not closely drawn to advance any important

governmental interest, and thus are violative of the First Amendment. Although

limits on amounts that can be contributed to a candidate or organization do not

directly constrain speech, they nevertheless constitute a substantive imposition on

associational liberty and thus warrant scrutiny that, while not strict, is still

“rigorous.” See Buckley v. Valeo, 424 U.S. 1, 29 (1976). As recently distilled by

the Supreme Court, the operative standard is whether a contribution limit advances

“a sufficiently important interest and employs means closely drawn to avoid



35

unnecessary abridgement of associational freedoms.” McCutcheon v. Fed.

Election Comm’n, 134 S. Ct. 1434, 1444 (2014). The nexus tethering the

contribution restriction to the governmental objective it ostensibly serves must be

“not necessarily perfect, but reasonable….[and] narrowly tailored.” Id.

The Supreme Court “has identified only one legitimate governmental

interest for restricting campaign finances: preventing corruption or the appearance

of corruption.” Id. at 1450. Precisely because independent expenditures

necessarily are the product of the autonomous actions and decisions of third parties

unencumbered by candidate directives or input, the Supreme Court has declared

that “independent expenditures, including those made by corporations, do not give

rise to corruption or the appearance of corruption.” Citizens United , 558 U.S. at

357; see also Buckley, 424 U.S. at 47.

A necessary corollary of Citizens United is that contributions to

organizations that engage only in independent expenditures—such as CORE—

likewise intrinsically do not implicate any state interest in preventing actual or

apparent quid pro quo corruption. See King , 741 F.3d at 1097 (“As every other

circuit to consider the issue has recognized, quid pro quo corruption no longer

justifies restrictions on uncoordinated spending for independent expenditure-only

entities, and the absence of a corruption interest breaks any justification for



36

restrictions on contributions for that purpose.”); SpeechNow.org v. Fed. Election

Comm’n, 599 F.3d 686, 694 (D.C. Cir. 2010) (“In light of the [Supreme] Court's

holding as a matter of law that independent expenditures do not corrupt or create

the appearance of quid pro quo corruption, contributions to groups that make only

independent expenditures also cannot corrupt or create the appearance of

corruption.”); Wis. Right to Life State Political Action Comm. v. Barland , 664 F.3d

139, 155 (7th Cir. 2011); Texans for Free Enter. v. Tex. Ethics Comm’n, 732 F.3d

535, 538 (5th Cir. 2013); Long Beach Area Chamber of Commerce v. City of Long

Beach, 603 F.3d 684, 698–99 (9th Cir. 2010).

B. CORE’s Limited Relationship with CRP Does Not Render CORE

A Political Party

As discussed supra Section II, CORE does not qualify as a “political party”

as defined as a regulatory concept in Article XXVIII, § 2(13) of the Colorado

Constitution. More fundamentally, however, CORE’s actual and functional

independence from the CRP carries significant constitutional implications, and

fatally undermines CEW’s reliance on Supreme Court precedents pertaining to

limits on contributions to political parties themselves.

CEW devotes considerable space to constructing and demolishing a straw

man argument concerning the constitutionality of contribution limits governing

political parties. In particular, CEW relies heavily on the Supreme Court’s



37

decisions in Federal Election Comm’n v. Colorado Republican Federal Campaign

Comm., 533 U.S. 431 (2001) (“Colorado II ”) and McConnell v. Federal Election

Comm’n, 540 U.S. 93 (2003), which affirmed the constitutional validity of limits

on contributions to political parties and the federal ban on so-called “soft money”

(i.e., funds donated to political parties free of source and dollar limits that

ultimately were used to benefit candidates), respectively. Those cases have no

bearing on the question here for the simple yet pivotal reason that CORE is not a

political party. As described at length supra, CORE is an entity separate and

distinct from CRP, and possesses an organizational infrastructure carefully crafted

to forestall coordination and ensure that its strategic and operational decisions are

free from control or influence by candidates and political parties. See N. Carolina

Right to Life, Inc. v. Leake, 525 F.3d 274, 294 n.8 (4th Cir. 2008) (“North Carolina

also argues that NCRL–FIPE is not actually an independent expenditure committee

because it is ‘closely intertwined’ with NCRL and NCRL–PAC. However, while

NCRL–FIPE does share staff and facilities with its sister and parent entities, it is

independent as a matter of law.”).

CEW contends that the District of Columbia District Court’s decision in

Republican National Comm. v. Federal Election Comm’n, 698 F. Supp. 2d 150

(D.C.C. 2010), is “on point,” see Opening Brief at 21, but that case merely



38

affirmed that McConnell countenances limits on amounts a political party itself

may accept as “soft money.” Similarly, CEW makes much of the fact that the

Court in Colorado II held that political parties may be subjected to contribution

limits irrespective of the particular purpose for which the funds are used. The

Court’s conclusion, however, merely reflects a pragmatic recognition that it may

be unfeasible to devise separate contribution limit schemes for a single, unitary

entity performing variegated functions depending on how any given donated dollar

is used. Such reasoning is inapposite here; CORE is structurally and legally

separate from the CRP and engages exclusively in independent expenditures;

unlike political parties, it does not conjoin independent activities with other

electioneering operations, such as candidate-coordinated expenditures or

contributions.

In this vein, the Tenth Circuit’s opinion in King forecloses CEW’s argument.

There, the court affirmed the preliminary enjoining of New Mexico’s statutory

contribution limit scheme as applied to political committees that made only

independent expenditures. Importantly, one of the plaintiffs was a PAC that was

“organized by” the Republican Party of New Mexico and whose treasurer

simultaneously served as chairman of a county party organization. Like CORE,

however, the PAC’s operations were conducted independently of the party. See



39

741 F.3d at 1103. While acknowledging that soft money bans to political parties

themselves may remain constitutionally intact, the court found that “overlapping

leadership” with a political party did not the defeat the PAC’s status as an

independent entity or its concomitant right to accept unlimited contributions, given

the absence of any evidence of actual coordination between the party and the PAC.

The court added that “the mere fact that [PACs] are closely related to political

parties does not affect the analysis regarding their ability to make independent

expenditures.” Id. at 1102 & n.12.8

Notably, CORE’s Standing Rules implement an even more robust separation

from the party apparatus than was the case in King . Neither the Executive Director

nor any Management Committee is permitted to hold any office or position within

the CRP organization during his or her tenure (R. 80 [Rule 6]), and CORE

personnel are strictly prohibited from communicating non-public information with

the state party or any affiliate “at the county, district, or local level” concerning

8 The court suggested that the analysis may differ for PACs that are formallyaffiliated with or controlled by a political party, noting “that would raise a separateissue—coordination.” 741 F.3d at 1103. Read in context, this passage in King

makes clear that the operative question is not the structural intricacies of a PAC’sinternal organization or ties to a political party, but rather the existence of actualcoordination. Stated differently, whether a PAC is formally affiliated with a

political party or merely maintains unofficial ties carries no per se legalsignificance; the focal point is coordination. Where, as here, there is no evidenceof coordination between a political party and a related independent expenditurecommittee, the latter is entitled to accept unlimited contributions from any source.



40

campaign strategy, plans, projects, activities, or needs. R. 81 [Rule 11]. If the

PAC in King was sufficiently independent to avail itself of the right to accept

unlimited contributions, then the same conclusion necessarily is compelled as to

CORE.

In short, King repudiated precisely the mode of argument CEW proffers

here, namely, conflating a legally and operationally independent entity with a

political party organization in an effort to subject it to contribution limits. As the

King court explained, a political party’s initial sponsorship of a political committee

and the existence of some ongoing ties does not defeat the latter’s independence;

the analytical lodestar is the existence or absence of coordination. When, as here, a

committee conducts its operations and activities independently of political parties

and candidates, it retains its First Amendment right to accept contributions free of

source and amount limitations.

C. Limitations on Contributions to Political Parties for the Sole

Purpose of Making Independent Expenditures Are Likely

Unconstitutional

As discussed above, limitations on contributions to independent expenditure

committees—even those that were established by and retain some ties to a political

parties—are per se unconstitutional. To the extent it is necessary to reach the

constitutional issue at all, the inquiry thus is at an end. It should be noted,



41

however, that the Supreme Court has expressly held that political parties have the

same First Amendment prerogative to make unlimited independent expenditures.

See Colo. Republican Fed. Campaign Comm. v. Fed. Election Comm’n, 518 U.S.

604, 616 (1996) (“Colorado I ”) (“The independent expression of a political party’s

views is ‘core’ First Amendment activity no less than is the independent

expression of individuals, candidates, or other political committees.”).

In this vein, Citizens United and its progeny signal that even political parties

themselves possess a First Amendment right to accept contributions in unlimited

amounts for the specific purpose of making independent expenditures.9 Thus, even

a hypothetical congruence of identities between CRP and CORE would not affect

either entity’s First Amendment right to accept unlimited contributions for funds

that will be used exclusively for independent expenditures, i.e., expenditures that

are not coordinated with candidates. Indeed, while declining to issue a preliminary

injunction, the D.C. District Court held that a challenge to federal party

contribution limits as applied to funds allotted solely to political parties’

independent expenditures presented a “substantial” constitutional question, and

9 While Citizens United noted that party contribution limits as a general matterremain valid, see 558 U.S. at 361, it did not address the specific question ofrestrictions that attach to funds used only for independent expenditures.



42

certified it to the en banc District of Columbia Circuit. See Rufer v. Fed. Election

Comm’n, --- F. Supp. 3d ---, 2014 WL 4076053, at *5 (D.C.C. Aug. 19, 2014).

CEW reasons that Citizens United did not implicate political parties and thus

is not relevant, but this facile dismissal of that case obscures its significant

repercussions for the constitutional framework governing campaign finance laws,

and is consistent with CEW’s larger effort to essentially turn back the clock and

revive regulatory burdens invalidated by Citizens United . To the contrary, the

reasoning of Citizens United severely undermines McConnell in at least two

substantial respects.

First, integral to McConnell ’s ratification of the soft money ban was its

premise that corruption extends far beyond direct quid pro quo dealings and

encompasses “ ‘undue influence on an officeholder’s judgment, and the appearance

of such influence.’” 540 U.S. at 150 (internal citations omitted). In the same vein,

the Court’s holding relied heavily on an evidentiary record illustrating extensive

collaboration between soft money donors, political parties and benefitted

candidates. The “crabbed view” of corruption as entailing only quid pro quo

transactions that the McConnell Court criticized, however, now counts a majority

of Justices among its adherents. Implicitly repudiating a key premise of

McConnell , Citizens United and subsequent decisions have asserted that



43

“[s]pending large sums of money in connection with elections, but not in

connection with an effort to control the exercise of an officeholder’s official duties,

does not give rise to such quid pro quo corruption. Nor does the possibility that an

individual who spends large sums may garner ‘influence over or access to’ elected

officials or political parties.” McCutcheon v. Fed. Election Comm’n, 134 S. Ct.

1434, 1450-51 (2014) (internal citations omitted).

Further, the implementation of pervasive structural safeguards that ensures

the actual independence of party independent expenditures renders much of the

McConnell Court’s underlying reasoning and evidentiary record inapposite.

Notably, while concluding that it remained bound by McConnell , the RNC court

agreed that the evolution of the Court’s conception of corruption and the existence

of robust firewalls to segregate independent expenditure funds and forestall

coordination called McConnell ’s viability into question. See 698 F. Supp. 2d at

158, 160.

Second, Citizens United ’s renewed emphasis on the constitutional

imperative of permitting unfettered independent expenditures has impelled the

regulatory structure to accommodate organizations’ desire to couple independent

expenditure activity with direct candidate support. See, e.g., Carey v. Fed.

Election Comm’n, 791 F. Supp. 2d 121, 131 (D.D.C. 2011) (recognizing “hybrid”



44

political committee and holding that it could accept unlimited contributions if such

funds were placed in a separate bank account designated only for independent

expenditures); Emily’s List v. Fed. Election Comm’n, 581 F.3d 1 (D.C. Cir. 2009)

(holding that political committee that made contributions to candidates has First

Amendment right to accept unlimited contributions, provided those funds are used

only for independent expenditures). Although the holdings of both Carey and

Emily’s List were limited to non-connected political committees and did not extend

to political parties, their reasoning encapsulates the emerging judicial consensus

that funds allotted to truly independent expenditure activities may be collected in

unlimited amounts from any source. Indeed, at least one federal district court has

expressly held that “to the extent they are making independent expenditures,

political parties may—just like other independent expenditure committees—solicit

more than $500 from each contributor. Moreover, they may accept contributions

from individuals and non-individuals.” Thalheimer v. City of San Diego, 2012 WL

177414, at *21 (S.D. Cal. Jan. 20, 2012).

Ultimately, however, it is unnecessary for the Court to venture onto this

evolving First Amendment terrain. See Bd. of Directors, Metro Wastewater

Reclamation Dist. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 105 P.3d 653,

656 (Colo. 2005) (“[W]e are guided by the rubric that the legislature intends a



45

statute to be constitutional and we should construe it in a manner avoiding

constitutional infirmity, if possible.”). As discussed above, the plain text of Article

XXVIII and the Fair Campaign Practices Act permit CRP to establish an

independent expenditure committee that is entitled to accept unlimited

contributions from any source.

CONCLUSION

For the foregoing reasons, the district court’s grant of summary judgment in

CRP’s favor should be affirmed.

Dated June 10, 2015

Brownstein Hyatt Farber Schreck, LLP

/s/ Christopher O. Murray

Christopher O. Murray, #39340

Attorney for Plaintiff/Appellee Colorado

Republican Party



CERTIFICATE OF SERVICE

I certify that on June 10, 2015, I electronically filed a true and correct copy

of the foregoing ANSWER BRIEF with the Clerk of Court via the Colorado

ICCES program which will send notification of such filing and service upon the

following counsel of record:

Colorado Ethics WatchLuisAngel Toro

Margaret G. Perl1630 Welton Street, Suite 415Denver, CO 80202

Colorado Attorney General’s OfficeState Services SectionMatthew D. GroveSueanna Johnson1300 Broadway, 6th Floor Denver, CO 80203

Colorado Republican PartyHale Westfall, LLPAllan Lemont HalePeter Krunholz1600 Stout Street, Suite 500Denver, CO 80202

/s/ Paulette M. Chesson

Paulette M. Chesson, Paralegal

Brownstein Answer Brief June 2015.pdf

Documents

Transcript of Brownstein Answer Brief June 2015.pdf