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February 05, 2016

Tenth Circuit Issues Major Disclosure Victory

By Stuart McPhail

In a major victory for campaign finance transparency, the Tenth Circuit joined a majority of U.S. circuit courts in upholding a law requiring the disclosure of contributors behind campaign advertisements.  Colorado Ethics Watch, an affiliate of CREW, submitted an amicus brief in the case, Independence Institute v. Williams, in support of the disclosure law. 

The Tenth Circuit upheld Colorado’s law requiring creators of “electioneering communications” to disclose the contributors behind the ads.  The Colorado law is similar to federal law and defines an electioneering communication as a radio or TV communication that unambiguously refers to a candidate, is aired within 60 daysof the election, and is targeted to the electorate. 

The challenge was brought by a group that sought to run an ad criticizing the Affordable Care Act and urging voters to support an audit of Colorado’s Health Benefit Exchange. The ad mentioned Colorado’s incumbent Democratic governor, who was then up for reelection, and asked viewers to call him and ask him to support an audit.  The ad would air shortly before the gubernatorial election. The group challenged the law, arguing that it was unconstitutional to require them to disclose the donors behind the ad because, while the ad mentioned the Colorado Governor and aired shortly before the election, the ad purportedly focused on public policy and not on the election. 

Looking to the Supreme Court’s discussion of disclosure laws in Citizens United, the Tenth Circuit noted that “[t]he logic of Citizens United is that advertisements that mention a candidate shortly before an election are deemed sufficiently campaign-related to implicate the government’s interests in disclosure.”  Accordingly, the Tenth Circuit rejected the plaintiff’s argument that an ad must do more than mention a candidate, but must somehow “reference[] a campaign” to trigger disclosure, finding that test would contradict Citizens United and would be impossible to apply.  The appellate court noted “[a]n advertisement purporting merely to discuss an issue, while incidentally mentioning a candidate, can nonetheless be construed as ‘relating to’ the candidate’s campaign.”

The Tenth Circuit’s holding is an important victory in ensuring transparency of campaign funds.  Employing the test suggested by the plaintiff would have opened a massive loophole in campaign disclosure that would have allowed groups to flood the airwaves with ads attacking or supporting candidates merely by avoiding some set of trigger words. Indeed, it would contradict the entire purpose of electioneering communication regulation.   As the Supreme Court recognized in McConnell v. FEC, regulation of electioneering communications was intended to fill a loophole left by previous campaign disclosure rules that were limited to “express advocacy” ads:  ads which must employ “magic words” like “vote for” or “vote against,” or that meet a highly restrictive test.  To ensure voters were properly informed about those funding ads that evaded such express terms but which nonetheless influenced elections, Congress enacted the federal electioneering communication law.  Though plaintiffs in Independence Institute challenged only the Colorado law, their challenge had the potential to undermine the federal law and to deny voters essential information.  The Tenth Circuit was right to reject that challenge.

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