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Colorado > Colorado Electoral Code > Fair Campaign Practices Act

1-45-102. Legislative declaration

Overview of Statute

The people of Colorado find that large campaign contributions to political candidates allow contributors and interest groups to have a disproportionate level of influence over the political process. Thus, the public is best served by limiting campaign contributions, and by a full and timely disclosure of campaign contributions.

Statute

The people of the state of Colorado hereby find and declare that large campaign contributions to political candidates allow wealthy contributors and special interest groups to exercise a disproportionate level of influence over the political process; that large campaign contributions create the potential for corruption and the appearance of corruption; that the rising costs of campaigning for political office prevent qualified citizens from running for political office; and that the interests of the public are best served by limiting campaign contributions, establishing campaign spending limits, full and timely disclosure of campaign contributions, and strong enforcement of campaign laws.

Source: Initiated 96: Entire article R&RE, effective upon proclamation of the Governor, January 15, 1997. Initiated 2012, (Amendment 65): Entire section amended, L. 2013, p. 3301, effective upon proclamation of the Governor, January 1, 2013.

Editor’s note: (1) This section is similar to former § 1-45-102 as it existed prior to 1996. (2) This section was amended by initiative in 2012.(2) This section was amended by initiative in 2012. The vote count on the measure at the general election held November 6, 2012, was as follows:

FOR:1,276,432; AGAINST:988,542.

ANNOTATIONS

Christopher Jackson, Campaign Finance Law in Colorado, 46-JUN Colo. Law. 35 (2017).

Holding that public interest did not support preliminary injunction invalidating Colorado’s allegedly discriminatory campaign disclosure laws that purportedly violated political advocacy corporation’s First Amendment right to free speech by exempting traditional print media and broadcasters from disclosing their donors but requiring corporation to disclose its donors for film concerning electoral candidates, since public had interest in transparency in political speech. Citizens United v. Gessler, 2014, 69 F.Supp.3d 1148, reversed 773 F.3d 200.

Holding that the balance of equities did not favor preliminary injunction invalidating Colorado’s allegedly discriminatory campaign disclosure laws that purportedly violated political advocacy corporation’s First Amendment right to free speech by exempting traditional print media and broadcasters from disclosing their donors but requiring corporation to disclose its donors for film concerning electoral candidates, since enjoining enforcement of disclosure regime would harm entire electorate of Colorado who might not be able to make informed choices on election day. Citizens United v. Gessler, 2014, 69 F.Supp.3d 1148, reversed 773 F.3d 200.

Holding that a political advocacy corporation would not likely suffer irreparable harm by disclosing donors for film concerning electoral candidates, in absence of preliminary injunction invalidating Colorado’s allegedly discriminatory campaign disclosure laws that purportedly violated First Amendment freedom of speech by exempting traditional print media and broadcasters from disclosing their donors but requiring corporation to disclose its donors. Citizens United v. Gessler, 2014, 69 F.Supp.3d 1148, reversed 773 F.3d 200.

Holding thata political advocacy corporation seeking a preliminary injunction invalidating Colorado’s campaign disclosure laws did not have substantial likelihood of success on merits of First Amendment free speech claim that laws were discriminatory, as applied, by effectively exempting traditional print media and broadcasters from disclosing their donors but requiring corporation to disclose its donors for film concerning electoral candidates, since corporation failed to show there was no substantial relation between disclosure regime and government’s sufficiently important interest in maintaining informed electorate. Citizens United v. Gessler, 2014, 69 F.Supp.3d 1148, reversed 773 F.3d 200.

Holding that the political advocacy corporation seeking preliminary injunction invalidating Colorado’s campaign disclosure laws did not have substantial likelihood of success on merits of First Amendment free speech claim that laws were facially discriminatory by effectively exempting traditional print media and broadcasters from disclosing their donors but requiring other sources of election information to disclose their donors, since corporation failed to show there was no substantial relation between disclosure regime and government’s sufficiently important interest in maintaining informed electorate. Citizens United v. Gessler, 2014, 69 F.Supp.3d 1148, reversed 773 F.3d 200.

Holding that exacting scrutiny, rather than strict scrutiny, applied to political advocacy corporation’s free speech challenge to Colorado’s campaign disclosure laws, that allegedly impermissibly discriminated by effectively exempting traditional print media and broadcasters from disclosing their donors but required corporation to disclose its donors for making film concerning electoral candidates; disclosure regime did not discriminate based on content or viewpoint, as regime differentiated based on form of speech rather than identity of speaker. Citizens United v. Gessler, 2014, 69 F.Supp.3d 1148, reversed 773 F.3d 200.

Holding that the evidence that people and groups that made campaign contributions exerted pressure on candidates, that contributors had more access to candidates, and that public was concerned about large contributions, was sufficient to establish that there was existence of corruption or appearance of corruption in political process, as required for state to have compelling governmental interest to regulate political speech through Fair Campaign Practices Act (FCPA). Citizens for Responsible Government State Political Action Committee v. Buckley, 1999, 60 F.Supp.2d 1066, reversed in part, vacated in part 236 F.3d 1174.

Holding that consideration of impermissible factors in enacting Fair Campaign Practices Act (FCPA) did not render Act unconstitutional regulation of political speech, where government also considered legitimate interests in preventing corruption and avoiding appearance of corruption. Citizens for Responsible Government State Political Action Committee v. Buckley, 1999, 60 F.Supp.2d 1066, reversed in part, vacated in part 236 F.3d 1174.

2.Purpose

Holding that beliefs that there was “too much money in politics,” that “ever-increasing growth in contributions and spending was corrupting the process in Colorado,” that special interests had too much influence on politics in Colorado, and that contribution limits would prevent wasteful speech and reduce overall candidate spending were impermissible justifications for enacting Fair Campaign Practices Act (FCPA) restricting political speech. Citizens for Responsible Government State Political Action Committee v. Buckley, 1999, 60 F.Supp.2d 1066, reversed in part, vacated in part 236 F.3d 1174.

Free speech and association, campaign spending limits, party expenditures coordinated with a candidate, see Federal Election Com’n v. Colorado Republican Federal Campaign Committee, 2001, 121 S.Ct. 2351, 533 U.S. 431, 150 L.Ed.2d 461.

Freedom of speech, elections, campaign restrictions on corporate electioneering, issue advertisements, see Federal Election Com’n v. Wisconsin Right To Life, Inc., 2007, 127 S.Ct. 2652, 551 U.S. 449, 168 L.Ed.2d 329.

Freedom of speech, elections, individual and party contribution limits, self-financed candidates, elevated contribution limits for non-self-financed candidates, disclosure requirements, see Davis v. Federal Election Com’n, U.S.Dist.Col.2008, 128 S.Ct. 2759, 554 U.S. 724, 171 L.Ed.2d 737.

 

Annotation: October 12, 2016 3:33 am

Colorado is unique in that its state constitution allows “any person” to file a campaign finance complaint. For an article on why this is a bad thing, encouraging lawsuits to harass political opponents, see http://www.denverpost.com/2016/08/23/colorados-campaign-finance-bullies-threaten-free-speech/.

Definition [Corporation]

A domestic corporation incorporated under and subject to the “Colorado Business Corporation Act”, articles 101 to 117 of title 7, C.R.S., a domestic nonprofit corporation incorporated under and subject to the “Colorado Revised Nonprofit Corporation Act”, articles 121 to 137 of title 7, C.R.S., or any corporation incorporated under and subject to the laws of another state. For purposes of this article, “domestic corporation” shall mean a for-profit or nonprofit corporation incorporated under and subject to the laws of this state, and “nondomestic corporation” shall mean a corporation incorporated under and subject to the laws of another state or foreign country. For purposes of this article, “corporation” includes the parent of a subsidiary corporation or any subsidiaries of the parent, as applicable. C.R.S. § 1-45-103.

Definition [Expenditure]

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 or supporting or opposing a ballot issue or ballot question. An expenditure is made when the actual spending occurs or when there is a contractual agreement requiring such spending and the amount is determined.

(b) “Expenditure” does not include:

(I) Any news articles, editorial endorsements, opinion or commentary writings, or letters to the editor printed in a newspaper, magazine or other periodical not owned or controlled by a candidate or political party;

(II) Any editorial endorsements or opinions aired by a broadcast facility not owned or controlled by a candidate or political party;

(III) Spending by persons, other than political parties, political committees and small donor committees, in the regular course and scope of their business or payments by a membership organization for any communication solely to members and their families;

(IV) Any transfer by a membership organization of a portion of a member’s dues to a small donor committee or political committee sponsored by such membership organization; or payments made by a corporation or labor organization for the costs of establishing, administering, or soliciting funds from its own employees or members for a political committee or small donor committee.

Section 2(8) of article XXVIII of the state constitution.

Definition [Election day]

The date either established by law or determined by the governing body of the political subdivision conducting the election, to be the final day on which all ballots are determined to be due, and the date from which all other dates in this article are set.C.R.S. § 1-7.5-103.

Definition [Contribution]

(a) (I) The payment, loan, pledge, gift, or advance of money, or guarantee of a loan, made to any candidate committee, issue committee, political committee, small donor committee, or political party;

(II) Any payment made to a third party for the benefit of any candidate committee, issue committee, political committee, small donor committee, or political party;

(III) The fair market value of any gift or loan of property made to any candidate committee, issue committee, political committee, small donor committee or political party;

(IV) Anything of value given, directly or indirectly, to a candidate for the purpose of promoting the candidate’s nomination, retention, recall, or election.

(b) “Contribution” does not include services provided without compensation by individuals volunteering their time on behalf of a candidate, candidate committee, political committee, small donor committee, issue committee, or political party; a transfer by a membership organization of a portion of a member’s dues to a small donor committee or political committee sponsored by such membership organization; or payments by a corporation or labor organization for the costs of establishing, administering, and soliciting funds from its own employees or members for a political committee or small donor committee.

Section 2(5) of article XXVIII of the state constitution.

 

C.R.S. § 1-45-103 further adds:

(b) “Contribution” includes, with regard to a contribution for which the contributor receives compensation or consideration of less than equivalent value to such contribution, including, but not limited to, items of perishable or nonpermanent value, goods, supplies, services, or participation in a campaign-related event, an amount equal to the value in excess of such compensation or consideration as determined by the candidate committee.

(c) “Contribution” also includes:

(I) Any payment, loan, pledge, gift, advance of money, or guarantee of a loan made to any political organization;

(II) Any payment made to a third party on behalf of and with the knowledge of the political organization; or

(III) The fair market value of any gift or loan of property made to any political organization.

C.R.S. § 1-45-103.

Definition [State]

A state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. C.R.S. § 1-8.3-102.

Definition [Section]

A bound compilation of initiative forms approved by the secretary of state, which shall include pages that contain the warning required by section 1-40-110 (1), the ballot title, the abstract required by section 1-40-110 (3), and a copy of the proposed measure; succeeding pages that contain the warning, the ballot title, and ruled lines numbered consecutively for registered electors’ signatures; and a final page that contains the affidavit required by section 1-40-111 (2). Each section shall be consecutively prenumbered by the petitioner prior to circulation.

Definition [Election]

Any election under the “Uniform Election Code of 1992” or the “Colorado Municipal Election Code of 1965”, article 10 of title 31, C.R.S. C.R.S. § 1-7.5-103.

Definition [Spending]

Funds expended influencing or attempting to influence the selection, nomination, election, or appointment of any individual to any state or local public office in the state and includes, without limitation, any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value by any political organization, a contract, promise, or agreement to expend funds made or entered into by any political organization, or any electioneering communication by any political organization. C.R.S. § 1-45-103.

Definition [Committee]

The committee of signers described in section 1-12-108(2). C.R.S. § 1-12-100.5.

Definition [Candidate]

Any person who seeks nomination or election to any state or local public office that is to be voted on in this state at any primary election, general election, school district election, special district election, or municipal election. “Candidate” also includes a judge or justice of any court of record who seeks to be retained in office pursuant to the provisions of section 25 of article VI. A person is a candidate for election if the person has publicly announced an intention to seek election to public office or retention of a judicial office and thereafter has received a contribution or made an expenditure in support of the candidacy. A person remains a candidate for purposes of this article so long as the candidate maintains a registered candidate committee. A person who maintains a candidate committee after an election cycle, but who has not publicly announced an intention to seek election to public office in the next or any subsequent election cycle, is a candidate for purposes of this article. Section 2(2) of article XXVIII of the state constitution.

Cases

colorado Cases

Case Name: League of Women Voters v. Davidson

Citation: 23 P.3d 1266 (Colo. App. 2001)

Year: 2001

Case URL: https://www.ravellaw.com/opinions/c086848dae3ee69a41e10497b8b5f2fd

Case Summary: Holding that the fact that being a political committee was not a stated purpose in a nonprofit corporation's articles of incorporation did not mean that the corporation was not a political committee under the Fair Campaign Practices Act; for a political advertisement to constitute “express advocacy,” advertisement must expressly advocate election or defeat of a clearly identified candidate; and leaflet that contained photographs of Republican candidates, showed their political positions, and requested “Please make sure to Vote!” was not express advocacy.

Case Name: Common Sense Alliance v. Davidson

Citation: 995 P.2d 748 (Colo. 2000)

Year: 2000

Case URL: https://www.ravellaw.com/opinions/8a4020d8e28ab375146a087a715fa803

Case Summary: Holding that Fair Campaign Practices Act covers only “issue committees” that were formed for the purpose of supporting or opposing a ballot initiative, so organizations formed for another purpose that later commit to a ballot issue are not within the statute.

Case Name: Colo. for Family Values v. Meyer

Citation: 936 P.2d 631 (Colo. App. 1997)

Year: 1997

Case URL: https://www.ravellaw.com/opinions/8d9e1273ee07f3df08d6bdec4eeb41c1

Case Summary: Holding that initiative that has gone through the title setting process but has not been formally certified for the ballot is still an “issue” under the Campaign Reform Act.

Out-of-State Cases

Federal Cases

Case Name: Citizens United v. Gessler

Citation: 773 F.3d 200 (10th Cir. 2014)

Federal Circuit Court: 10th Circuit Court

Year: 2014

Case URL: https://www.ravellaw.com/opinions/64a08559e50749015e0a3efcb4ce2e3d

Case Summary: Holding that political advocacy group alleging that Colorado's campaign practices laws violated its First Amendment rights was likely to succeed on the merits.

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