I’m delighted to report that my own Coalition for Secular Government was mentioned in a recent column in the Wall Street Journal: Bradley Smith: The Supreme Court and Ed Corsi’s Life of Political Crime. Here’s the relevant tidbit:

In Buckley v. Valeo (1976), and again in Federal Election Commission v. Massachusetts Citizens for Life (1986), the Supreme Court held that the regulatory requirements of operating a political action committee could not be imposed on groups that lacked the primary purpose of supporting or defeating political candidates in elections. But across the country, states are flouting that command, imposing rigid requirements on ordinary citizens who are trying to express their political opinions.

In Colorado, for example, a group of friends calling themselves the Coalition for Secular Government operate a website on which they posted a long policy paper on abortion and church-state relations. The paper concluded by urging Coloradans to vote “no” on a ballot measure. For that, the state says they must register as a political committee and report their activities, income and expenses.

The article begins with an even more egregious case than ours, and it’s well worth reading.

 

I’m thrilled and excited to announce that the Coalition for Secular Government’s lawsuit on campaign finance will be heard by the Colorado Supreme Court tomorrow at 10 am. The hearing will concern the four questions about the relevant law that our judge in federal court — Judge Kane — asked the Colorado Supreme Court to answer.

I’ll be there, of course. If you’d like to attend, the hearing will be at the Ralph L. Carr Judicial Center at 1300 Broadway, Denver on Wednesday, May 8th. The hearing starts at 10 am, but you might want to arrive a bit early, as it’s the first case of the day. It’s scheduled to last just 30 minutes.

If you’ve not followed the case, check out the following write-up from the Center for Competitive Politics, the legal advocacy non-profit that has made this challenge to Colorado’s speech-stifling campaign finance laws possible.

Colorado’s Opportunity to Protect First Amendment Rights
By Tyler Martinez

May the government ban the publication of books if they contain only one sentence of express advocacy, such as “Vote for Smith”?

At the oral argument for Citizens United v. FEC, the federal government argued that campaign finance laws could ban a corporation, presumably including book publishers, from producing a book with even one sentence of express advocacy. The government’s stance was so shocking that the U.S. Supreme Court ordered another set of briefings and arguments on that issue, and today we have the famous decision upholding the right of corporations to make independent expenditures.

This May, a similar question will be heard by the Colorado Supreme Court in Coalition for Secular Government v. Gessler. This case centers around a small nonprofit, run by Diana Hsieh, a doctor of philosophy, who wanted to discuss a secular understanding of the principles of life, liberty, and property. To do this, Dr. Hsieh formed a nonprofit corporation, which she named the Coalition for Secular Government (CSG). CSG commissioned a paper discussing its philosophy regarding human personhood, written by Dr. Hsieh and her friend Ari Armstrong. On behalf of CSG, Dr. Hsieh and Mr. Armstrong raised money from their friends to help pay for the costs of writing and publishing the paper. They also ran some Facebook ads and made flyers to let people know about the paper.

The paper is 32 pages long, with 176 endnotes. It makes philosophical arguments concerning the complex public policy debate surrounding the definition of personhood. The paper used a proposed Colorado ballot measure as a backdrop for its discussion on the issue. The paper concludes with a single sentence of express advocacy: “If you believe that ‘human life has value,’ the only moral choice is to vote against Amendment 62.”

This one sentence of express advocacy meant that CSG may be forced to register as a issue committee with the state of Colorado. The state’s own briefing in the case has admitted that, but for this single sentence, the paper would go entirely unregulated by the Colorado government. While Colorado does not ban books, it does demand burdensome reporting and disclosure. Registration requires reporting the names and addresses of people who give more than $20 to help a cause–even if it is free help with Web design by a family member. Registration also requires documenting which post office an organization uses, and from which Office Depot it purchases printer paper.

The costs of failing to file these extensive reports, or not filing properly, can be extreme. One day, Dr. Hsieh’s house flooded and she was a day late with CSG’s required report. She then faced a $50 per day fine. Fortunately, this fine was waived, but only after needing to plead with the Secretary of State’s office. Even normal, non-flood-related compliance with Colorado’s byzantine filing system frustrated Dr. Hsieh and left her in constant fear of fines or lawsuits, just because she wanted to weigh in with her philosophical views.

This is not the first time the registering and reporting burdens required of issue committees has come up in Colorado. In the 2010 case of Sampson v. Buescher, a small group of residents outside of Parker, Colorado, came together to fight being annexed into the City of Parker. These individuals had raised less than $1,000 for their cause when their opposition challenged the failure of the neighbors to register as an issue committee.

In assessing the homeowners’ challenge, the Tenth Circuit concluded that Colorado’s issue committee disclosure and reporting requirements “substantial[ly]” burdened the homeowners’ First Amendment rights. The court relied on Citizens United and held that: “[t]he First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day.”

Unfortunately, the state of Colorado failed to heed the Tenth Circuit, and CSG had to call the legal team at the Center for Competitive Politics (CCP) for help. The CCP legal team filed a complaint alleging that, even though CSG plans to raise no more than $3,500 for updating and publishing their public policy paper, the state of Colorado appears to demand that CSG register as an issue committee. Once registered, CSG will again face all of the burdens of reporting their friends and allies, naming where they bought envelopes, and facing lawsuits and fines from the state for making even the slightest mistake.

Interestingly, CSG’s case was initially brought before a federal court. But Colorado law is so ambiguous that the federal judge had to ask the Colorado Supreme Court just what the Colorado law means. As a result, CCP will be before the Colorado Supreme Court this May 8 arguing the merits of registering lengthy policy papers with only one sentence of express advocacy.

As the Citizens United Court noted, it does violence to freedom of speech when a citizen must hire an attorney just to be sure how to speak. Hopefully, the Colorado Supreme Court will agree with that principle.

For more, check out my prior blogging on campaign finance regulations.

 

This press release from the Center for Competitive PoliticsColorado Supreme Court to Rule on Federal Judge’s Questions — is awesome, awesome news for the Coalition for Secular Government’s challenge to Colorado’s campaign finance laws.

In an order received today, the Colorado Supreme Court agreed to a US District Court judge’s request to “provide clear guidance… as to the scope and meaning” of four unclear provisions of Colorado’s campaign finance laws that are the subject of litigation under the First Amendment to the US Constitution.

The request was made by Senior Judge John L. Kane of the United States Court for the District of Colorado in connection with a case brought by the Center for Competitive Politics (CCP) on behalf of the Coalition for Secular Government (CSG). Allen Dickerson, CCP’s Legal Director, said today he is “pleased that Colorado’s highest court will provide a definitive interpretation of key provisions in Colorado’s campaign finance laws and address the important constitutional issues raised in this case.”

The lawsuit challenges whether Colorado can force small educational groups to register with the state before expressing an opinion on or publishing an analysis of a ballot question. Because of vague state laws, confusion as to what constitutes political speech and what is covered under a press exemption, and a refusal by the state to abide by a federal court order, CSG has found it nearly impossible to carry out the activities of a small non-profit group without fear of running afoul of complex Colorado campaign finance laws.

Judge Kane asked the Colorado high court for the interpretation because the “lawsuit raises First Amendment challenges to several provisions of Colorado campaign finance law that remain undefined by the Colorado Constitution, Article XXVIII’s implementing legislation, or case law from Colorado courts.”

Judge Kane certified four questions, which the Colorado Supreme Court has now agreed to answer. The questions are as follows: 1. Is the policy paper published by the Coalition for Secular Government (CSG) in 2010 “express advocacy” under Art. XXVIII, S 2(8)(a) of the Colorado Constitution?

2. If the policy paper is express advocacy, does it qualify for the press exemption found at Art. XXVIII, S 2(8)(b)?

3. Is the policy paper a “written or broadcast communication” under S 1-45- 103(12)(b)(II)(B), C.R.S.? If not, did it become a “written or broadcast communication” when it was posted to CSG’s blog or Facebook page?

4. In light of Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010), what is the monetary trigger for Issue Committee status under Art. XXVIII S 2(10)(a)(II) of the Colorado Constitution?

A copy of the court order is available here. The case, over which Judge Kane presides, is Coalition for Secular Government v. Gessler, No. 12-cv-1708. The plaintiff’s brief to the Colorado Supreme Court is due December 3, 2012.

Once again, I cannot properly express my gratitude to Allen Dickerson and the rest of the staff at the Center for Competitive Politics for this legal challenge to Colorado’s campaign finance laws.

I’m not just grateful for the hope that I’ll never have to file campaign finance reports again — nor even for the hope of striking a solid blow for free speech in Colorado. I’m grateful because my participation in this case has enabled me to see that the rule of law, while not perfect, is a robust institution in America. As a result, I’ve become far more optimistic about the future over the past few months. I don’t share the post-election “Doom and Death Camps” so prevalent among advocates of free markets, for reasons that I explained in Sunday’s Radio Show. I’m glad of that, and I’m proud of that.

So if you’d like to assist in the efforts of the Center for Competitive Politics, you can donate here.

 

As I mentioned, the Coalition for Secular Government’s trial, scheduled for Friday, was postponed. Here’s Judge Kane’s order, as reported here:

Plaintiff’s requests for preliminary and permanent injunctive relief were consolidated and are set for a full-day trial/hearing tomorrow, Friday, September 21, 2012. Given the unlikelihood proponents of a ‘personhood’ amendment will salvaged for the Colorado state ballot in time for the 2012 election cycle, the impetus for the very expedited timeframe under which this case has been operating has relaxed enough to warrant the more thorough approach afforded by certifying certain important and threshold questions to the Colorado Supreme Court. Accordingly, tomorrow’s hearing is VACATED, to be reset at a later date.

That’s good news, on two counts.

First, the proposed “personhood” amendment will surely not make the ballot in 2012. If adequate numbers of signatures were indeed collected, the remedy will be that the measure appears automatically on the 2014 ballot. Hence, Ari Armstrong and I can raise and spend money for an updated version of our 2010 paper on the “personhood” movement without me filing those burdensome and intrusive campaign finance reports. Given the prominence of “personhood” in the GOP primary and Paul Ryan’s support “personhood,” I’m eager to update that policy paper. I’ll be announcing more about that soon.

Second, by not being on such a rushed schedule — and by having the Colorado Supreme Court answer some critical questions in advance — the case is likely to grapple in a more serious way with the serious constitutional questions raised by the suit. Obviously, that’s good news.

For a taste of the other work of the Center for Competitive Politics, see this Washington Examiner column by Allen Dickerson and Bradley Smith: Court ruling a boon to privacy, accuracy. If you’d like to donate to their efforts, you can do so here.

 

Sara Burnett blogged about my campaign finance lawsuit for the Denver Post yesterday. The post begins:

The Center for Competitive Politics has filed a federal lawsuit against Secretary of State Scott Gessler, saying Colorado’s campaign finance laws are overly burdensome and violate the First Amendment rights of small educational groups that want to weigh in on a ballot question.

It’s not the first lawsuit filed against Gessler over campaign finance rules. But unlike those cases, Gessler may find himself siding with the plaintiffs – at least philosophically – on parts of this one.

“I’m sympathetic to these small groups wanting to engage in their elections and it only further illustrates how screwed up our campaign finance laws are,” Gessler said in an emailed statement today.

Amen to that! Go read the whole thing.

 

I have some exciting news to share — and I’m particularly delighted to share it with you on Independence Day!

My fight against Colorado’s onerous campaign finance laws has been taken to a whole new level, thanks to the Center for Competitive Politics. They’re representing my organization, the Coalition for Secular Government, in a federal lawsuit challenging the application of Colorado’s campaign finance law to Ari Armstrong’s and my policy paper in defense of abortion rights. CCP is arguing that the onerous campaign finance regulations violate our First Amendment rights.

I couldn’t be more excited for this opportunity protect the right to speak freely on politics in Colorado.

Here’s CCP’s press release. You can expect more details to be posted on here on NoodleFood in upcoming weeks.

Colorado Group Files First Amendment Lawsuit

DATELINE: Monday, July 2, 2012

CONTACT: Sarah Lee, Communications Director, Center for Competitive Politics, 770.598.7961

ALEXANDRIA, Va. — The Center for Competitive Politics (CCP) legal team, led by Legal Director Allen Dickerson, today filed a lawsuit in the United States District Court for the District of Colorado on behalf of the Coalition for Secular Government (CSG). The question raised by the First Amendment lawsuit is whether Colorado can force small educational groups to register with the state before expressing an opinion on or publishing an analysis of a ballot question.

Colorado resident Diana Hsieh, a doctor of philosophy, organized the non-profit CSG together with her friend Ari ArmB in order to promote a secular understanding of individual rights, including freedom of conscience and the separation of church and state. Because of unconstitutionally vague state laws, confusion as to what constitutes political speech and what is covered under a press exemption, and a refusal by the state to abide by a federal court order, Hsieh and CSG have found it nearly impossible to carry out the activities of a small non-profit group without fear of running afoul of complex Colorado campaign finance laws.

“Ari and I simply wanted to discuss a Colorado ballot measure as a small part of our effort to educate people about our philosophy. Our goal has never been to defeat such measures; they would have lost just as badly without our policy papers,” Hsieh notes. “It’s frustrating that even our modest efforts are hampered by the Colorado campaign finance system. To avoid the risk of costly lawsuits and hefty fines, we must report minor purchases of office supplies and the names and addresses of small-dollar donors. Our experiences with Colorado’s system have been confusing and dispiriting. We’ve not abandoned our efforts, as most people would have done, but we’ve definitely scaled back our efforts. We shouldn’t have to register and file these meaningless reports with the State to speak on moral and political topics of public concern.”

Dickerson and the CCP legal team filed a complaint alleging that, even though Diana and CSG plan to raise no more than $3,500, nearly all of which will go toward updating and disseminating an expanded and updated copy of their public policy paper, the state of Colorado appears to demand that CSG register as an issue committee, with all the paperwork burdens and restrictions that status entails. Dickerson notes that this is unconstitutional under the First Amendment to the U.S. Constitution and burdensome, particularly for a small group seeking only to exercise their right to speak.

“No group that spends very little money, and whose principal product is a policy white paper, should need the state’s permission to speak,” said Dickerson. “Despite good intentions, Colorado’s voters approved laws with that unreasonable and unconstitutional result. We hope this suit will give the federal courts an opportunity to protect CSG and other vulnerable, grassroots speakers.”

The suit asks for a declaratory judgment and requests that the court hear CSG’s claims on an expedited basis.

A background paper on the lawsuit can be viewed here.

A copy of the complaint filed in the lawsuit can be viewed here.

The Center for Competitive Politics promotes and defends the First Amendment’s protection of political rights of speech, assembly, and petition. It is the only organization dedicated solely to protecting First Amendment political rights.

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