On October 2nd, the Center for Competitive Politics posted a press release about the questions that Judge Kane is sending to the Colorado Supreme Court for CSG’s campaign finance lawsuit. It’s very interesting news, because until very recently, I didn’t even know that this could be part of the legal process. (Look, it’s federalism in action! Nifty!)

CONTACT: Sarah Lee, Communications Director, 770.598.7961

ALEXANDRIA, Va. – A federal judge today issued an order seeking clarification by the Colorado Supreme Court of the state’s campaign finance laws. Senior Judge John L. Kane of the United States Court for the District of Colorado asked the state Supreme Court to “provide clear guidance… as to the scope and meaning” of provisions that have been challenged under the First Amendment to the US Constitution

Judge Kane’s order was made in connection with a case brought by the Center for Competitive Politics (CCP) on behalf of the Coalition for Secular Government (CSG). The case, over which Judge Kane presides, is Coalition for Secular Government v. Gessler, No. 12-cv-1708.

The judge’s order noted that 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 caselaw from Colorado courts.”

CSG alleges that, even though it plans to raise no more than $3,500–nearly all of which will go toward updating and disseminating a public policy paper–the state constitution appears to demand that CSG register as an issue committee if its papers take a position on ballot measures. Such registration would force CSG to maintain several new types of records, file periodic reports, turn over the names and addresses of contributors who donate as little as $20 toward financing the policy paper, and risk substantial fines should it err in its public filings.

Judge Kane certified four questions. These include:

  • Does the Colorado Constitution treat money spent on a policy paper, including one that suggests how the reader should vote on a ballot initiative, as the equivalent of money spent on political ads?
  • Does the state constitution entitle policy papers distributed over the internet to be treated in the same way as newspaper and magazine editorials for purposes of campaign finance law?
  • In light of a federal decision declaring certain groups too small to be regulated by the state of Colorado, what is the monetary trigger for an issue committee under the state constitution? Is it the roughly-$1,000 mentioned in the federal opinion? The $3,500 contemplated by CSG? The $200 mentioned in the constitution itself? Or another number altogether?
While the Colorado Supreme Court is not required to answer Judge Kane’s questions, doing so would provide some welcome guidance on these important questions.

“For years, organizations in Colorado have been unsure how to comply with Colorado’s campaign finance rules, or have been subject to politically-motivated complaints for making minor errors,” CCP Legal Director Allen Dickerson said. “Some choose not to speak at all in the face of this situation. The Colorado Supreme Court now has the option of bringing a measure of predictability to some of the state constitution’s more difficult provisions.”

Judge Kane’s order, which includes a brief description of the case, may be found here.

Here are the four questions certified in their technical language:

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 S2(10)(a)(II) of the Colorado Constitution?

I’ll be very interested to see how the Colorado Supreme Court rules on these questions — and then what Judge Kane says about that. I’m excited by the prospect of at least clarifying Colorado campaign finance law, let alone striking down some of its most burdensome elements.

Also, I’ll have some news about the forthcoming updates to Ari Armstrong’s and my 2010 paper — The “Personhood” Movement Is Anti-Life — soon. Although “personhood” won’t be on the ballot in Colorado due insufficient signatures, the movement has grown dramatically in influence over the past year, as seen in the GOP primary. Hence, Ari and I are determined to update the policy paper to reflect that.

Alas, my being so sick last week blew apart our plans. We’ve made a new plan, and it’s a better plan, I think. You can expect some announcements about that later this week. Just know that, once again, we will need your support to make it happen!


Ari Armstrong published an excellent op-ed in Sunday’s Denver Post against the campaign finance measure on Colorado’s ballot, Amendment 65. The whole op-ed is worth reading, but I particularly enjoyed his argument that restrictions on campaign spending are restrictions on speech. He writes:

Voters must observe that limiting campaign spending means limiting spending on speech.

You have no right of free speech if you cannot spend your resources how you want on speech. With the possible exception of shouting over panhandlers on a street corner, every form of speech requires the expenditure of resources.

To write for an audience, you need computers, Internet connections, copy machines, books, or newspapers. To speak, you need microphones, podcasts, film equipment, radio signals, or television transmissions. Spending money on speech is part of speaking. Controlling spending on speech is controlling speech itself.

Yes! That’s exactly why free speech depends on property rights — and the “dictators of the proletariat” understood that. The Soviet Union didn’t ban the free press directly in its early years: it simply nationalized all printing presses.

Ari then observes:

The very idea that government should attempt, through force, to “level the playing field” in the realm of communication and ideas is pernicious. It is the government’s proper job to protect each individual’s right to speak freely, whether alone or as part of a group, not to forcibly silence some voices so that others face less competition.

Certainly, I’ve felt that heavy burden in speaking against Colorado’s “personhood” amendments in 2008 and 2010, as I described in detail in my December 2011 testimony. No advocate of campaign finance regulations has ever directly addressed the huge contradiction between their stated goals with campaign finance regulations and my experience as an ordinary citizen attempting to speak out. It’s infuriating.

In addition to this excellent op-ed, Ari gave this short speech on Amendment 65 at a local forum on the election:

Ari deserves the thanks of every Colorado resident for his work advocating our rights to speak freely!


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.


The Coalition for Secular Government’s case challenging Colorado’s campaign finance laws will be heard in Federal Court tomorrow. The courtroom is open to the public. So if you’d like to attend, you’re welcome to do so.

The case will start at 9:30 am, and it will likely last the day. It will be held in the Alfred A. Arraj United States Courthouse (901 19th St. in Denver). It’s being heard by Judge Kane in Room A802.

I’m really excited by the potential of this case. I’m a bit nervous too, as I’ve never testified in court before. Happily, my job is simple: I just need to tell the truth about CSG, and leave the heavy lifting of the legal arguments to my fabulous attorney from the Center for Competitive Politics.

Update: Never mind! The trial has been postponed for complicated (but good) reasons that I’ll explain later.


According to Colorado’s Secretary of State, the proposed “personhood” amendment won’t make the 2012 ballot due to lack of signatures — and that decision is final. The Denver Post reports:

The Colorado secretary of state’s office said Tuesday the proposed anti-abortion “personhood” amendment will not be on the 2012 ballot — no matter the outcome of proponents’ planned legal action to prove they collected enough voter signatures.

The ballot certification deadline was Monday. Even if a judge rules personhood sponsors’ petition was sufficient, the measure would have to wait for the 2014 general election, secretary of state spokesman Andrew Cole told The Post Tuesday.

However, that’s not the end of the story. Personhood USA takes a different view:

Personhood USA founder Keith Mason said Tuesday supporters have a 30-day window to take legal action challenging Secretary of State Scott Gessler’s Aug. 29 determination that the Personhood Amendment failed to make the ballot — falling short by 3,859 signatures.

Petitioners collected 82,246 valid signatures of the 86,105 required, according to state officials. “We have until Sept. 28 to file our lawsuit. And the more we look, line by line, the more confident we are we have enough signatures,” Mason said. “We have recovered thousands of signatures.”

Personhood USA seems serious in their desire to make a legal challenge, as seen in this September 14th email to supporters:

We need your help! Last month we told you that volunteers worked tirelessly to collect over 112,000 signatures to get the Personhood Amendment on the ballot in Colorado. But the Secretary of State in Colorado has denied our request by claiming that we are 3,700 signatures short of qualifying for the ballot. This a purely political act, as many of the signatures discarded were actually valid signatures!

We must file a court challenge within 30 days, and we fully intend to do so. But we need your financial help! In order to continue our fight for the unborn and protect all innocent life we need to raise over $50,000 to combat the political machine in Colorado. …

They might win that legal challenge — or they might lose it. Basically, right now nobody knows whether “personhood” will be on the ballot in 2012 or not.

That’s hugely frustrating for me. All plans to update Ari Armstrong’s and my 2010 policy paper The “Personhood” Movement Is Anti-Life are up in the air until this matter is resolved. Right now, I’m not sure what kind of revisions we’ll want to make, because we may want to talk about the new language of the 2012 ballot measure or not.

Also, I don’t know whether I’ll want to raise money for those revisions or not, as I did in 2010. I’m not willing to slog through the burdens and risks of reporting again, as would be required if “personhood” makes the ballot, unless, that is, the court rules in our favor next week. In that case, I won’t have to report, even if “personhood” is on the ballot. That would be awesome.

Gah! The uncertainty is just killing me. These matters will be resolved soon, I know, but time is running short!

Appeals Court Rules Against Gessler

 Posted by on 3 September 2012 at 2:00 pm  Campaign Finance, Free Speech
Sep 032012

Court rules against Gessler in campaign change:

An appeals court says Secretary of State Scott Gessler overstepped his authority by raising a financial disclosure threshold for political groups and that the change violated state law. The Colorado Court of Appeals issued the ruling Thursday, affirming a lower court’s decision. At issue was a change from Gessler’s office to raise the financial disclosure threshold for political groups from $200 to $5,000.

Opponents argue that raising the threshold would make it easier for political groups to avoid disclosing financial interests for ballot initiatives. Gessler maintained that his aim was to bring state campaign-finance laws in line with a federal appeals court ruling.

A Gessler spokesman says the state is leaving itself open to expensive constitutional challenges, but that the secretary has not decided whether to appeal the latest decision.

The opinion is available as a PDF. The main issue seems to have been whether Scott Gessler had the authority as Secretary of State to change the threshold for campaign finance disclosures for issue committees, not the rule itself.

However, the court did seem to read the “Parker North” (Sampson v. Buescher) case as some kind of isolated decision, without implications for the constitutionality of the current $200 threshold. The court wrote, in part:

We do not agree with the Secretary, in any event, that Sampson created a gap in the law, triggering his obligation to promulgate a rule. The Tenth Circuit panel declined to address the facial challenge to Colorado’s campaign finance laws, and only held that the application of these laws to the plaintiffs in that case unconstitutionally burdened their freedom of association. See Sampson, 625 F.3d at 1249. Consequently, Sampson provides persuasive authority with regard to future applications of the campaign finance laws in a similar context, but does not render these laws completely inoperative. See Sanger, 148 P.3d at 410­11.

That’s wrong, I think, and I hope that gets relitigated. In addition, I very much hope that the Colorado legislature will change the law on the threshold for reporting for issue committees — to some level much higher than Gessler’s $5000 limit.


The Center for Competitive Politics just posted a press release about their filing of a preliminary injunction in CSG’s campaign finance lawsuit.  If we win, I won’t have to file campaign finance reports while litigation is pending.  (Hallelujah!)

DATELINE: Tuesday, August 14, 2012

CONTACT: Sarah Lee, Communications Director, 770.598.7961

ALEXANDRIA, Va. – The Center for Competitive Politics’ (CCP) legal team filed a motion for preliminary injunction late last night on behalf of a Colorado group, Coalition for Secular Government (CSG). CCP asks that a federal judge in Colorado enjoin Colorado Secretary of State Scott Gessler refrain from forcing CSG to register as an “issue committee” until their constitutional claims can be heard. Otherwise, CSG will be unable to speak until a potentially lengthy litigation has run its course.

Last month, CCP filed its lawsuit on behalf of CSG in the United States District Court for the District of Colorado, questioning whether Colorado can force small educational groups to register with the state before writing or publishing philosophical and policy analysis that mentions a state ballot initiative.

The case stems from the efforts of Colorado resident Diana Hsieh. Hsieh, who holds a Ph.D. in philosophy, organized the non-profit CSG together with her friend Ari Armstrong 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 Colorado’s complex campaign finance laws.

CCP Legal Director Allen Dickerson hopes the motion for injunction in the case will free the group from the administrative burden of registering as a political group, allowing them to speak freely until their case can be fully considered by the federal court.

“Given the strength of its case, we hope CSG will be allowed to speak unfettered until, and if, a court determines that they must register as an issue committee,” he said. “It makes little sense to force them to register – and limit their speech accordingly – only to turn around many months later and tell them they had a constitutional right to speak freely all along.”

No hearing on the motion has yet been set.

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.

In related news, a federal judge recently struck down some of Secretary of State Scott Gessler’s campaign finance rule changes. The Denver Post reports:

A judge on Friday invalidated some campaign finance rules changed by Colorado Secretary of State Scott Gessler. Denver District Judge J. Eric Elliff upheld one rule defining what can be considered electioneering communications. But he invalidated a rule that would have capped penalties for some campaign finance violations. He also rejected rules affecting who must file campaign finance reports. …

One of the invalidated rules said groups only had to file campaign finance reports if at least 30 percent of their spending was for or against a ballot issue. Elliff said the rule would have required issue committees with very little income, most of which is spent on election-related matters, to file reports while groups with huge budgets could spend big on election matters without having to file reports if the expenditures were less than 30 percent of their total spending.

I didn’t like that 30% rule: it was poorly-constructed so as to disproportionately burden small groups. So I’m not sad to see that struck down, even though the result is that now we don’t have any clear guidance on what counts as the “major purpose” that triggers filing obligations for issue committees like CSG.  That’s frustrating.

I’m deeply unhappy that the rules capping fines have been struck down, as unlimited $50 per day per violation fines are downright obscene.  What sane person is willing to wade through pages of confusing and complex campaign finance regulations and then attempt to file detailed reports on expenditures and contributions over $20 — with the threat of thousands upon thousands of dollars of fines for innocent errors looming over them?


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.


Recently, I learned that the Institute for Justice (IJ) has taken the case of paleo blogger Steve Cooksey. He’s in trouble with North Carolina regulators who wish to suppress his freedom of speech. I couldn’t be more delighted, as the case combines two of my great loves: paleo and free speech.

IJ made an awesome video summarizing the case:

For more information on the case, see this page. The press release says:

Can the government throw you in jail for offering advice on the Internet about what people should buy at the grocery store?

That is exactly the claim made by the North Carolina Board of Dietetics/Nutrition. And that is why today diabetic blogger Steve Cooksey of Stanley, N.C. has teamed up with the Institute for Justice (IJ) to file a major First Amendment lawsuit against the State Board in federal court.

In December 2011, Steve Cooksey started a Dear Abby-style advice column on his blog to answer reader questions. In January 2012, the North Carolina Board of Dietetics/Nutrition informed Steve that he could not give readers personal advice on diet, whether for free or for compensation, because doing so constituted the unlicensed, and thus criminal, practice of dietetics.

The State Board also told Steve that his private emails and telephone calls with friends and readers were illegal. The Board also ordered him to shut down his life-coaching service. Violating the North Carolina licensing law can lead to fines, court orders to be silent and even jail.

“You don’t need the government’s permission to give someone ordinary advice,” said IJ Senior Attorney Jeff Rowes. “North Carolina cannot require Steve to be a state-licensed dietitian any more than it can require Dear Abbey to be a state-licensed psychologist.”

This lawsuit seeks to answer one of the most important unresolved questions in First Amendment law: When does the government’s power to license occupations trump free speech?

“Advice is protected speech,” said IJ attorney Paul Sherman. “Just because the government can license certain types of expert professional advice doesn’t mean the government can license every type of advice.”

Steve Cooksey began offering dietary advice because he is concerned about America’s diabetes epidemic. Over 25 million Americans have diabetes, including approximately 800,000 in North Carolina. The human and financial toll is staggering. Diabetes is now a leading cause of stroke, blindness, kidney failure requiring transplantation, and amputation. Because diabetes is a condition of elevated blood sugar, Steve advocates eating foods that keep blood sugar low.

After being diagnosed with Type II diabetes, Steve did research and learned that the high-carb/low-fat diet his doctors recommended to him may not be best for diabetics because carbohydrates raise blood sugar. He adopted the low-carb “Paleolithic” diet of our Stone Age ancestors: fresh veggies, meats, eggs and fish, but no sugars, processed foods or agricultural starches.

Steve lost 78 pounds, freed himself of drugs and doctors, normalized his blood sugar and feels healthier than ever. He believes a low-carb diet is the simplest, cheapest and most effective way to treat diabetes. This goes against the conventional wisdom promoted by licensed dietitians, which advocate a high-carb diet and drugs to lower blood sugar.

“Diabetics need access to information from all points of view, including those that challenge the conventional wisdom,” said IJ client Steve Cooksey. “We cannot let government licensing boards censor the Internet and chill our speech.”

For more on today’s lawsuit, visit www.ij.org/PaleoSpeech. Founded in 1991, the Virginia-based Institute for Justice is a national public interest law firm that fights for free speech and economic liberty nationwide.

This case has huge implications for every advocate of paleo and other non-standard diets. Yet the principle is broader: every person has a right to express and advocate his own views, even when that person is not licensed by the state.

If you want to contribute to Steve’s fight against these government censors, please support the Institute for Justice by a donation!

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