COLORADO COURT OF APPEALS

Court Address: 2 East 14th Avenue

Denver, CO 80203
District Court, City and County of Denver
Honorable Robert L. McGahey Jr., Judge
Case No. 2014CV031851
______________________________________
Plaintiff/Appellee: COLORADO REPUBLICAN
PARTY
v.
Intervenor Defendant/Appellant: COLORADO
ETHICS WATCH

COURT USE ONLY

________________________

and
Case No. 14CA1945
Defendant/Appellee: WAYNE W. WILLIAMS, in his
official capacity as Colorado Secretary of State
_______________________________________
Attorneys for Appellant:
Luis Toro, #22093
Margaret Perl, #43106
1630 Welton Street, Suite 415
Denver, CO 80202
Telephone: 303-626-2100
Email: ltoro@coloradoforethics.org
pperl@coloradoforethics.org

OPENING BRIEF

TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
CERTIFICATE OF COMPLIANCE ...............................................................................................v
ISSUES PRESENTED FOR REVIEW ...........................................................................................1
I. STATEMENT OF THE CASE ....................................................................................................1
A.

Nature of the Case ................................................................................................................2

B.

Statement of Facts ................................................................................................................3

1. Colorado enacts campaign finance rules governing contributions to political parties and
independent expenditure committees. ......................................................................................3
2. The Party establishes an independent expenditure committee subject to political party
limits, dissolves it, then establishes a new independent committee for the purpose of
accepting contributions not subject to those limits...................................................................6

II. SUMMARY OF ARGUMENT ..................................................................................................6

III. ARGUMENT .............................................................................................................................8
A.

Standard of Review ..............................................................................................................8

B. The Statute Does Not Override the Colorado Constitutions Limits on Contributions to
Political Parties. ............................................................................................................................9
1. The Statute Must Be Read In Harmony with the Colorado Constitutions Contribution
Limits and Source Prohibitions For Political Parties. ..............................................................9
2. Alternatively, Senate Bill 10-203 Is Unconstitutional To The Extent It Purports to
Authorize Political Parties to Avoid Constitutional Contribution Restrictions......................14
C. The District Court Erroneously Concluded That the Partys Independent Expenditure
Committee Is Independent of The Party.. ..................................................................................14
D. The First Amendment Does Not Compel Colorado To Allow Unlimited Contributions To
Political Parties... ........................................................................................................................19
IV. CONCLUSION........................................................................................................................23
CERTIFICATE OF SERVICE ......................................................................................................24

ii

TABLE OF AUTHORITIES

CASES
Buckley v. Valeo, 424 U.S. 1, 26-27 (1976) --------------------------------------------- 20
Citizens United v. Fed. Election Commn, 558 U.S. 310 (2010) ------------------ 5, 21
City & County of Denver v. Indus. Claim Appeals Office, 107 P.3d 1019, 10201021 (Colo. App. 2004) ----------------------------------------------------------------- 10
Colorado Ethics Watch v. Clear The Bench Colorado, 2012 COA 42 ----------- 8, 10
Colorado Ethics Watch v. Senate Majority Fund, LLC, 2012 CO 12 --------------- 11
Colorado Republican Fed. Campaign Comm. v. Fed. Election Commn, 518 U.S.
604, 617-18 (1996) ----------------------------------------------------------- 4, 10, 13, 20
Fed. Election Commn v. Colorado Republican Fed. Campaign Comm., 533 U.S.
431 (2001) ---------------------------------------------------------------------- 4, 5, 10, 22
Huber v. Colo. Mining Ass'n, 264 P.3d 884, 889 (Colo. 2011)----------------------- 10
In re Interrogatories Propounded By Governor Bill Ritter, Jr., 227 P.3d 892 (Colo.
2010). --------------------------------------------------------------------------------------- 5
McConnell v. Fed. Election Commn, 540 U.S. 93 (2003)----------------------- 13, 20
McCutcheon v. Fed. Election Commn, 134 S. Ct. 1434 (2014) ---------------- 20, 22
P.F.P. Family Holdings, L.P. v. Stan Lee Media, Inc., 252 P.3d 1 (Colo. App.
2010) ---------------------------------------------------------------------------------------- 9
Republican Natl Comm. v. Federal Election Comn (In re Anh Cao), 619 F.3d
410, (5th Cir. 2010) ---------------------------------------------------------------------- 21
Republican Natl Comm., et al. v. Federal Election Commn, 698 F. Supp. 2d 150
(D.D.C 2010) ------------------------------------------------------------------------ 21, 22
Republican Natl Comm.et al. v. Federal Election Comn, 130 S.Ct. 3543 (2010) 22
Republican Party of N.M. v. King, 741 F.3d 1089, 1103 (10th Cir. 2013) --------- 18
Rufer v. Fed. Election Commn, No.14-cv-837, 2014 U.S. Dist. LEXIS 114762
(D.D.C. August 19, 2014) --------------------------------------------------------------- 19
Town of Telluride v. San Miguel Valley Corp., 185 P.3d 161 (Colo. 2008) -------- 14
Tulips Invs., LLC v. State ex rel. Suthers, 2015 CO 1 ---------------------------------- 8
STATUTES
C.R.S. 1-4-502(1) ------------------------------------------------------------------------ 12
C.R.S. 1-45-103(11.5) ----------------------------------------------------------- 5, 11, 12
C.R.S. 1-45-103.7 ------------------------------------------------------------------------ 11
C.R.S. 1-45-104 --------------------------------------------------------------------------- 6
iii

C.R.S. 1-45-107.5 --------------------------------------------------------------- 1, 2, 5, 10

C.R.S. 24-4-105(11) ---------------------------------------------------------------------- 7
RULES
C.A.R. 43(c)(1) ------------------------------------------------------------------------------ 2
REGULATIONS
8 C.C.R. 1505-6 (3.3) ---------------------------------------------------------------------- 11
8 C.C.R. 1505-6 (1.4) ----------------------------------------------------------------- 15, 18
8 C.C.R. 1505-6 (10.14) -------------------------------------------------------------------- 3
CONSTITUTIONAL PROVISIONS
Colo. Const. art. XXVIII, 2(9) ---------------------------------------------------------- 3
Colo. Const. art. XXVIII, 3 ---------------------------------------------------------- 1, 14
Colo. Const. art. XXVIII, 3(1) --------------------------------------------------------- 11
Colo. Const. art. XXVIII, 3(13) --------------------------------------------------------- 3
Colo. Const. art. XXVIII, 3(3) --------------------------------------------------- passim
Colo. Const. art. XXVIII, 3(4) --------------------------------------------------- passim
Colo. Const. art. XXVIII, 3(5) --------------------------------------------------------- 11
Colo. Const. art. XXVIII, 5(1) ---------------------------------------------------------- 4
Colo. Const. art. XXVIII, 5(3) ------------------------------------------------- 3, 15, 17

iv

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, I certify that:
The brief complies with C.A.R. 28(g).
It contains _______words.
X It does not exceed 30 pages.
The brief complies with C.A.R. 28(k).
X For the party raising the issue:
It contains under a separate heading (1) a concise statement of the
applicable standard of appellate review with citation to authority; and (2) a
citation to the precise location in the record (R.
, p. ), not to an entire
document, where the issue was raised and ruled on.
It contains, under a separate heading, a statement of whether such
party agrees with the opponents statements concerning the standard of
review and preservation for appeal, and if not, why not.
I acknowledge that my brief may be stricken if it fails to comply with any of the
requirements of C.A.R. 28 and C.A.R. 32.
/s/ Luis Toro
Luis Toro
Attorney for the Appellant
Colorado Ethics Watch

Appellant Colorado Ethics Watch, by its undersigned attorneys, respectfully

submits its opening brief:
I. ISSUES PRESENTED FOR REVIEW
A.

Whether the district court erred by ruling that the political party

contribution limits and source restrictions 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.
B.

If the district court did not err by interpreting Colorados independent

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

expenditure committee free from contribution limits and source restrictions,
whether the statute is unconstitutional as contrary to Colo. Const., art. XXVIII, 3.
C.

Whether the district court erred by ruling that the undisputed facts

established that the Colorado Republican Partys independent expenditure

committee is independent of the Party.
II. STATEMENT OF THE CASE
A. NATURE OF THE CASE
This case presents the question whether a political party may evade the
contribution limitations and prohibitions placed on parties by Colorado voters in
Colo. Const. art. XXVIII, 3 by establishing, operating and maintaining an
independent expenditure committee pursuant to C.R.S. 1-45-107.5.

This action was filed on May 8, 2014 by the Colorado Republican Party (the
Party) against the Colorado Secretary of State (the Secretary),1 seeking a
declaratory judgment that the Party could sponsor, maintain, and operate an
independent expenditure committee that would not be subject to the Colorado
Constitutions limitations on the amount of contributions to political parties or its
prohibition of direct corporate or labor union contributions to parties. The Partys
complaint did not allege the existence of an actual controversy between itself and
the Secretary; rather, it alleged that a declaratory judgment was needed because
without one Ethics Watch might sue the Party for violating campaign finance laws.
The Party and the Secretary consented to Ethics Watchs intervention in the case as
an additional defendant.
The Party filed a summary judgment motion, which Ethics Watch, but not
the Secretary, opposed. The district court entered summary judgment in favor of
the Party, reasoning that because C.R.S. 1-45-107.5 permits any person to
establish an independent expenditure committee, and because the evidence
purportedly showed that the Party does not control its independent expenditure
committee, the Party was entitled to raise money for that committee without regard
to the Colorado Constitutions political party contribution restrictions. This appeal

On January 13, 2015, Wayne W. Williams was sworn in as Colorado Secretary of

State. Pursuant to C.A.R. 43(c)(1), Williams should be substituted on the caption
for his predecessor, Scott Gessler.
1

followed.
B. STATEMENT OF FACTS
1. Colorado enacts campaign finance rules governing contributions to
political parties and independent expenditure committees.
In 2002, Colorado voters passed Amendment 27, which became Article
XXVIII of the Colorado Constitution. Article XXVIII creates a comprehensive
campaign and political finance system, including disclosure requirements,
contribution limits and source restrictions for candidates, political parties, and
other political actors. Pursuant to Section 3, a political party may only receive
contributions subject to certain dollar limitations. See Colo. Const. art. XXVIII,
3(3).2 In addition, political parties are absolutely prohibited from accepting
contributions of any amount from corporations and labor unions. See Colo. Const.
art. XXVIII, 3(4)(a).
Article XXVIII also includes provisions governing independent
expenditures, defined as spending for the purpose of expressly advocating for or
against candidates that is not controlled by or coordinated with a candidate or
political party. Colo. Const. art. XXVIII, 2(9), 5(4). If a political actor, e.g., a
political committee or political party, makes an independent expenditure, it is
required to file certain public reports with the spending information. See Colo.
2

These contribution limits have been increased from the 2002 levels established in
3(3) to keep pace with inflation. See Colo. Const. art. XXVIII, 3(13);
Campaign and Political Finance Rule 10.14, 8 C.C.R. 1505-6 (10.14).
3

Const. art. XXVIII, 5(1). As enacted by the voters of Colorado, corporations and
labor unions were banned from making independent expenditures outside of a
connected political committee or small donor committee subject to contribution
limits. Id. 3(4).
In the years immediately preceding the adoption of Article XXVIII, the
Party, through its federal campaign committee, challenged federal law governing
political party independent expenditures, reaching the U.S. Supreme Court twice.
See Colorado Republican Fed. Campaign Comm. v. Fed. Election Commn, 518
U.S. 604, 617-18 (1996) (Colorado Republicans I); Fed. Election Commn v.
Colorado Republican Fed. Campaign Comm., 533 U.S. 431, 440 (2001)
(Colorado Republicans II). In Colorado Republicans I, the Supreme Court held
that the First Amendment prohibited any caps on expenditures made by a political
party independently from candidate campaigns. Colorado Republicans I, 518 U.S.
at 616. When the case returned to the high court five years later, it rejected the
Partys First Amendment challenge to limits on political party contributions to
candidates in the form of coordinated expenditures. Colorado Republicans II, 533
U.S. at 446-447. Neither of these decisions called into question the federal
contribution limit of $20,000 per donor to a political party (with no corporate or
union contributions allowed), even if that money was used for independent
expenditures. See Colorado Republicans I, 518 U.S. at 617; Colorado Republicans

II, 533 U.S. at 458.

On January 21, 2010, the U.S. Supreme Court struck down the federal law
banning corporate and labor union spending, except through political committees,
as unconstitutional under the First Amendment. Citizens United v. Fed. Election
Commn, 558 U.S. 310 (2010). Shortly thereafter, the Colorado Supreme Court
ruled that in light of Citizens United, the Colorado Constitutions prohibition on
corporate and labor union independent expenditures could no longer be enforced.
In re Interrogatories Propounded By Governor Bill Ritter, Jr., 227 P.3d 892 (Colo.
2010).
The General Assembly acted swiftly to require transparency of this new
spending by enacting Senate Bill 10-203, signed by the Governor on May 25,
2010. The new statute recognized that corporations and labor unions were no
longer prohibited from making independent expenditures and declared its purpose
to be to require [a]ll such expenditures to be disclosed in accordance with the
requirements of this article and Article XXVIII of the state constitution. C.R.S.
1-45-107.5(2). It established a new type of committee, an independent
expenditure committee, defined as 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. C.R.S. 1-45-103(11.5). To

ensure transparency of these newly legalized expenditures, the statute imposed

upon independent expenditure committees registration and reporting requirements
parallel to those that exist for other committees. See C.R.S. 1-45-107.5(3) and
(4).
2. The Party establishes an independent expenditure committee subject
to political party limits, dissolves it, then establishes a new independent
committee for the purpose of accepting contributions not subject to those
limits.
It was well understood at the time the statute was enacted that if a political
party were to establish an independent expenditure committee, contributions to that
committee would still be subject to the contribution limits and prohibition of
corporate and labor union contributions established in Colo. Const. art. XXVIII,
3(3) and 3(4). Consistent with this understanding, Respondent Party established an
independent expenditure committee for the 2012 election, and treated contributions
to the committee as contributions to the Party subject to constitutional limitations
and prohibitions. [R:3, Verified Complaint 13.]
That changed in November 2013, when the Party petitioned the Secretary for
a declaratory order permitting it to establish a new independent expenditure
committee for the purpose of making independent expenditures [and which] may
raise funds in any amount from any permissible source. [R:15, Verified
Complaint at 15.] This was the first time the Party attempted to set up a
mechanism to fund independent expenditures with money not subject to
6

contribution limitations or prohibitions.

In a Final Agency Decision dated February 6, 2014, the Secretary declined
to issue the declaratory order. [R:137-47.] Acting through his Deputy, the
Secretary told the Party that its options were to file a declaratory judgment action
in state or federal court or proceed and defend a campaign finance complaint if one
were to be filed. [R:141.] The Final Agency Order went on to include an advisory
opinion generally in favor of the Partys position, presumably to bolster the Partys
position in any future suit. [R:141-47.] On February 7, 2014, the Party terminated
its independent expenditure committee that complied with article XXVIIII
limitations. [R:3, Verified Complaint at 13.]
The statute that authorizes petitions for declaratory orders also treats the
agencys ruling on such a petition as a final agency action subject to judicial
review. C.R.S. 24-4-105(11). Rather than seeking review of the Secretarys
decision, however, the Party accepted his invitation to file this declaratory
judgment action. [R:4, Verified Complaint at 17.]
On May 7, 2014 the Party filed paperwork to establish its new independent
expenditure committee and appointed Tyler Harber as its executive director. [R:59,
83.] An executive committee of two was appointed in July. [R:59.] On August 8,
2014, the same day the Party filed its motion for summary judgment, the Standing
Rules of the Partys new independent expenditure committee went into effect.

[R:79-82.]
III. SUMMARY OF ARGUMENT
The Party attempts to avoid decades-old contribution limitation and
prohibitions on political parties through a new hyper-technical reading of the state
statute establishing disclosure requirements for independent expenditure
committees. The district court erred by not interpreting this statute in harmony with
the Colorado Constitution. If the statute cannot be construed to comply with
Article XXVIII, then it is unconstitutional to the extent that it contradicts the
constitutional provisions governing political party contributions.
In addition, the language of the Standing Rules demonstrates that the
independent expenditure committee is subject to the control of the Party, and
therefore, not truly independent.
IV. ARGUMENT
A.

Standard of Review
The questions of constitutional and statutory interpretation presented here

are reviewed de novo. Tulips Invs., LLC v. State ex rel. Suthers, 2015 CO 1, 11.
Because the Fair Campaign Practices Act and the Campaign and Political Finance
Amendment both pertain to campaign finance regulations, they are in pari materia
and must be construed together. Colorado Ethics Watch v. Clear The Bench
Colorado, 2012 COA 42, 32 (Clear The Bench).

The interpretation of the Partys independent expenditure committees

Standing Rules presents a question of interpretation of a written instrument that is
also subject to de novo review. P.F.P. Family Holdings, L.P. v. Stan Lee Media,
Inc., 252 P.3d 1, 3 (Colo. App. 2010).
B.
The Statute Does Not Override the Colorado Constitutions Limits on
Contributions to Political Parties.
Ethics Watch raised the issue of the proper interpretation of the independent
expenditure statute and the applicability of the Colorado Constitutions
contribution limits and source prohibitions applicable to political parties in its
opposition to the Partys summary judgment motion. (R:105-110, Opposition Brief
at pp. 7-12). The district court implicitly rejected this argument when it ruled that
the Party could operate its independent expenditure committee outside of
constitutional limits so long as it is independent. (R:152, Order at 5.)
1.
The Statute Must Be Read In Harmony with the Colorado
Constitutions Contribution Limits and Source Prohibitions For Political
Parties.
When a reviewing court construes a statute, it must determine and give
effect to the intent of the legislature by affording the language of the statute its
plain and ordinary meaning. A statute must be construed in a manner that gives
effect to the legislative purpose underlying its enactment. If possible, the statute
should be interpreted so as to give consistent, harmonious, and sensible effect to all
its parts. City & County of Denver v. Indus. Claim Appeals Office, 107 P.3d 1019,
9

1020-1021 (Colo. App. 2004) (citation omitted). The importance of this rule is
heightened when, as here, the statute must be construed in harmony with the
Campaign Finance Amendment. See Clear The Bench, 2012 COA 42, 32; see
also Huber v. Colo. Mining Ass'n, 264 P.3d 884, 889 (Colo. 2011) (when statute is
capable of more than one interpretation, courts must choose the construction that
avoids a constitutional issue).
The district court placed great weight on the fact that the constitutional
definition of person includes political parties, and that C.R.S. 1-45-107.5
permits any person to establish an independent expenditure committee. [R:150,
Order at 3.] It does not follow, however, that a political party committee that
chooses to create an independent expenditure committee somehow exempts itself
from the constitutional limitations on contributions to political parties.
Reading the statute harmoniously with the constitution, a political party may
establish an independent expenditure committee but any contributions it receives
must comply with the contribution limits and prohibition of contributions from
corporations or labor unions set forth in Colo. Const. art. XXVIII, 3(3) and (4).
This reading of the statutes application to political parties is consistent with the
controlling Supreme Court precedent regarding independent expenditures by
parties developed in Colorado Republicans I and II. The Court must assume that
the legislature and those involved in the bill at the time were aware of this

10

precedent which arose from actions of the Party itself. See Colorado Ethics Watch
v. Senate Majority Fund, LLC, 2012 CO 12, 20 (legislature must be presumed to
be aware of existing case law when it amends or clarifies campaign finance law).
Senate Bill 10-203 nowhere mentions political parties, as one might expect if the
statute really were intended, as the Party contends, to depart from the thengoverning approach and allow political parties to begin avoiding contribution
limits and source prohibitions by establishing an independent expenditure
committee.
Further proof that the General Assembly did not intend to allow political
parties to use independent expenditure committees to avoid constitutional
limitations on the size and source of contributions may be found in the statutes
express provision that [a]n independent expenditure committee shall not be
treated as a political committee, and therefore, shall not be subject to the
requirements of section 3(5) of article XXVIII of the state constitution
establishing contribution limits to political committees. C.R.S. 1-45-103.7(2.5).3
This statute does not state that independent expenditure committees are free from
all contribution limits in Article XXVIII, nor does it refer to the political party

The main difference between political committees and independent expenditure

committees is that political committees may make direct contributions to
candidates or political parties, while independent expenditure committees may not.
See Colo. Const. art. XXVIII, 3(1), 3(3); C.R.S. 1-45-103.7(2.5); Campaign
and Political Finance Rule 3.3, 8 C.C.R. 1505-6 (3.3).
3

11

contribution provisions in 3(3) and (4) as part of this exception. Given the
General Assemblys care to declare political committee limits inapplicable to
independent expenditure committees, the Court should not presume from the
legislatures silence that it also intended to declare political Party contribution
limits inapplicable to such committees.
The legislative history, like the statute itself, is devoid of any suggestion that
a political party could establish an independent expenditure committee and accept
contributions that would otherwise be limited or prohibited. The natural reading of
the statutory language is that the General Assembly intended to exempt
independent expenditure committees only from political committee contribution
limits, and not also from political party contribution limits. See C.R.S. 1-45103(11.5). The district court erred by interpreting the statute as overriding the
contribution limits and source prohibitions in Article XXVIII and departing from
Supreme Court precedent authorizing regulation of how political parties raise
money for independent expenditures.
Strong policy considerations support the peoples decision to limit
contributions to political parties. In Colorado, as in other states and at the federal
level, political parties are differently situated and appropriately treated differently
than corporations, labor organizations, or other associations. See, e.g., C.R.S. 14-502(1) (providing that political parties may nominate candidates for the ballot,

12

while candidates not affiliated with a party must gather signatures to get on the
ballot). This preferential access to the ballot, along with the political reality that the
two major party caucuses dominate legislative proceedings in Colorado and
elsewhere, justifies treating political parties differently from other organizations.
Interest groups do not select slates of candidates for elections. Interest groups do
not determine who will serve on legislative committees, elect congressional
leadership, or organize legislative caucuses. Political parties have influence and
power in the Legislature that vastly exceeds that of any interest group. McConnell
v. Fed. Election Commn, 540 U.S. 93, 188 (2003); see also Colorado Republicans
I, 518 U.S. at 617-618 (1996) (noting the potential for corruption linked to the
ability of donors to give sums up to $20,000 to a party which may be used for
independent party expenditures for the benefit of a particular candidate).
Colorado citizens have spoken and decided that the potential for corruption
warrants limitations on contributions to political parties and the prohibition on
direct receipt of corporate or union funds. See Colo. Const. art. XXVIII, 3(3) and
3(4). Their will should not be subverted by a strained construction of the
independent expenditure committee statute that would interpret legislative silence
as a license to ignore these constitutional limits on parties.
The district court erred by failing to read the statute governing independent
expenditure committees in harmony with the political party contribution limits in

13

Colo. Const. art. XXVIII, 3.

2.
Alternatively, Senate Bill 10-203 Is Unconstitutional To The
Extent It Purports to Authorize Political Parties to Avoid Constitutional
Contribution Restrictions.
Should the court determine, however, that the statute can only be read as
allowing political parties to establish independent expenditure committees not
subject to contribution limits and source prohibitions, then it must hold Senate Bill
10-203 unconstitutional to the extent it purports to allow political parties to avoid
the contribution limits and source restrictions set forth in Colo. Const. art. XXVIII,
3. It is well-established that Colorado statutes that contradict the state
Constitution must be set aside. E.g., Town of Telluride v. San Miguel Valley Corp.,
185 P.3d 161, 171 (Colo. 2008). The General Assembly is without authority to
authorize by statute that which the state constitution prohibits.
C.
The District Court Erroneously Concluded That the Partys
Independent Expenditure Committee Is Independent of The Party.
Ethics Watch argued that the undisputed evidence established that the Party
controls its independent expenditure committee in its opposition brief. (R:103-04,
Opposition Brief at 5-6.) The district court erred when it ruled that the undisputed
evidence established that the Partys independent expenditure committee is not
controlled by the Party. (R:150-52, Order at 3-5.)
The Colorado Constitution treats an expenditure coordinated with or
controlled by . . . a political party as a contribution to that political party. Colo.
14

Const. art. XXVIII, 5(3) (emphasis added). Moreover, under the Secretarys Rule
1.4, coordination occurs when a committee makes an expenditure at the request,
suggestion, or direction of, in consultation with, or under the control of
thatpolitical party. Campaign and Political Finance Rule 1.4., 8 C.C.R. 1505-6
(1.4) (emphasis added). The undisputed facts demonstrate that the Partys
independent expenditure committee is controlled by the Party.
At the most fundamental level, the independent expenditure committee is
structured as a standing committee and separate segregated fund of the Party.
[R:79.] The Partys chairman appoints the Executive Director and management
committee members, names replacements when a members term expires, and can
remove members for cause with concurrence of a majority of the committees
management committee. [Id.] The avowed purpose of the committee is to express
the facts, argument, and perspective of the Colorado Republican Party. [R:76.]
The district court placed great weight on the Standing Rules recitation that
the Executive Director or members of the management committee can be removed
only for fraud or malfeasance. [R:151, Order at 4.] This ruling ignored the
numerous, specific directions regarding political spending set forth in the Standing
Rules, the violation of which certainly could constitute malfeasance. It also
ignored the Standing Rules that cement the Partys control of its independent
expenditure committee, including (1) requiring the independent expenditure

15

committee to adhere to directions from the Party and (2) allowing the Party to
override provisions of the Standing Rules at any time by amending its bylaws.
For example, Rule 12 of the Standing Rules provides:
The IEC is permitted to accept contributions and expend
funds and make independent expenditures and
electioneering communications to support and influence
the election of Republican candidates for public office or
an office in a political organization at the state and local
level ONLY.
[R:81.] The requirement that the independent committee support only
Republican candidates a requirement imposed by the Party itself alone
demonstrates that the committee is not independent of the Party. A truly
independent committee would be free to spend money on behalf of any state
candidate regardless of partisan affiliation.
Rule 18 of the Standing Rules imposes an additional restriction on spending
by the purportedly independent committee:
The IEC will abide by the requirement of pre-primary
neutrality set forth in Article III, Section C of the [Party]
Bylaws which provides that No candidate for any
designation or nomination for partisan public office shall
be endorsed, supported, or opposed by the [Party], acting
as an entity, or by its state officers or committees, before
the Primary Election, unless such candidate is unopposed
in the Primary Election.
[R:82.] A truly independent committee would be free to spend on behalf of
candidates in a primary election.

16

The Court should hold that the Standing Rules provisions that prohibit
support of candidates other than Party candidates or spending in connection with
primary campaigns are a form of control by the Party over the spending of its
purportedly independent committee that constitutes control under Colo. Const. art.
XXVIII, 5(3) and coordination under Rule 1.4. While the district court criticized
Ethics Watch for failing to provide evidence that the committee would not follow
its own bylaws in the future a curious criticism in an action for declaratory
judgment regarding rights under a written instrument it failed to consider the
effect of the Partys committee following its own Standing Rules that restrict its
spending and subject it to Party bylaws. [R:151, Order at 4.]
Even if the independent expenditure committee were to display true
independence and spend in violation of Party dictates, the Party chairmans power
to remove the Executive Director or members of the management committee for
cause enforces adherence to Party rules and requirements to which no truly
independent committee would be subject. The undisputed evidence established that
the party bylaws allow the executive director to be removed for cause if, for
example, the committee spends money in a Party primary (other than a primary
where there is only one Party candidate) or if the committee spends money to
support a candidate who is not a Party candidate. The district court erred as a
matter of law in its interpretation of the Standing Rules when it held that the

17

Standing Rules eliminate the ability of the Party to have any control over the IECs
activities including and especially its expenditures. (R:128, Order at 4)
(emphasis by the Court).
The district court also gave no weight to Standing Rule 19, which subjects
the committee to the bylaws of the Party and of the Republican National
Committee and renders inoperative and ineffective any provision deemed to
conflict with those bylaws. [R:82.] Thus, at any time the Party may pass a bylaw
that would supersede the provisions of the Standing Rules that purportedly
establish the independent expenditure committees independence from the Party.
Campaign and Political Finance Rule 1.4 states that coordination with a
political party is established when expenditures are made under the control of that
. . . political party. 8 C.C.R. 1505-6 (1.4). Contrary to the district courts apparent
understanding, 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
through its bylaws, the Standing Rules, and its enforcement authority over the
executive director and committee members. See, e.g., Republican Party of N.M. v.
King, 741 F.3d 1089, 1103 (10th Cir. 2013) (noting if a group was indirectly
controlled by a political party and considered coordinated then contributions would
be subject to political party limits).

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The Court should reverse the district courts determination that the
undisputed facts establish that the Partys independent expenditure committee is
independent from the Party.
D.
The First Amendment Does Not Compel Colorado To Allow Unlimited
Contributions To Political Parties.
Before the district court, the Partys primary argument was that First
Amendment case law forbidding caps on spending should drive the court to rule
that the Party may accept corporate and labor union contributions and contributions
above the state constitutions limits. [R:63-65, Motion for Summary Judgment at
pp. 7-9.] Ethics Watch argued that this case is about political party contribution
limits, not spending, and such limits have been repeatedly upheld against First
Amendment challenges. [R:110-17, Opposition Brief at pp. 12-19.] The district
court did not reach the issue in its Order, however, Ethics Watch will address the
issue in the event the Party urges it as an alternative rationale to uphold the
judgment below.
The Party had to admit that laws like Colorados contribution limits and
source prohibitions applicable to political parties have not yet been successfully
challenged in court. [R:72, Motion for Summary Judgment at 16]. See Rufer v.
Fed. Election Commn, No.14-cv-837, 2014 U.S. Dist. LEXIS 114762, *22
(D.D.C. August 19, 2014) (stating political parties case arguing contribution limits
should not apply to party independent expenditures is in tension with forty years
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of Supreme Court jurisprudence upholding contribution limits to political parties).

It is well-established that reasonable contribution limits directly and
materially advance the Government's interest in preventing exchanges of large
financial contributions for political favors. Colorado Republicans I, 518 U.S. at
615 (citing Buckley v. Valeo, 424 U.S. 1, 26-27 (1976)). Contribution limits
permit[] the symbolic expression of support evidenced by a contribution but do[]
not in any way infringe the contributors freedom to discuss candidates and
issues. McCutcheon v. Fed. Election Commn, 134 S. Ct. 1434, 1444 (2014)
(quoting Buckley, 424 U.S. at 21, brackets in original).
Under the lower level of scrutiny mandated by the Supreme Court,
contribution limits are valid so long as they are closely drawn to match a
sufficiently important government interest. McConnell, 540 U.S. at 136. This
lower scrutiny gives deference to the legislatures ability to weigh competing
interests and provides legislation sufficient room to anticipate and respond to
concerns about circumvention of regulations designed to protect the integrity of the
political process. Id. at 137.
In McConnell, the Supreme Court upheld a federal law banning soft
money contributions outside political party contribution limits as constitutional
means to address the governments interest in preventing corruption and
appearance of corruption:

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Given this close connection and alignment of interests,

large soft-money contributions to national parties are
likely to create actual or apparent indebtedness on the
part of federal officeholders, regardless of how those
funds are ultimately used.
Id. at 155.
McConnells approval of political party contribution limits remains good law
after Citizens United. See, e.g., Republican Natl Comm. v. Federal Election
Comn (In re Anh Cao), 619 F.3d 410, 422 (5th Cir. 2010) (rejecting constitutional
challenge to contribution limits on political parties because we do not read
Citizens United as changing how this court should evaluate contribution limits on
political parties and PACs). The most recent Supreme Court case on contribution
limitations, which struck down aggregate individual donor limits not at issue in this
case, reaffirmed contribution limits applied to political parties are constitutional
and still binding. See McCutcheon, 134 S. Ct. at 1451 n.6 (Our holding about the
constitutionality of the aggregate limits clearly does not overrule McConnells
holding about soft money.).
Directly on point is the post-Citizens United case of Republican Natl
Comm., et al. v. Federal Election Commn, 698 F. Supp. 2d 150 (D.D.C 2010).
That case involved a First Amendment challenge brought by national and state
party committees challenging the contribution limits for political parties very
similar to the Partys arguments in the district court. The political party sought to

21

raise contributions not subject to statutory contribution limits for use in certain
activities not connected to federal candidate races and argued that the First
Amendment prohibited limiting contributions in those circumstances. Id. at 15556. The special three-judge panel (including one D.C. Circuit Judge) held
unanimously that Citizens United did not disturb McConnells holding with
respect to the constitutionality of [statutory] limits on contributions to political
parties. Id. at 153. On direct appeal, the U.S. Supreme Court summarily affirmed
the three-judge panels ruling. Republican Natl Comm.et al. v. Federal Election
Comn, 130 S.Ct. 3543 (2010).
Thus, governing Supreme Court precedent states that contribution limits and
prohibitions can constitutionally be applied to political parties regardless of
whether they intend to use the money for independent expenditures. See
McCutcheon, 134 S.Ct. at 1451 (Those base limits remain the primary means of
regulating campaign contributions.); Colorado Republicans II, 533 U.S at 481-82
(Indeed, parties capacity to concentrate power to elect is the very capacity that
apparently opens them to exploitation as channels for circumventing contribution
and coordinated spending limits binding on other political players.). The Court
should reject any invitation by the Party to hold Colorados political party
contribution limits unconstitutional.

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V. CONCLUSION
For these reasons, this Court should reverse the judgment of the district court
and remand with instructions to enter judgment against Respondents Colorado
Republican Party and the Colorado Secretary of State, declaring that contributions
to the independent expenditure committee established by the Party are subject to
the Colorado Constitutions contribution limits and source restrictions applicable to
political parties.
Respectfully submitted on March 6, 2015.
signed original on file

/s/ Luis Toro________________

Luis Toro
Margaret Perl
Colorado Ethics Watch
1630 Welton Street, Suite 415
Denver, CO 80202
Attorneys for Appellant
Colorado Ethics Watch

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on March 6, 2015, service of the
foregoing OPENING BRIEF was made via ICCES, addressed as follows:
Matthew D. Grove
Sueanna Johnson
Office of the Attorney General
1525 Sherman Street, 7th Floor
Denver, CO 80203

Richard A. Westfall
Allan L. Hale
Peter J. Krumholz
Hale Westfall LLP
1600 Stout Street, Suite 500
Denver CO 80202

signed original on file

/s/ Luis Toro

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