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 203
Denver, CO 80202
Telephone: 303-626-2100
Email: ltoro@coloradoforethics.org
pperl@coloradoforethics.org
REPLY BRIEF

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iii

CERTIFICATE OF COMPLIANCE .........................................................................v
I. INTRODUCTION ...............................................................................................1
II. ARGUMENT .......................................................................................................3
A. Standard of Review ..........................................................................................3
B. The 2010 Statute Did Not and Could Not Create An Exception to
Constitutional Limits on Political Party Contributions ..........................................4
C. The Partys Independent Expenditure Committee is a Subsidiary Part of, and
Legally Controlled by, the Party ...........................................................................11
D. First Amendment Precedent Consistently Upholds Limiting Contributions to
Political Parties Regardless of Use of Funds, Even After Citizens United ..........14
III.

CONCLUSION ..............................................................................................20

ii

TABLE OF AUTHORITIES
Cases
Carey v. Fed. Election Commn, 791 F. Supp. 2d 121 (D.D.C. 2011) ....................15
Citizens United v. Fed. Election Commn, 558 U.S. 310 (2010)...............................2
Colo. Ethics Watch v. Clear The Bench Colo., 2012 COA 42, 32 .............. 1, 3, 11
Colorado Assn of Public Employees v. Board of Regents, 804 P.2d 138 (Colo.
1990) .......................................................................................................................4
Colorado Ethics Watch v. Senate Majority Fund, LLC, 2012 CO 12 .............. 1, 6, 9
Colorado Republican Fed. Campaign Comm. v. Fed. Election Commn, 518 U.S.
604 (1996) ...........................................................................................................8, 9
Davis v. FEC, 554 U.S. 724, 742 (2008) .................................................................19
Gibbons v. Ludlow, 2013 CO 49, 11. ......................................................................3
Martinez v. People, 69 P.3d 1029, 1033 (Colo. 2003) ............................................10
McConnell v. Fed. Election Commn, 540 U.S. 93, 188 (2003)..........................8, 20
McCutcheon v. Fed. Election Commn, 134 S. Ct. 1434, 1451 n.6 (2014) ...... 17, 19
P.F.P. Family Holdings, L.P. v. Stan Lee Media, Inc., 252 P.3d 1, 3 (Colo. App.
2010) .......................................................................................................................4
Republican Natl Comm. v. Fed. Election Commn (In re Anh Cao), 619 F.3d 410,
422 (5th Cir. 2010)................................................................................................20
Republican Natl Comm., et al. v. Fed. Election Commn, 698 F. Supp. 2d 150, 158
(D.D.C 2010) ................................................................................................. 16, 20
Republican Natl Comm.et al. v. Federal Election Comn, 130 S.Ct. 3543 (2010) 16
Republican Party of N.M. v. King, 741 F.3d 1089 (10th Cir. 2013), ......... 15, 17, 18
Rufer v. Fed. Election Commn, No.14-cv-837, 2014 U.S. Dist. LEXIS 114762,
*22 (D.D.C. August 19, 2014) ....................................................................... 16, 19
Speech Now.org v. Fed. Election Commn, 599 F.3d 686, 695 (D.C. Cir. 2010) ...15
Thalheimer v. City of San Diego, 2012 U.S. LEXIS 6563 (S.D. Cal. Jan 20, 2012)
...............................................................................................................................18
Statutes
C.R.S. 1-45-103.7(2.5) ........................................................................................5, 7
C.R.S. 1-45-107.5 ...............................................................................................1, 5

iii

Rules
Campaign and Political Finance Rule 1.4., 8 C.C.R. 1505-6 (2015) ......................12
Constitutional Provisions
Colo. Const. art. XXVIII, 3(3) ..............................................................................10
Colo. Const. art. XXVIII, 3(3) ..................................................................... 1, 7, 11
Colo. Const. art. XXVIII, 3(4). .........................................................................1, 11
Colo. Const. art. XXVIII, 3(5) ................................................................................7
Colo. Const. art. XXVIII, 2(12)(c)(III) ...................................................................5
Colo. Const. art. XXVIII, 2(14)(c)(III) ...................................................................5
Colo. Const. art. XXVIII, 9(2) ................................................................................4

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).
X It contains 4,733 words.
It does not exceed 18 pages.
The brief complies with C.A.R. 28(k).
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.
X For the party responding to the issue:
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/ Margaret Perl
Margaret Perl
Attorney for the Appellant
Colorado Ethics Watch

Appellant Colorado Ethics Watch, by its undersigned attorneys, respectfully

submits this reply brief:
I.

INTRODUCTION

This is a simple case of statutory interpretation. Ethics Watch is asking this

Court to read the independent expenditure committee statute, C.R.S. 1-45-107.5,
in pari materia with the Colorado Constitutions political party contribution limits
and source restrictions in Article XXVIII, 3(3) and (4) when, as here, a political
party has established a committee pursuant to that statute. Colo. Ethics Watch v.
Clear The Bench Colo., 2012 COA 42, 32 (Clear The Bench) (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.).
To the extent that reading may not completely answer the question
presented, Ethics Watch asks this Court to assume, as it must, that the General
Assembly was aware of existing case law regarding political party independent
expenditure accounts when the statute was enacted in 2010. Colo. Ethics Watch v.
Senate Majority Fund, LLC, 2012 CO 12, 20 (Senate Majority Fund)
(legislators and voters are presumed to be aware of existing case law when either
enacts law).

The result of applying these principles of statutory construction is that

political party independent expenditures will continue to be treated the same way
they have been under Colorado and federal law since 1996, and as approved by the
U.S. Supreme Court even after the decision in Citizens United v. Fed. Election
Commn, 558 U.S. 310 (2010) and enactment of Colorados independent
expenditure committee statute later in 2010. That is, a political party remains
subject to political party contribution limits even if it raises and spends some of its
funds through an independent expenditure committee.
It is Appellee Colorado Republican Party (the Party) that asks this Court
to move beyond existing First Amendment precedent to rule that an independent
expenditure arm of a political party must be exempt from contribution limitations
that otherwise apply to political parties. The Party devotes little effort to defending
the district courts rationale or attempting to construe the statute in harmony with
Article XXVIIIs provisions. Instead, it advances arguments for striking down
Colorados political party contribution limits under a yet-to-be-accepted reading of
First Amendment precedent. Such a result is not compelled by state or federal law
or the First Amendment.

II.
A.

ARGUMENT

Standard of Review
All aspects of this case are properly subject to de novo review by this Court.

The district court did not engage in fact-finding, but was presented with an
undisputed set of facts and a declaratory judgment request to establish the Partys
rights under law. [R:10, Verified Complaint at 49]. The district courts order is
based upon its interpretations of three written legal documents (1) the Colorado
Constitution, (2) applicable campaign finance statutes, and (3) the Partys Standing
Rules, which formed the basis of the undisputed facts. Each of these district court
legal interpretations is subject to de novo review in this Court. See Clear The
Bench, 2012 COA 42, at 38 (applying de novo review when underlying facts are
undisputed and issue presented as one of law to administrative judge). This is
consistent with the de novo review of a district court granting summary judgment
as a matter of law when no material facts are in dispute. See Gibbons v. Ludlow,
2013 CO 49, 11.
The Party is correct that the Standing Rules are not a contract between
Ethics Watch and the Party. [Answer Br. at 11.] But this was not an action to
declare the relative legal rights and responsibilities between the parties under that
document alone. Instead, this declaratory action sought interpretation of the law
and the Standing Rules to declare the scope of the Partys legal rights, with the
3

Standing Rules acting akin to bylaws for the independent expenditure committee.
Ethics Watch joined the case as an additional party defendant because (1) the Party
feared that Ethics Watch would file a campaign finance complaint against it under
Colo. Const. art. XXVIII, 9(2) in the absence of a declaratory judgment
authorizing it to proceed, and (2) Ethics Watch expected the Secretary, who
offered a non-binding opinion supporting the Party, to fail to defend the
declaratory judgment suit he invited the Party to file. [R:22-24, Ethics Watchs
Unopposed Motion to Intervene as Defendant.] The Party itself raised the Standing
Rules to support its contention that its own independent expenditure committee is
not controlled by the party. Interpretation of the Partys rights under that
document, like the interpretations of the Colorado constitution and statutes, is a
question of law reviewed de novo. See P.F.P. Family Holdings, L.P. v. Stan Lee
Media, Inc., 252 P.3d 1, 3 (Colo. App. 2010) (In construing corporate bylaws, we
apply the same rules used to interpret statutes, contracts, and other written
instruments) (internal citations omitted). Accordingly, we review the construction
of corporate bylaws de novo.
B.
The 2010 Statute Did Not and Could Not Create An Exception to
Constitutional Limits on Political Party Contributions
The General Assembly cannot amend the Colorado Constitution through
legislation. See Colo. Assn of Public Employees v. Board of Regents, 804 P.2d
138, 142 (Colo. 1990) (The legislature cannot enact a law contrary to those
4

constitutional restraints.). The provisions in C.R.S. 1-45-103.7(2.5) and 1-45107.5 were enacted against the backdrop of constitutional provisions and Supreme
Court case law about independent expenditures by political parties detailed in the
Opening Brief and Amicus Brief. Article XXVIII subjects political parties to
contribution limitations and source prohibitions in sections 3(3) & 3(4) regardless
of the specific activity conducted by the party with the money raised. The only
limited exceptions to this rule is the constitutional provision that allows political
parties to establish and control political committees and small donor
committees which are in-turn subject to the specific limitations and prohibitions
attached to those types of committees. See Colo. Const. art. XXVIII, 2(12)(c)(III)
and 2(14)(c)(III). There is no indication in the language of the constitution that the
voters intended political parties to be able to conduct any activities or operate any
accounts that were free of all contribution limitations and prohibitions.
When enacted, Article XXVIII could not specifically address independent
expenditures committees as a type of political organization, because such entities
didnt exist at the time. Political parties were making independent expenditures (in
the sense that those expenditures were not coordinated with candidates) at that time
pursuant to well-known Supreme Court cases. Voters are presumed to be aware of
Colorado Republicans I and II (discussed in the Opening Brief and the Amicus
Brief), and the Article should be interpreted as adopting the regime under those
5

cases where political parties make independent expenditures through a separate

party-controlled bank account using only money subject to constitutional limits
(so-called hard money). See Senate Majority Fund, 2012 CO 12, 20.
This would be consistent with the Articles requirements that any political
committees or small donor committees that are established, financed, maintained,
or controlled by the same political party are aggregated and treated as a single
committee. See Colo. Const. art. XXVIII, 2(12)(c)(III) and 2(14)(c)(III). The
Colorado system prevents a political party from creating a number of internally
controlled committees and evading contribution limits, regardless of how those
committees are structured similar to what the Party seeks to do here with its new
independent expenditure committee. Thus, these provisions indicate voter intent
and the spirit of the constitutional limitations on parties that informed the 2010
legislation.
The General Assemblys goal in Senate Bill 10-203 (enacting the
independent expenditure committee provisions here) was to address the new
categories of political spenders corporations and unions that had been
prohibited from making independent expenditures before the Citizens United
decision. Lawmaker concern was focused on shining a light on this new spending
in Colorado elections, so as to not open a new loophole for undisclosed spending.
See Senate State Affairs Bill Summary and House State Affairs Bill Summary,
6

included in Appendix A. There was no intent to disturb any political actors already
reporting. Political parties had been making independent expenditures and
reporting all such spending for years when this bill was introduced, and therefore,
were not within the scope of the legislations purpose.
A chart distributed by the legislative sponsor during Senate committee
debate on the bill shows the anticipated donors for newly created independent
expenditure committees as corporations, unions, individuals and other political
committees. See Senate State Affairs Bill Summary Attachment A, included in
Appendix A. Political parties are listed in a separate part of the chart, together with
the limitations on contributions applicable to their spending. Id. Finally, the chart
categorizes political parties as entities that made and disclosed independent
expenditures in the pre-Citizens United world. Id. The statutory language in C.R.S.
1-45-103.7(2.5) reflects the intent of the General Assembly to cover spending by
outside entities, not political parties, as it exempts such committees from the
contribution limits for political committees in Article XXVIII, 3(5) but does not
exempt them from the limits on political parties in 3(3). Indeed, no
representatives of political parties in Colorado testified in the committee hearings
on this legislation. See Senate State Affairs Bill Summary and House State Affairs
Bill Summary, included in Appendix A.

Both the Party and other political parties in Colorado acted as though the
2010 legislation did not change how parties conducted independent expenditures
when they organized their 2012 election cycle spending in compliance with
constitutional contribution limits. [R:3, Verified Complaint at 13]. No Supreme
Court rulings or other major legal events occurred between that time and late 2013
when the Party decided to push a novel interpretation of the law that would allow it
to create a new unlimited pot of funds to use for independent expenditures.
It is true that this legislative intent and interpretation of the statute treats the
Party (and all political parties) different than some other political spenders, but that
was permissible in 2010 when the statute was enacted and it is still permissible
today. [Amicus Br. at 12-13]. The voters enacted Article XXVIII limits on parties
understanding the abuses of soft money by political parties. [Amicus Br. at 1417]. The unique position of parties in our political system as a vehicle for
candidates to access the ballot, and their relationship with elected officials, has led
courts to recognize different corruption risks that justify this disparate treatment.
See McConnell v. Fed. Election Commn, 540 U.S. 93, 188 (2003); Colorado
Republican Fed. Campaign Comm. v. Fed. Election Commn, 518 U.S. 604, 61718 (1996) (Colorado Republicans I,). The legislature must be presumed to have
adopted the 2010 statute with knowledge of the balance of rights and
responsibilities for political parties making independent expenditures under federal
8

campaign finance law and the First Amendment. See Senate Majority Fund, 2012
CO 12, at 20. The statute contains no language to change that balance.
Although the Partys brief argues that it is unclear how reporting obligations
would apply to a novel committee subject to political party contribution limits
[Answer Br. at 18], there is historical evidence how such activities would be
conducted under Ethics Watchs interpretation of the statute. Both major political
parties conducted and reported independent expenditures in the years between the
constitutions adoption and the 2010 statute. The Party itself registered and
reported independent expenditures while using hard money subject to party
limits in the 2012 election cycle. This is not a new concept, as the federal political
parties have been conducting independent expenditures from that arm of their party
committee subject to party limits since Colorado Republicans I. [R:87-88, FEC
Campaign Guide: Political Parties]. It is the Party that seeks in this litigation to
create a new type of party-controlled, soft-money independent expenditure
committee not subject to contribution limits heretofore unrecognized in Colorado
or federal law. [Answer Br. at 17].
Ethics Watchs interpretation of the statute fits more with history of
campaign finance law and the legislative intent to target new political spenders
after Citizens United and bring them into the arena of public disclosure. Because
Citizens United did not discuss or affect reporting political players like political
9

parties and candidates, the 2010 statute did not intend to upset those preexisting
regimes, which remain governed by constitutional limits. See Martinez v. People,
69 P.3d 1029, 1033 (Colo. 2003) (The legislature is presumed to intend that the
various parts of a comprehensive scheme are consistent with and apply to each
other, without having to incorporate each by express reference in the other
statutory provisions.). If the Partys interpretation is adopted, then the statute
would apply to all previously reporting and limited entities similar to political
parties. For example, a candidate would be able to establish and control a separate
bank account, call it an independent expenditure committee, and raise unlimited
corporate money into that account to be used for pro-candidate messages, all while
retaining the ability to fire those responsible for the messages. This example
illustrates that the Partys reading of the statute results in a clear circumvention of
the contribution limits to candidates in article XXVIII, 3.1
Thus, if the district courts interpretation of the statute is not erroneous, the
statute must be considered in conflict with Article XXVIII, 3 and struck down as
unconstitutional. A statute that allows political parties and candidates (and possibly

Indeed, the Federal Election Commission has rejected this very idea after Citizens
United by holding a candidate cannot accept unlimited contributions into a separate
account seeking to make independent expenditures and established as a separately
reporting committee controlled and maintained by the candidate. See Advisory
Opinion 2011-21 (Constitutional Conservatives Fund PAC) included as Appendix
B.
10

other regulated entities) to evade constitutional limits by opening a separate bank

account as an affiliated committee and providing a set of rules to the people in
charge of spending that money (while the regulated entity solicits unlimited
donations for that bank account) violates both the letter and spirit of Article
XXVIII. But this Court need not make such a ruling. Instead it should read the
statute and constitution in pari materia so that C.R.S. 1-45-107.5 does not
abrogate the political party contribution limits and corporate and labor contribution
prohibitions in Colo. Const. art. XXVIII 3 and 4. See Clear The Bench, 2012
COA 42, 32.
C.
The Partys Independent Expenditure Committee is a Subsidiary Part
of, and Legally Controlled by, the Party
The political party contribution limits apply to money raised and spent by
the Partys independent expenditure committee because it is a wholly contained
subsidiary arm of the Party itself, inseparable from the Party, not because as a
stand-alone entity it would fall under the definition of political party in Article
XXVIII. [See Answer Br. at 14-15]. The Standing Rules and the Partys own
characterization of the independent expenditure committee as a standing
committee and separate segregated fund of the Party illustrate that it is a
component of the Party. [R:79, Standing Rules]. The district court erred in not
finding the committee a component of the Partys organization as a matter of law.

11

The district court also erred in holding that Ethics Watch had the burden to
provide particular evidence that the Party wouldnt follow the Standing Rules. The
premise of the declaratory judgment action brought by the Party is that if the Party
did not follow the Standing Rules, it could be sued for violating contribution limits
or source prohibitions. The point of the action was to obtain an order that if the
Party followed the Standing Rules, it should be ruled immune from such suits. As
explained in the Opening Brief, under the Standing Rules the Party appoints the
people directing the spending, sets the ground rules for the spending, raises money
for the spending, monitors for violations of bylaws, and possibly renders
ineffective any inconsistent rules adopted by the committees independent
managers. [R:81-82]. A fact-intensive coordination analysis is not required here
and would defeat the purpose of the declaratory judgment complaint. Because the
independent expenditure committee is legally controlled by the Party and
inseparable from the overarching Party apparatus, the district court should have
entered judgment against the Party. See Campaign and Political Finance Rule 1.4,
8 C.C.R. 1505-6 (2015).
The Partys brief provides a lengthy discussion of Federal Election
Commission (FEC) cases involving alleged coordination between candidates and
groups in an effort to show the high bar that must be met to prove that an outside
entity is coordinating with a candidate or political party when making expenditures
12

in support of that party or candidate. [Answer Br. at 23-26]. Such analysis is

irrelevant because the FEC would never engage in such an inquiry with regard to
independent expenditures made by a political party. The FEC considers all
independent expenditure arms of political parties as a constituent part of that
political party subject to the party contribution limits. [R:88]. While federal
political parties create firewalls to keep their independent teams separated from
the parts of the political party that engage in coordinated expenditures with
candidates pursuant to Colorado Republicans I, there is no attempt to create the
fiction that the independent team and its bank account is a separate entity from the
party not subject to limits.
This is how independent expenditure accounts of political parties have
always worked in Colorado and federal law. The Party now seeks to maintain the
benefit of controlling its committees message without the corresponding burden of
party contribution limits. The Partys brief points out numerous independent
expenditure committees that are not in any way controlled or established by the
Party, yet state their purpose is supporting Republican candidates. [Answer Br. at
30]. The existence of those committees and the fact that they are not within the
Partys control is exactly why the party wanted to have an internal independent
committee that it could control. In the Partys own words, it needed its own
committee where the messaging would reflect the facts, argument, and
13

perspective of the Colorado Republican Party. [R:76]. But there is a necessary

tradeoff to the benefit of controlling the message the independent expenditure
committee is subject to political party limits.
If the Partys interpretation of the law and Standing Rules is correct, the
Standing Rules provide a road map for dismantling the political party contribution
limits for all parties, or, as noted above, for candidates themselves. Any number of
projects or initiatives the party engages in could be artificially set up as a
separate bank account and standing committee, yet subject to Party appointment &
bylaws like the Standing Rules. Then the party would have a number of unlimited
pots of money to use for its activities. Such a result would subvert the voters
intent in enacting the political party limits in Article XXVIII, and the First
Amendment does not compel this court to allow it.
D.
First Amendment Precedent Consistently Upholds Limiting Contributions to
Political Parties Regardless of Use of Funds, Even After Citizens United

Despite the Partys optimism, there is no indication that contribution limits

to political parties or the requirement that political parties use hard money for
independent expenditures will be struck down on constitutional grounds any time
soon.
The brief submitted by Amicus Campaign Legal Center carefully charts the
history of political party contribution limitations and prohibitions and the Supreme
Courts repeated rejection of First Amendment challenges to these limits. This line
14

of cases is consistent both before and after Citizens United because the Court has
always treated political parties different from other actors in the political process.
See Republican Party of N.M. v. King, 741 F.3d 1089, 1100 (10th Cir. 2013)
(King) (These comments [in McConnell] reflect the Court's acceptance of the
analytical differences between parties and independent expenditure groups for
purposes of First Amendment protection: more onerous contribution restrictions
may be placed on political parties than on independent groups.). Even the cases
cited by the Party regarding limits on independent expenditure committees and
hybrid committees after Citizen United distinguished political parties from their
holdings. See Speech Now.org v. Fed. Election Commn, 599 F.3d 686, 695 (D.C.
Cir. 2010) (independent expenditures by political parties pursuant to Colorado
Republicans I are wholly distinct from independent expenditures by nonconnected groups); Carey v. Fed. Election Commn, 791 F. Supp. 2d 121, 131
(D.D.C. 2011) (the Commission fails to recognize that non-connected non-profits
are not the same as political parties and do not cause the same concerns.)
(emphasis in original).
There is a different corruption analysis for political parties based on a
different record of access to candidates and the holding in Citizens United
regarding the proper standard for corruption as applied to limitations on outside
groups is not applicable. A three-judge court including a D.C. Circuit Judge
15

rejected the national Republican Partys argument that Citizen Uniteds limited
theories of corruption are enough to strike down political party limits. Republican
Natl Comm., et al. v. Fed. Election Commn, 698 F. Supp. 2d 150, 158 (D.D.C
2010). That decision was summarily affirmed by the U.S. Supreme Court, thereby
placing its approval on the continued constitutionality of political party limits even
if the party intends to raise money for a separate bank account that will only
conduct certain protected activities. Republican Natl Comm. et al. v. Fed. Election
Commn, 130 S. Ct. 3543 (2010). A Supreme Court summary affirmance is not a
denial of certiorari. It is a merits decision with full precedential value, at least with
respect to the precise issue presented and necessarily decided by those actions.
Anderson v. Celebrezze, 460 U.S. 780, 784 n.5 (1983).
Thus, the Supreme Courts actions since Citizens United have reaffirmed the
limitations on political parties, not moved away from them. The recent Rufer case
denied a preliminary injunction because the political parties same scheme of
setting up a separate segregated fund to be used by the party for independent
expenditures and claiming to be free from contribution limits defied 40 years of
Supreme Court precedent. See Rufer v. Fed. Election Commn, 2014 U.S. Dist.
LEXIS 114762, at *22 (D.D.C. August 19, 2014). While the Rufer court did certify
questions to the D.C. Circuit for further discussion, there is no prospect of any
contrary constitutional ruling soon because the case was voluntarily dismissed
16

jointly by the parties. In short, recent Supreme Court precedent clearly does not
overrule McConnells holding about soft money, but the Party wants this Court
to rule to the contrary. McCutcheon v. Fed. Election Commn, 134 S. Ct. 1434,
1451 n.6 (2014).
The cases cited by the Party to support this drastic step overturning 40 years
of constitutional precedent do not support that proposition. Most relevant is King,
741 F.3d 1089, which supports the constitutionality of applying Colorados statute
consistently with the political party contribution limitations. The factual premise of
King was that the committees at issue in this case were not connected to, or
controlled by, the political party: the question before us is whether political
committees that are not formally affiliated with a political party or candidate may
receive unlimited contributions. Id. at 1103. In King the committee in question
had a treasurer who was an officer with a local county branch of the Republican
Party, but the committee was not in any way connected to much less controlled
by the state Republican Party. Id. at 1103 n.12. In sharp contrast here, the Partys
committee is officially registered as a separate segregated fund and standing
committee of the state party organization and is governed by the Standing Rules
and Party Chairs appointees. This case presents the situation distinguished by the
Tenth Circuit in King, a situation where the First Amendment challenge would be
governed by still-controlling law upholding political party restrictions:
17

While it is true that political parties can make unlimited

independent expenditures, see Colorado I, 518 U.S. at
618, the Supreme Court in McConnell upheld restrictions
on soft-money contributions to political parties
A state political party, due to McConnell, is much less
likely to bring a successful as-applied challenge to a
limitation on the contributions it may receive.
Id. at 1102-03.
The Party also places much weight on a single unpublished lower court
opinion in Thalheimer v. City of San Diego, 2012 U.S. LEXIS 6563 (S.D. Cal. Jan
20, 2012); a case with a unique set of facts that has not been applied elsewhere and
is not analogous to Colorados law. That court was faced with a raft of First
Amendment challenges to a complex system of municipal campaign finance laws,
including contribution limits on non-connected committees that only make
independent expenditures. Id. at *38. Political parties in this scheme were
alternatively banned from making any contributions or coordinated expenditures
with candidates, or limited to only $1000 in such contributions. Id. at *46, *57.
The court struck down these limits on political parties because they resulted in the
complete inability of the political parties to assist candidates they support. Id. at
*45. As one of its many holdings, the court did strike down a requirement that
money used by political parties for independent expenditures be attributable to an
individual that does not exceed $500 per candidate per election. Id. at *65-*66.
But this limited holding, in the context of the overall municipal scheme, was paired
18

with an affirmation of the corporate contribution limits on donations to political

parties. Id. at *66. It is important to note that this case was not appealed to the
Ninth Circuit, and has not been cited by courts in other jurisdictions to support the
proposition that political parties may make independent expenditures without being
subject to contribution limitations. Indeed, the Rufer court did not even mention
this case in its analysis of the parties likelihood of success in overturning Supreme
Court precedent upholding contribution limits on political parties regardless of
how the party uses the money. See Rufer, 2014 U.S. Dist. LEXIS 114762 at *22*23.
The only effect of the Citizen United line of cases on political party raising
and spending of money is the practical effect of making parties a restricted entity
seeking to message in a crowded world of unrestricted, unconnected organizations.
Indeed, this was the argument and impetus for the Partys verified complaint
seeking to relieve itself of financial restrictions in the Colorado Constitution in
order to increase the effectiveness of its message compared to outside nonconnected independent expenditure entities. [R:84, Affidavit of Ryan Call, 7-9].
But the First Amendment does not require or even permit campaign finance
law to level the financial playing field amongst political actors. See e.g. Davis v.
FEC, 554 U.S. 724, 742 (2008); McCutcheon, 134 S. Ct. at 1450. The Supreme
Court has repeatedly stated that disparate treatment of political parties compared to
19

other actors is constitutional. See, e.g., Republican Natl Comm. v. Fed. Election
Commn (In re Anh Cao), 619 F.3d 410, 422 (5th Cir. 2010) (the Supreme Court's
analysis fully supports the Government's differential treatment of political parties
because of what Colorado II recognized as a political party's unique susceptibility
to corruption); McConnell, 540 U.S. at 187-89 (rejecting political parties equal
protection challenge because laws discriminate against parties in favor of outside
special interest groups). Thus, the appropriate remedy is for the Party to argue to
the people of Colorado that a different policy choice is needed and propose
amendments to Article XXVIII. See Republican Natl Comm, 698 F. Supp. 2d at
160 n.5 (we recognize the RNCs concern about this disparity, which, it argues,
discriminates against the national political parties in political and legislative
debates. But that is an argument for the Supreme Court or Congress.). This Court
does not have the authority to overturn Supreme Court precedent to enact such a
policy choice, which can be made only by Colorado voters, under the guise of
enforcing the First Amendment.
III.

CONCLUSION

For these reasons, this Court should reverse the judgment of the district court
and remand with instructions to enter judgment declaring that contributions to the
independent expenditure committee established by the Party are subject to the

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Colorado Constitutions contribution limits and source restrictions applicable to

political parties.
Respectfully submitted July 1, 2015.
signed original on file
/s/ Margaret Perl
Luis Toro
Margaret Perl
Colorado Ethics Watch
1630 Welton Street, Suite 203
Denver, CO 80202
Attorneys for Appellant
Colorado Ethics Watch

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on July 1, 2015, service of the
foregoing REPLY 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

Christopher O. Murray
Brownstein Hyatt Farber Schreck, LLP
410 Seventeenth Street, Suite 2200
Denver, CO 80202-4432
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/ Margaret Perl

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