Yesterday, Ethics Watch filed a supplemental brief in a case that promises to shed the state’s first light on the effect of Citizens United v. FEC on Colorado campaign finance law.

In its brief filed with the Colorado Court of Appeals in a case against two 527 groups active in the 2008 election cycle, Ethics Watch highlights the fact that last month’s Citizens United case reinforces Ethics Watch’s claim that an ad doesn’t have to have “magic words” like “vote for/against” to be “for the purpose of expressly advocating the election or defeat of a candidate” under Colorado law.  The Senate Majority Fund and the Colorado Leadership Fund, the two 527 groups against whom Ethics Watch filed its complaint in 2008, filed a joint supplemental brief arguing for an expansive application of last month’s precedent by the U.S. Supreme Court.

“Last month, the Supreme Court considered and rejected several narrower arguments in the landmark Citizens United case, including one that an ad does not expressly advocate for or against a candidate as long as it avoids using certain so-called magic words,” said Luis Toro, director of Colorado Ethics Watch.  “This reinforces what Ethics Watch has been saying all along: if a group is going to run ads directly supporting a candidate, it has to obey the contribution limits and reporting requirements established in the Colorado Constitution.”

On September 10, 2008, Colorado Ethics Watch filed a complaint with the Colorado Secretary of State against the Senate Majority Fund LLC (SMF) and the Colorado Leadership Fund LLC (CLF) asserting that SMF and CLF sponsored political ads supporting particular candidates in violation of state laws. Ethics Watch’s complaint was based on the fact that by purchasing ads that expressly advocate in favor of state candidates, SMF and CLF became political committees under Colorado law and had to comply with all applicable contribution limits and reporting requirements.  An administrative law judge dismissed the complaint on the grounds that the ads were not considered express advocacy because they did not contain “magic words” like “vote for” a particular candidate. Ethics Watch filed an appeal in December 2008.

On January 21, the United States Supreme Court ruled in the Citizens United case that corporations have a First Amendment right to spend money on commercials intended to support or oppose the election of candidates for public office.  In its brief, Ethics Watch highlighted the fact that the motion picture at issue in Citizens United, like the ads paid for by SMF and CLF, never used words such as “vote against” in its discussion of then-presidential candidate Senator Hillary Clinton.  The Supreme Court rejected the argument that the ads in question did not expressly advocate against Senator Clinton’s candidacy.  Ethics Watch argues that by the same token, SMF’s and CLF’s ads should be deemed to have been purchased “for the purpose of expressly advocating” for the election of candidates, rendering SMF and CLF liable for failure to register as political committees, violation of political committee contribution limits, and failure to file independent expenditure reports.

On January 26, the Court of Appeals requested briefs regarding the effect of the Citizens United case.  The briefs contain the first arguments filed with a Colorado court regarding the effect of the recent Supreme Court decision on Colorado campaign finance law.

The case is set for oral argument at the University of Colorado Law School at 2:30 p.m. on February 17.

The supplemental briefs filed by Ethics Watch and by SMF and CLF can be viewed on the right hand side of the page.

Click here for the SMF-CLF Complaint

Click here for the SMF-CLF Appeal