The Center for Competitive Politics (CCP) filed a friend of the court brief with the Colorado Supreme Court urging the Court to uphold Secretary of State Scott Gessler’s proposed rule to conform the state’s issue committee rules with a federal court ruling.
The brief points out the predicament the Secretary of State is seeking to avoid“[o]n one side is the express language of Article XXVIII § 2(10)(a)(II), creating a $200 reporting threshold. From the other, the Tenth Circuit has found $2,200 in total contributions as too low to justify for state regulation of political speakers – and has explicitly found that amounts less than $1,000 are ‘well below’ the constitutional line for issue committee status. “
According to the brief, the result is that “[i]t appears the Secretary is trapped between an explicit provision of Article XXVIII and the explicit decision of the Tenth Circuit.”
In order to remedy the situation, Secretary Gessler proposed a rule allowing the trigger to increase to a constitutionally acceptable level. However, a recent Colorado Court of Appeals decision held that the Secretary could not make a rule that would conform with the federal court’s ruling.
Although the Colorado court ruled against Secretary Gessler, CCP’s brief points out that “Secretary’s attempt to harmonize a conflict between Article XXVIII and a conflicting federal court ruling—is not unique” and that “[t]he last time an explicit provision of Article XXVIII was at odds with Tenth Circuit mandates, the Secretary used his discretion to harmonize the law.”
Without the ability to promulgate this rule, the brief notes “Coloradans may choose not to engage in otherwise-constitutionally-protected activity. This chill of free speech will violate the civil rights of Colorado’s residents.”
