# Petition for Writ of Certiorari — Independence Institute Institute v. Buescher (No. 09-265) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0943%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2009 ## Text SUNT Ii) LADUE, bt. FILED 99-265 AUG 31 2009 QEPICE-OE THE CLERK Witla K. Suter, Clerk In The Supreme Court of the United States INDEPENDENCE INSTITUTE, Petitioner, Vv. BERNIE BUESCHER, SECRETARY OF STATE, STATE OF COLORADO, Respondent. On Petition For A Writ Of Certiorari To The Supreme Court Of Colorado PETITION FOR WRIT OF CERTIORARI INSTITUTE FOR JUSTICE WILLIAM H. MELLOR WILLIAM R. MAURER* STEVEN M. SIMPSON 901 North Glebe Road, Suite S900 Arlington, VA 22203 (703) 682-9320 Counsel for Petitioner “Counsel of Record COCKLE LAW BRIEF PRINTING ¢ ) CALI 9 OR CALL COLLECT (402) 3 QUESTIONS PRESENTED 1. Whether the First and Fourteenth Amend- ments forbid Colorado from imposing registration, administrative, and continuous reporting regulations on policy organizations that comment on state ballot measures but do not have the support or opposition of such measures as their central major purpose. 2. Whether Colorado’s disclosure requirements for donors to ballot measure campaigns in which there is no chance of quid pro quo corruption violate the right to engage In anonymous speech and association. PARTIES TO THE PROCEEDING & CORPORATE DISCLOSURE STATEMENT Petitioner is the Independence Institute, a Colorado non-profit corporation and plaintiff-appellant below. It has no parent corporation and no publicly held company owns stock in it. Respondent is Bernie Buescher in his official capacity as Secretary of State, State of Colorado, defendant-appellee below. TABLE OF CONTENTS QUESTIONS PRESENTED PARTIES TO THE PROCEEDING & CORPO- RATE DISCLOSURE STATEMENT TABLE OF AUTHORITIES OPINIONS BELOW JURISDICTION CONSTITUTIONAL AND STATUTORY PRO- Pe BEN SPINY LED voc cccsscsscccesecssensssonscosesseceees STATEMENT OF THE CASE A. Factual Background B. Procedural Background REASONS FOR GRANTING THE WRIT I. REVIEW IS REQUIRED BECAUSE THE LOWER COURT DID NOT FOLLOW THIS COURT'S DECISION IN BUCKLEY REGARDING THE DEFINITION OF POLITICAL OR ISSUE COMMITTEE, CAUSING A SPLIT BETWEEN IT AND THE FOURTH CIRCUIT AND CREATING INCONSISTENT PROTECTIONS FOR FREE SPEECH ACROSS THE COUN- IT. TABLE OF CONTENTS - Continued Page A. BUCKLEY ESTABLISHED A CLEAR STANDARD FOR WHEN AN OR- GANIZATION MAY BE REGULATED AS A POLITICAL OR ISSUE COM- MITTEE B. BUCKLEY’S STANDARD IS THE LAW IN THE SECOND AND FOURTH CIRCUITS AND HAS BEEN APPLIED BY FEDERAL DISTRICT COURTS ACROSS THE COUNTRY >. THE DECISION BELOW CONFLICTS WITH THE FOURTH CIRCUIT'S DECISION IN NCRTL AND ESTAB- LISHES AMBIGUOUS, OVERLY BROAD STANDARDS THAT CAN HAVE GRAVE CONSEQUENCES FOR FREE SPEECH ACROSS THE COUNTRY REVIEW IS NECESSARY TO RESOLVE WHETHER THE GOVERNMENT MAY REQUIRE DISCLOSURE OF CONTRIB- UTORS TO BALLOT MEASURE CAM- PAIGNS THAT HAVE NO POSSIBILITY OF QUID PRO QUO CORRUPTION A. THIS CASE RAISES IMPORTANT ISSUES OF FEDERAL LAW RE- GARDING THE APPLICATION OF DISCLOSURE RULES IN THE BAL- LOT MEASURE CONTEXT TABLE OF CONTENTS — Continued Page B. THE CONSTITUTIONALITY OF LAWS MANDATING DISCLOSURE IN THE BALLOT MEASURE CON- TEXT IS A RECURRING ISSUE OF SIGNIFICANT IMPORTANCE ACROSS EE RIOR UE ov iecceecentscvcsarcarnieicvecvess. 26 ee arins ss sana clecsciscoseceeenies duvack buaskansones 29 APPENDIX Independence Institute v. Mike Coffman, No. 07CA1151, slip op. (Colo. Ct. App., Nov. 26, I lok saucaisucci ssdsbechsavacedatasaissaaaniossqeasiumauaiaes App. 1 Independence Institute v. Mike Coffman, No. 05CV7604, slip op. (Colo. Dist. Ct., May 3, ieee der cast rearaes carioieua in tvelakineossmietiene an App. 33 Independence Institute v. Mike Coffman, No. 05CV7604, slip op. (Colo. Dist. Ct., Dec. 14, I aces cats sistance inate skid ma adan i danansonaceeonPiecaaeeess App. 40 In the Matter of the Complaint Filed By Richard Evans Regarding Alleged Campaign and Political Ftnance Violations by the Independence Institute and Vote No; It’s Your Dough, No. OS 20050020, Agency Decision I Pen NE ids ns csc ecu appiasaneianisdouiasasacaupencued App. 42 Independence Institute v. Richard Evans, et al., No. 05CV7604, slip op. (Colo. Dist. Ct., Oct. Rape RNa ae EO an ea Tae eRTn ee App. 83 - V1 TABLE OF CONTENTS - Continued Page Independence Institute v. Buescher, No. 2009SC26 (Colo., June 1, 2009) (Denial of Petition for I er CIEE seissciscesscncsicssescecovssecssasscesss App. 95 Fe, COIIET , BENOTIG. Linc cssceerccsesssescees eniieeenenaeeds App. 98 Se NE EE, EME EEE cicoscssvacascsscreccrxenecsevane App. 99 CoLo. REV. STAT. § 1-45-108 .............. ccc cece eeee ees App. 127 COLo. REV. STAT. § 1-45-1039 ................sceecseeeee App. 134 CoLo. REV. Stat. § 1-45-111.5.......... err veces dD, 1460 8 COLO. CODE REGS. § 1505-6(1)...................... App. 142 8 COLO. CODE REGS. § 1505-6(3)............ eevee App. 146 8 COLO. CODE REGS. § 1505-6(4)............ ee. App. 150 PITIGBAVIE OF POT COIGOPA 00.00.0005 cccecscrescveesceseeees App. 163 PTAGAVIG OF PUG TROISKAN..........00000s0sccessesussereees App. 175 House Bill 09-1153, Sessions Law of Colorado 2009, First Regular Session, 67th General Assembly ........ BRE Atala rac yeisaiuss saves Saco App. 181 > a. a A. ttl, ll, tla — — TABLE OF AUTHORITIES Page CASES Am. Civil Liberties Union v. Jennings, 366 PF, UD. BOGE CERIN LG. BETES ccsscccssvecivecrssesecsssens 13, 15 Broward Coalition of Condominiums, Home- owners Ass’ns & Cty. Orgs. Inc. v. Browning, 2008 U.S. Dist. LEXIS 91591 (N.D. Fla. Oct. Bs I ccrcacacucue tcc ddeenvhceeuokeuisen uve auskiaesaned aanecskneaks 18 Britt v. Supertor Court of San Diego, 574 P.2d Fe le BI chinisadkscinsthiseieniriesipinammentnamn 23 Brown v. Socialist Workers ’74 Campaign Comm., Ee Grae ET © IE chktk kvtesiniicsisnriesiaiticctasve 23, 26, 28 Buckley v. Am. Constitutional Law Found., FIRE Tee he es Se CI ibis cascnatsscenesscanscsvensenisetesessi 24 Buckley v. Valeo, 424 U.S. 1 (1976).................... passim California Pro-Life Council, Inc. v. Getman, 325 F.00 1086 (Sth Cir. ZOOS) .......ccccccocsseseccseses 24, 25 California Pro-Life Council, Inc. v. Randolph, OE Fee Be Ce Ok Ce BE hn aveiccenevccsszexssesessexinins 25 Canyon Ferry Rd. Baptist Church v. Unsworth, Cte ee EU d CCE CAE OOD ve cvanicccasssnasenssvanccen cons 29 Citizens Against Rent Control v. City of Berkley re FCI Fas aiec saccicvessccsiscvensscvotcssapacncscseiews 24 Ctr. For Individual Freedom, Inc. v. Ireland, 613 &. Supp. 24 777 (S.D.W.V. 2008) .oiccvcssscesssscesese 18 Davis v. Fed. Election Comm’n, _ US. __., ee Bs Gh | ern Vill TABLE OF AUTHORITIES — Continued Page Fed. Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986)............ eerie 15 Fed. Election Comm'n v. Wisc. Right to Life, ee re I IT Pe ccsaesssivsoncsencasesslhdscancccesesses 25 First Nat'l Bank v. Bellotti, 435 U.S. 765 (1978)....... 24 Human Life of Washington v. Brumsickle, 2009 U.S. Dist. LEXIS 4289 (W.D. Wash. Jan. 8, IS IRRR ipo SAG eromer os eR tl el eR 21 McConnell v. Fed. Election Comm’n, 540 U.S. ER GT SARIS BESO AR ON Ree TIED REE 15, 23, 25 McIntyre v. Ohio Elections Comm., 514 U.S. IT orcs rates idaas phan ca Gonsgnuieytoniceseuaombes condeeces passim NAACP v. Alabama, 357 U.S. 449 (1958).................. 23 Natl Right to Work Legal Defense & Educ. Found., Inc. v. Herbert, 581 F. Supp. 2d 1132 re I oto sce uae enna dues ape son ccadenavareuvwerteect 19 North Carolina Right to Life v. Leake, 525 F.3d Io occcscsaivcsecsasscainbedasenandininéncnis passim ProtectMarriage.com v. Bowen, 599 F. Supp. 2d Blk) ©) eR). : aia Caieunia aia tenvessel 27 Protect Marriage Washington v. Reed, No. 09- 5456BHS (W.D. Wash. July 29, 2009)..............0.. 27 Real Truth About Obama, Inc. v. Fed. Election Comm’n, 2009 U.S. App. LEXIS 17437 (4th er oe aeayuadessavestianepee 18 Shays v. Fed. Election Comm’n, 511 F. Supp. 2d ME ve cissccaiersseacsavcsvessachaneapevenconisnsbadones 16 TABLE OF AUTHORITIES — Continued Page Staats v. Am. Cuivil Liberties Union, 422 U.S. BUR CEE) ccesacciexsccce couadncsapscnadivdvendajenda ssa 13 U.S. v. Nat'l Comm. for Impeachment, 469 F.2d 1135 (2d Cir. 1972)...... caieapunacisuceel ane 13, 14, 15, 17 CONSTITUTIONAL PROVISIONS UF ee ST, NING, F va cksscsvecesicccsvcnoteasceeeee 1,2,8 ©) ce, COMET. GROIN, Fad Va Ob -ccsccencsesssserssacereeee 2,8 COLO. COOMBT. Gxt. dk Y LEE coccccccssccceccses tea a Os WO. A ee Co.Lo. Const. art. XXVIII, § 2(10)(a)....00000... ee COLO. CONST. art. AAV ILL, & BBM) ococccocccccccocserssces 7,18 CODES, REGULATIONS, RULES AND STATUTES 8 COLO. CODE RBG. S LODO CL) vccvscevascccvescssysessasanenl 3 8 CoLo. CODE REGS. § 1505-6(1.7(D))...........cccecsssscssscoeedDd 8 COLO. CODE REGS. § 1506-6(3S) ..............ccccccccessveesevvoostd § Coo. CODE REGS. & 1506-04) 5. cscceccsaccccascasccccepnseccnnan 8 CoLo. CODE REGS. § 1505-6(4.15) ............scecsccssessvcevestd BO UAC. 8 TES TB) ve cecicscnssivesdcdassackereiceeeeeeee l COLO. REV. BTAT. © 2-0 R ui iisccssssecissccnune cue 2,6, 8 COLO. REV. STAT. § 1-45-108(3)........... 6 Coo. REV. STAT. $ 1-46~EOGCG MD). ooceccccccvaccoscscaescten 6 COLO. BEV. BTAT. © 1-GO+ Ee ccivcssccccvesesssscancssanns ceuieal 2,6 COLO. REV. STAT. 9 1-43-E3 1B vcckccccececsinessuatsuss ee 2 TABLE OF AUTHORITIES — Continued Page I 2B ss sauusenussucopaneanaledooreus 1] Sup. Ct. R. 12(c)... aedencenssussiacec aes aan OTHER PUBLICATIONS Amy Bounds, Gay rights advocates picket Boulder Cineplex, Rocky MOUNTAIN News, Nov. 30, ne GEE SORES eae sno ee eee Associated Press, John Kerry Grills Belgium Ambassador Nominee Over Swift Boat Dona cd cadnesihececesccscnvess at John R. Lott, Jr. and Bradley Smith, Donor Disclosure Has Its Downsides: Supporters of California’s Prop. 8 Have Faced a Backlash, WALL ST. J., Dec. 26, 2008 .......... Seo CAO SP SOD 27 Political Committee Status, Supplemental Ex planation and Justification, 72 Fed. Reg. aoe ick si aaudrasacenneouuseuesinesieenesss 15 OPINIONS BELOW The decision of the Colorado Supreme Court denying certiorari was issued June 1, 2009, and is not reported in P.3d but is reprinted in the Appendix (“App.”) at 96. The decision of the Colorado Court of Appeals was issued November 26, 2008, and appears at 209 P.3d 11380. App. 1. The Colorado District Court’s order of May 3, 2007, granting Respondent’s motion for summary judgment and denying Peti- tioner’s motion for the same is reprinted at App. 33, but is not otherwise published. The Administrative Law Judge’s decision finding that Petitioner is not an “issue committee” appears at App. 42 and is not otherwise published. JURISDICTION Petitioner seeks review of the judgment and opinion issued by the Colorado Court of Appeals on November 26, 2008. This Court has jurisdiction pursuant to 28 U.S.C. § 1257(a) after the Supreme Court of Colorado denied Petitioner’s request for review by that court on June 1, 2009. — —__ ._-—- @ —— ee CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The First Amendment to the United States Constitution provides that “Congress shall make no NO law ... abridging the freedom of speech, or of the press....” U.S. CONST. amend. I. The Fourteenth Amendment states that “No State shall ... deprive any person of life, liberty, or property, without due process of law... .” U.S. CONST. amend. XIV, § 1. The Colorado Constitution includes the following definition: “Issue committee” means any person, other than a natural person, or any group of two or more persons, including natural persons: (I) That has a major purpose of supporting or opposing any ballot issue or ballot question; or (II) That has accepted or made contri- butions or expenditures in excess of two hundred dollars to support or oppose any ballot issue or ballot question. CoLo. Const. art. XXVIII, § 2(10)a); App. 105. Additional provisions of the Colorado Constitution regulate the contributions issue committees may accept and establish the reporting regulations to Which they are subject. These provisions are reproduced in the Appendix. COLO. CONST. art XXVIII; App. 99-126. Statutory provisions likewise impose contribution, expenditure and_ reporting conditions on issue committees. These provisions are reproduced in the Appendix. CoLo. REv. STAT. §§ 1-45- 108, 109, 111.5 (2008); App. 127-141. Finally, the Colorado Secretary of State has adopted regulations that affect the application of these constitutional and statutory provisions. These provisions are reproduced ° in the Appendix. 8 CoLo. CoDE Recs. § 1505-6(1), (3)- (4) (2006); App. 142-162. STATEMENT OF THE CASE The State of Colorado extends its campaign finance regulations far beyond what this Court’s precedents have allowed. This approach has resulted in inconsistent protections for free speech and association, varying from jurisdiction to jurisdiction. Under Colorado law, any group of persons “supporting or opposing” a ballot issue must comply with registration, administrative and_ reporting requirements regardless of whether the group’s primary or central purpose is campaign activity. The law thus imposes significant burdens on groups that wish to speak out about ballot issues. The law also denies contributors the right to engage in anonymous speech and association once they have contributed as little as $20 to the organization. Petitioner, the Independence Institute, a state-based policy organi- zation, became ensnared in the laws when it spoke out against two tax and finance referenda in 2005. A. Factual Background Peutioner Independence Institute (the “Institute”) is a non-profit policy research organization located in Colorado. App. 164. It has served the same mission since its founding over two decades ago: “educate the public about the benefits of the free market and the dangers of expansive government.” App. 2. Its educational work includes commenting on proposed legislation, including initiatives. App. 167. In the spring of 2005, the Colorado Legislature referred two taxing and financing issues — Referenda C and D —- to the November ballot. App. 2. Both referenda affected, to varying degrees, Colorado’s “Taxpayer Bill of Rights” (TABOR) and were designed to allow the state to keep and spend more money than it otherwise would have been able to under TABOR. App. 2. Believing the referenda would weaken TABOR, the Institute set out to educate the public about the State’s budget shortfall, TABOR’s benefits, and the referenda’s impact on taxes and government spending. App. 168-169. The Institute published issue papers and op-eds about the referenda and collected information about the measures (both pro and con) and made it available on a website, www.taxincrease. org. App. 168-169. It also aired three radio advertise- ments concerning the measures. The advertisements did not urge a vote for or against the referenda, or for anyone to contact any elected officials, but instead urged listeners to go to the taxincrease.org website. App. 169.’ Campaigns for and against the referenda were intense. On August 4, 2005, Richard Evans, a ' The texts of the advertisements are reproduced at App. 53-57. member of the campaign organization “Vote Yes on C and D,” filed a complaint against the Institute with the Colorado Secretary of State. App. 3. The complaint alleged that the Institute was an “issue committee” within the meaning of the Colorado Constitution and Colorado’s Fair Campaign Practices Act and therefore needed to comply with those laws and the regulations promulgated pursuant to them. App. 3. Under Article XXVIII of the Colorado Consti- tution, an “issue committee” is a corporation or group comprised of two or more persons “(I) That has a major purpose of supporting or opposing any ballot issue or ballot question; or’ (II) That has accepted or made contributions or expenditures in excess of two hundred dollars to support or oppose any ballot issue or ballot question.” CoLo. CONST. art. XXVIII, § 2(10)(a); App. 105. The definition’s use of the indefinite article “a” to modify “major purpose” means that organizations can have multiple major purposes, any one of which can trigger issue committee status. That is, the definition is not confined to organizations with a central organizing purpose of supporting or opposing ballot measures, but includes groups that occasionally engage in ballot measure advocacy. The law does not contain any guidance on how much “ Respondent has issued an administrative rule that interprets this provision in the conjunctive so that both sections (1) and (J) must be met before a group may be considered an “issue committee.” See 8 CoLo. CoprE Reus. § 1505-6 (1.7(b)), reproduced at App. 144. 6 ballot measure advocacy might establish “a major purpose” and thereby trigger the law’s registration and disclosure obligations. The consequences of being designated an “issue committee” under Colorado law are substantial. Issue committees must register with the Secretary of State; set up a separate bank account for contributions related to ballot issues; track and report their contributions, including names and addresses of each person who has contributed $20 or more; track and report any expenditures made and any obligations entered into by the committee; and track and report the employer and occupation of anyone who con- tributes more than $100 to the committee. CoLo. REV. STaT. § 1-45-108 & -109; App. 127-140. It must appoint a registered agent. COLO. REv. STAT. § 1-45- 108(3)(b); App. 132. In its registration statement, the organization must also disclose the specific “purpose or nature of interest of the committee,” and it may spend money only in connection with the ballot issues covered by that specific purpose, unless it amends its registration statement. CoLo. Rev. StaT. § 1-45- 108(3); App. 132.” ' As of the date of this Petition, Colorado law requires an issue committee to register with the State prior to accepting or making any contributions, so an organization that could be classified as an issue committee must predict in advance whether its activities include “a major purpose” of supporting or opposing a ballot measure. COLO. Rev. STaT. § 1-45-108(3); App. 132. However, as of September 1, 2009, issue committees must instead register within ten days of accepting or making (Continued on following page) The burden of complying with these rules made the matter very significant for the Institute, and it hired lawyers to defend against the complaint. App. 170. The complaint resulted in an administrative hearing because, under Colorado law, the mere accusation that an organization is an “issue com- mittee” automatically subjects that organization to an administrative hearing. See CoOLo. CONST. §art. XXVIII, § 9(2)(a); App. 121-122. After considering “the relative value assigned to the credible evidence,” the Administrative Law Judge concluded that the Institute was not an issue committee because of its long existence and variety of activities. App. 72. This evidence showed that the Institute did not have “a major purpose” of opposing Referenda C and D and the ALJ therefore dismissed the complaint. App. 82. Each party bore its own costs and fees. App. 82. B. Procedural Background Before the Institute prevailed in the adminis- trative hearings, it filed the present suit in Colorado state court against Respondent,’ the state official charged with enforcing the issue committee pro- visions, challenging the constitutionality of Colorado’s regulations. The Institute alleged, among other contributions or expenditures in excess of $200 to support or oppose any ballot measure. App. 182. * Mr. Evans was originally a defendant to this suit, but was voluntarily dismissed. things, that the definition of “issue committee” in the Colorado Constitution is vague and overbroad under the First and Fourteenth Amendments to the U.S. Constitution. App. 105-106. It also alleged that the disclosure requirements in COLO. REv. STAT. § 1-45- 108 represented an unconstitutional infringement on the right to engage in anonymous speech and association. App. 127-134.° The parties cross-moved for summary judgment. Before the motions were resolved, the Secretary issued “emergency” rules creating a new breed of regulated entity, “multi-purpose issue committees,” addressing organizations whose activities placed them between an unregulated organization and a fully regulated “issue committee.” 8 COLO. CODE REGS. § 1505-6(4.15) (2007); App. 157-158. The new rules modified, but did not remove, regulations on organizations whose sole major purpose was not the support or opposition of ballot measures. Under the Secretary’s rules, “multi-purpose issue committees” must (i) report only those contributions made to support or oppose a ballot issue, (11) segregate into separate accounts those contributions accepted to * Prior to the resolution of the administrative hearing, Respondent moved to dismiss the Institute’s claims on the basis of the doctrine of primary jurisdiction. App. 40. After the Administrative Law Judge dismissed the administrative complaint, the district court issued an order that denied the motion, but provided that “[the court’s}] determination in this action shall be limited to ... facial challenges and shall not extend to any as-applied challenges.” App. 40. 9 support or oppose a ballot issue, and (iil) for any general donations that are used for support of or opposition to a ballot issue, place them in a separate account and report them as contributions from the committee to itself. App. 157-158. The district court denied the Institute’s motion for summary judgment and granted Respondent’s motion. App. 33-39. The Institute appealed and the Colorado Court of Appeals upheld the district court’s conclusions on the substantive constitutional issues. App. 1-32. In particular, the court of appeals found that the use of the term “a major purpose” in the definition of “issue committee” did not render the provision unconstitutionally vague or overbroad. App. 12-20. In doing so, the court explicitly disagreed with the decision of the Fourth Circuit in North Carolina Right to Life v. Leake, 525 F.3d 274, 289 (4th Cir. 2008) (““NCRTL”). App. 13-20. In that case, the Fourth Circuit addressed a law that defined “political committee” using the term “a major purpose.” The Fourth Circuit concluded that this phrase was impermissibly vague and overbroad. NCRTL, 525 F.3d at 289-90. The Colorado court instead adopted the reasoning in the dissenting opinion of Judge Michael in NCRTL. See NCRTL, 525 F.3d at 328-29 (Michael, J., dissenting); App. 15-17. In particular, the Colorado court concluded that the law was not vague because, in identifying “a major purpose” or “the major purpose” of an organization, the government would consider the same evidence in determining whether’ ballot measure advocacy 10 constitutes a considerable or principal portion of the organization’s total activities. App. 17. The court noted that to determine whether an organization has “a major purpose” of engaging in ballot measure advocacy, the organization “could look to and compare” the purposes stated in its charter, articles of incorporation, and by-laws; the purposes of its activities and annual expenditures; and the scope of issues addressed in its print and_ electronic publications. App. 17. The court also concluded that the phrase “a major purpose” was not unconstitu- tionally overbroad because Respondent's “multi- purpose issue committee” rules, combined with the court’s fact-specific inquiry of its vagueness analysis, “provide sufficient guidance as to when a multi- purpose group has ‘a major purpose’ of supporting or opposing a ballot measure.” App. 19-20. The Colorado court also rejected the Institute’s anonymous speech claims. App. 23-28. The court concluded that the Institute had not presented any evidence that the compelled disclosure of its contributors would subject such contributors to threats, harassment, or reprisals from other govern- ment officials or private parties. App. 27. The Institute sought review at the Colorado Supreme Court, which, in a divided order, declined to review the appellate court’s decision. App. 96-97. Chief Justice Mullarkey and Justice Eid dissented and would have granted review on the questions of whether the definition of “issue committee” in Article XXVIII was vague or overbroad and whether the }] disclosure requirements violated the right to engage in anonymous speech and association. App. 96-97. e REASONS FOR GRANTING THE WRIT The decision of the Colorado Court of Appeals that the definition of “issue committee” in Article XXVIII of the Colorado Constitution was not vague or overbroad conflicts with this Court’s decision in Buckley v. Valeo, 424 U.S. 1, 79 (1976), which held that political committee regulation may only reach organizations whose central organizing purpose is “the nomination or election of a candidate.” The decision below also conflicts with, among others, the decision of the United States Court of Appeals for the Fourth Circuit in NCRTL, which held that this Court meant what it said in Buckley when it concluded that political committee regulation may only extend to organizations “the major purpose” of which is campaign related. Certiorari is therefore appropriate under Supreme Court Rule 12(b) & (c). This Court should also grant the Writ because the decision below concluded that Colorado’s registration and disclosure laws, which apply to issue committee donors, do not violate the right to engage in anonymous speech and association, an important question of federal law that has not been, but should be, settled by this Court. Alternatively, the decision below conflicts with this Court’s decision in McIntyre v. Ohio Elections Comm., 514 U.S. 334, 347 (1995), 12 which recognized that anonymous speech and asso- ciation are fundamental] rights and, outside of the candidate context, any regulations affecting them must be narrowly tailored to promote a compelling government interest. Put another way, there is an inherent tension between this Court’s decision in McIntyre and other cases protecting anonymous speech and dicta from other decisions from this Court discussing the informational value of such disclosure laws in the ballot measure context. This tension has led lower courts, including the court below, to grant such dicta primacy over the holdings of McIntyre and other cases. As on-line information regarding citizens’ political contributions to controversial ballot measures increasingly enables harassment and retribution by ideological opponents, it is now time for this issue to be definitively settled by this Court and Certiorari is therefore appropriate on this issue under Supreme Court Rule 12(c). 13 REVIEW IS REQUIRED BECAUSE THE LOWER COURT DID NOT FOLLOW THIS COURT’S DECISION IN BUCKLEY RE- GARDING THE DEFINITION OF POLIT- ICAL OR ISSUE COMMITTEE, CAUSING A SPLIT BETWEEN IT AND THE FOURTH CIRCUIT AND CREATING INCONSISTENT PROTECTIONS FOR FREE SPEECH ACROSS THE COUNTRY. A. BUCKLEY ESTABLISHED A CLEAR STANDARD FOR WHEN AN ORGANI- ZATION MAY BE REGULATED AS A POLITICAL OR ISSUE COMMITTEE. In Buckley, this Court considered the reporting requirements for “political committees” and others in Sections 434(a) and (e) of the Federal Election Campaign Act of 1971 (FECA). In so doing, this Court interpreted the term “political committee” to “only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate.” Buckley, 424 U.S. at 79. The Court adopted this interpretation from two lower court decisions construing the term “political committee” not to apply to organizations that do not campaign for candidates. /d. at 79 n.106 (citing U.S. v. Nat'l Comm. for Impeachment, 469 F.2d 1135, 1139-42 (2d Cir. 1972) and Am. Civil Liberties Union v. Jennings, 366 F. Supp. 1041, 1055-57 (D.D.C. 1973) (three-judge panel), vacated as moot, Staats v. Am. Civil Liberties Union, 422 U.S. 1030 (1975)). In each of those cases, the lower courts 14 narrowly defined “political committee” to apply only to those groups “organized or at least authorized by a particular candidate and whose principal focus is a specific campaign” in order to comply with Congress's primary concern in passing the law and to avoid “serious constitutional issues” that could result in a “dampening effect on first amendment rights and the potential for arbitrary administrative action.” Nat'l Comm. for Impeachment, 469 F.2d at 1140-42; see also Jennings, 366 F. Supp. at 1057 (concluding that the judges were “in full agreement” with the decision in National Committee for Impeachment). As the Second Circuit explained, this interpretation was necessary to ensure that “every position on any issue ... and any comment upon it in, say, a newspaper editorial or an advertisement would [not] be subject to proscrip- tion unless the registration and disclosure regulations of the Act in question were complied with.” Nat'l Comm. for Impeachment, 469 F.2d at 1142.’ The Institute does not argue that the political speech of organizations having “the major purpose” of nominating or electing candidates can be regulated in all instances or that the burden of such regulation cannot be accounted for in considering the constitutionality of government restrictions on political or issue committees. Rather, the Institute’s position is that the question of whether, or to what extent, an organization may be regulated as a political or issue committee should not even arise unless that organization has as its central purpose election related activities. In other words, having “the major purpose” is a condition precedent for political or issue committee status in the first place and an organization that does not have as its (Continued on following page) L5 This Court has continued to use the Buckley Jennings-National Committee for Impeachment inter- pretation of “political committee.” See Fed. Election Comm'n v. Mass. Citizens for Life, Inc., 479 U.S. 238, 262 (1986) (““MCFL”) (“[S]hould MCFL’s independent spending become so extensive that the organization’s major purpose may be regarded as campaign activity, the corporation would be classified as a _ political committee.”); McConnell v. Fed. Election Comm'n, 540 U.S. 93, 170 n.64 (2003) (citing Buckley). Similarly, the Federal Election Commission has recognized that this Court adopted the major purpose test because the test allowed the Court to avoid issues of vague- ness and overbreadth. See Political Committee Status, Supplemental Explanation and Justification, 72 Fed. Reg. 5595, 5597 (Feb. 7, 2007) (In Buckley, “the Supreme Court mandated that an additional hurdle was necessary to avoid Constitutional vagueness concerns; only organizations whose ‘major purpose’ is the nomination or election of a Federal candidate can be considered ‘political committees’ under the Act. The court deemed this necessary to avoid the central organizing principle campaign-related activities cannot be regulated as a political or issue committee at all In MCFL, this Court noted that MCFL was not a “political committee” under Buckley because its “central organizational purpose is issue advocacy, although it occasionally engages in activities on behalf of political candidates.” MCFL, 479 U.S. at 253 n.6. This Court also noted that, under the law at issue in that case, “all MCFL independent expenditure activity is regulated as though the organization’s major purpose is _ to further the election of candidates.” Jd. at 253 l6 regulation of activity ‘encompassing both issue dis cussion and advocacy of a political result.’”) (quoting Buckley, 424 U.S. at 79); see also Shays v. Fed. Election Comm'n, 511 F. Supp. 2d 19, 26 (D.D.C 2007) (noting that, “In Buckley, the Court addressed constitutional concerns that the statutory definition of ‘political committee’ was overbroad and, to the extent it incorporated the definition of ‘expenditure,’ vague as well.”). B. BUCKLEY’S STANDARD IS THE LAW IN THE SECOND AND FOURTH CIR- CUITS AND HAS BEEN APPLIED BY FEDERAL DISTRICT COURTS ACROSS THE COUNTRY. It should come as no surprise then that when the Fourth Circuit addressed a state statute that diluted this requirement for political committees, the court struck it down as vague and overly broad. In NCRTL, the court examined a_ state statute that, like Colorado’s Article XXVIII, extended “political com mittee” status to any two or more individuals who have “a major purpose to support or oppose the nom ination or election of one or more clearly identified candidates.” NCRTL, 525 F.3d at 286. Like the Institute, the plaintiffs in NCRTL argued that the use of the definite article was crucial to the constitutionality of the statute and that extending political committee regulation to a group that had more than one major purpose of supporting or 17 opposing the nomination of a clearly defined candi- date violated this Court’s decision in Buckley. As the Second Circuit did in National Commuttee for Impeachment, the Fourth Circuit concluded that the term “political committee” must be defined in a narrow way if the government is to avoid vagueness and overbreadth problems. The Fourth Circuit noted that: If organizations were regulable merely for having the support or opposition of a candidate as “a major purpose,” political committee burdens could fall on organi- zations primarily engaged in speech on political issues unrelated to a particular candidate. This would not only contravene both the spirit and the letter of Buckley’s “unambiguously campaign related” test, but it would also subject a large quantity of ordinary political speech to regulation. Id. at 287-288 (emphasis in original). The court held that “we are convinced that the Court in Buckley did indeed mean exactly what it said when it held that an enti:y must have ‘the major purpose’ of supporting or opposing a candidate to be designated a political committee.” Jd. at 288 (emphasis in original). The court then concluded that, unless Buckley’s holding is strictly adhered to, it would be impossible for organizations to know when one of their purposes was sufficiently “major” to bring them within the reach of the statute and that such an amorphous law would leave such groups subject to partisan or 18 ideological abuse. Id. at 290.° This reasoning applies with even greater force to Colorado’s law, because groups supporting or opposing ballot measure issues are, by definition, engaged in issue advocacy. Other decisions have likewise held that only those groups with a central organizing purpose of campaigning can be required to become political committees. See Real Truth About Obama, Inc. v. Fed. Election Comm'n, No. 08-1977, 2009 WL 2408735 at *6 (4th Cir. Aug. 5, 2009) (“The major purpose test is intended to exempt from regulation organizations that expend or contribute money for express advocacy but do not have as the major purpose of their existence the election or defeat of a particular can- didate.”); Ctr. for Individual Freedom, Inc. v. Ireland, 613 F. Supp. 2d 777, 795 (S.D.W.V. 2009) (applying NCRTL and holding that a statute that applied political committee status to organization “the purpose” of which was campaign-related meant the law was more narrow than the law at issue in NCRTL); Broward Coalition of Condominiums, Homeowners Ass’ns & Cty. Orgs. Inc. v. Browning, 2008 U.S. Dist. LEXIS 91591, at *41 (N.D. Fla. Oct. 29, 2008) (applying * The exposure to such partisan or ideological abuse is compounded in Colorado because of the law’s requirement that a complaint automatically result in an administrative hearing. See CoLo. Const. amend. XXVIII, § 9(2)(a); App. 121-122. Thus, the mere accusation that an organization is an “issue committee” subjects that organization to a burdensome administrative hearing, and depending on the result of that hearing, significant administrative, disclosure, and reporting requirements. 19 NCRTL and holding that “The Supreme Court has made absolutely clear that the burdensome structural and reporting requirements that apply to PACs may only be visited on groups ‘the major purpose of which is the nomination or election of a candidate.’”) (quoting Buckley, 424 U.S. at 79)); Natl Right to Work Legal Defense & Educ. Found., Inc., 581 F. Supp. 2d 1132, 1153 (D. Utah 2008) (applying NCRTL and concluding that, “Utah does not even attempt to comply with Buckley’s ‘major purpose’ requirement, and has pushed the reach of political committee regulation beyond constitutional limits.”). C. THE DECISION BELOW CONFLICTS WITH THE FOURTH CIRCUIT’S DE- CISION IN NCRTL AND ESTABLISHES AMBIGUOUS, OVERLY BROAD STAN- DARDS THAT CAN HAVE GRAVE CON- SEQUENCES FOR FREE SPEECH ACROSS THE COUNTRY. Nonetheless, despite this Court’s and the lower federal courts’ clear guidance that only organizations whose principal focus is unambiguously campaign focused may be constitutionally regulated as political committees, the State of Colorado extends its cam- paign finance regulations to organizations with only “a major purpose of supporting or opposing any ballot issue or ballot question.” COLO. CONST. art. XXVIII, § 2(10)(a). The Colorado Court of Appeals found that this formulation was not vague or overbroad. App. 10- 20. In so doing, the court adopted the dissenting view 20 of Judge Michael in NCRTL, who concluded that there was nothing in Buckley that saia that the definite article was required. NCRTL, 525 F.3d at 309 (Michael, J., dissenting); App. 15. The court did not, presumably because it could not, state what weight multi-purpose organizations such as the Institute (or its ideological or political opponents when they seek to have the Institute declared an “issue committee”) are to give to each factor, nor did the court explain how to determine when an organization has too many factors weighing against it, or how long these factors must be in place, before an organization is transformed into an issue committee.’ But the court of appeals’ test, like Judge Michael’s test in NCRTL, ignores the fact that speakers, such as the Institute, must be able to determine in advance not whether they, themselves, * The court also concluded that the last-minute rules issued by Respondent limited the disclosure and _ termination requirements for “multi-purpose issue committees” and over- came any problems with overbreadth in the law. App. 19. However, these standards merely altered the consequences of regulation; they did not change the fact that the law expands far beyond the organizations this Court said could be regulated as political committees in Buckley. In other words, Respondent’s regulations merely attempt to mitigate the severity of the constitutional violation; they do not cure it. Indeed, Respon- dent’s last-minute regulations actually demonstrate how amorphous and prone to abuse the Colorado law’s standards are. The fact that Respondent felt compelled to adopt regulations radically altering the extent and consequences of the law itself suggests that the law sets no concrete, easily comprehensible standards. 21 think they have a major purpose, but whether, as a matter of law, they do. The legal consequences of hav'«.g “a major purpose” may be determined by the government or potential complainants regardless of what the Institute itself concludes about its activities. None of the court of appeals’ test, Judge Michael’s dissent, or the approach taken by the ALJ provide any objective or predictable means of deciding whether a group is an issue committee before an enforcement action may be brought against it. In other words, the question of whether one of a groups purposes is “major” is a matter of opinion, while the question of whether a group’s primary organizing principle is campaigning is not. Even with the clear impact on free speech and free association inherent in such an amorphous standard, the decision below is not the only case rejecting NCRT'L. The Colorado court’s approach is similar to the conclusion adopted by another federal district court. See Human Life of Wash. v. Brumsickle, 2009 U.S. Dist. LEXIS 4289 (W.D. Wash. Jan. 8, 2009) (adopting Judge Michael’s dissent in NCRTL and concluding that any vagueness problems can be addressed because “parties can request prior inter- pretations from” the regulatory agency). That case is currently on appeal before the Ninth Circuit. The decision below thus conflicts with the narrowing interpretation adopted by this Court and employed by the Fourth Circuit. Unless this split is resolved, the residents of some states, like Colorado and Washington, will be subject to vague, overbroad 22 regulations on their ideological and issue-oriented activities in a way that residents of other states, such as North Carolina and Florida, are not. But the First Amendment mandates that the entire country be able to engage in free speech and free association without having to guess as to when one of their “major purposes” pushes them too far towards regulation. This Court’s review is therefore necessary to (i) reaffirm that only organizations that have election- related activities as their central organizing purpose are subject to regulation as political or issue com- mittees, and (ii) to provide clear standards to protect free speech and association for issue-oriented organizations across the entire nation. il. REVIEW IS NECESSARY TO RESOLVE WHETHER THE GOVERNMENT MAY REQUIRE DISCLOSURE OF CONTRIB- UTORS TO BALLOT MEASURE CAMPAIGNS THAT HAVE NO POSSIBILITY OF QUID PRO QUO CORRUPTION. A. THIS CASE RAISES IMPORTANT IS- SUES OF FEDERAL LAW REGARDING THE APPLICATION OF DISCLOSURE RULES IN THE BALLOT MEASURE CONTEXT. This case implicates two disparate themes in this Court’s free speech jurisprudence. First, in McIntyre v. Ohio Elections Commission, this Court struck down a law that required the 23 disclosure of one’s identity on written election communications. 514 U.S. 334, 357 (1995). This Court held that individuals have a right to anonymous speech and that a law requiring them to disclose their views on controversial issues violated that right. Jd. “([A]ln author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amend- ment.” Jd. at 342. This Court also emphasized the importance of anonymity in protecting the rights to speech and association. “Anonymity is a shield from the tyranny of the majority” that “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society.” Id.; see also Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S. 87, 92 (1982); NAACP v. Alabama, 357 U.S. 449, 462 (1958); Britt v. Superior Court of San Diego, 574 P.2d 766, 771 (Cal. 1978) (noting that “numerous cases establish that compelled disclosure of an individual’s private associational affiliations and activities ... poses one of the most serious threats to the free exercise of this constitutionally endowed right.”). Second, this Court has nonetheless upheld various mandatory disclosure requirements for contributions in political candidate elections. See, e.g., McConnell, 540 U.S. at 196-99; Buckley, 424 U.S. at 68 (assuming that “disclosure requirements certainly 24 in most applications appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption Congress found to exist”). This Court has not, however, specifically addressed whether the mandatory disclosure of political contributions in the ballot measure context is constitutionally permissible. This Court has suggested in dicta, though, that disclosure in such circumstances may be valuable “so that the people will be able to evaluate the arguments to which they are being subjected.” First Nat'l Bank v. Bellotti, 435 U.S. 765, 792 n.32 (1978); accord Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 203 (1999); Citizens Against Rent Control v. City of Berkley, 454 U.S. 290, 299-300 (1991). This was despite this Court’s recognition that ballot measure elections do not present the same opportunity for quid pro quo corruption present in candidate elections and that the government has less interest in regulating speech in such circumstances. Sev, e.g., Bellotti, 435 U.S. at 790 (“The risk of corruption perceived in cases involving candidate elections ... simply is not present in a popular vote on a public issue.”). The court below found the dicta from Bellotti, American Constitutional Law Foundation, and Citizens Against Rent Control, to be more persuasive than the reasoning of McIntyre. App. 26-27." The Colorado The court was also persuaded by the Ninth Circuit’s decision in California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1161 (9th Cir. 2003), which held that express ballot (Continued on following page) 25 court held that, because the Institute had not demon- strated that compelled disclosure of its contributors would subject them to threats, harassment or reprisals from government officials or private parties, the Colorado statute was constitutional. App. 27. The court never examined whether the government had met its burden of demonstrating either a compelling government interest in disclosure or whether the Colorado statute was narrowly tailored to achieve that interest. See Fed. Election Comm’n v. Wisc. Right to Life, Inc., 551 U.S. 449, 464 (2007) (“[T]he Govern- ment must prove that applying [the law] furthers a compelling governmental interest and is narrowly tailored to achieve that interest.”) (emphasis in original). The inherent tension between this Court’s decision in McIntyre, on one hand, and the holdings of McConnell and Buckley and the dicta discussed above, on the other, has led courts, such as the court below, to give primacy to disclosure over the fundamental right to engage in anonymous speech and association in the ballot measure context. The measure advocacy may be regulated, provided that the state has a compelling interest and that the regulations are narrowly tailored to advance the relevant interest. App. 27. The Ninth Circuit, after remanding Getman, ultimately concluded that disclosure of contributions to organizations promoting ballot measures was supported by a compelling government interest and that California’s regulations were narrowly tailored to achieve that interest. Cal. Pro-Life Council, Inc. v. Randolph, 507 F.3d 1172, 1178-87 (9th Cir. 2007). 26 Institute believes that this tension fundamentally undermines the rights recognized in McIntyre and this Court should resolve this disparity by rec- ognizing, as it has in the past, that ballot measure elections do not present the same concerns about quid pro quo corruption that candidate elections do and that the government’s interest in disclosure recognized in Buckley applies only to candidate elections. See Brown, 459 U.S. at 92 (stating that the Court in Buckley found three interests sufficient to justify mandatory disclosure: “enhancement of voters’ knowledge about a candidate’s possible allegiances and interests, deterrence of corruption, and the enforcement of contribution limitations.”)'' B. THE CONSTITUTIONALITY OF LAWS MANDATING DISCLOSURE IN THE BALLOT MEASURE CONTEXT IS A RECURRING ISSUE OF SIGNIFICANT IMPORTANCE ACROSS THE COUNTRY. Two recent trends have highlighted’ the importance of this Court’s resolving the tension in its precedents in favor of affirming the fundamental First Amendment right to anonymous speech and association in the ballot measure context. First, ' This Court recently affirmed that preventing corruption or the appearance of corruption is the only legitimate and compelling government interest thus far identified for restricting campaign finances. Davis v. Fed. Election Comm'n, __ U.S. ___, 128 S. Ct. 2759, 2773 (2008). 27 technological developments have lowered the cost of identifying one’s political opponents and publicizing their identities. Second, ballot measures often involve the most controversial issues of the day, including same-sex marriage, government assistance for undocumented immigrants, assisted suicide, and embryonic stem cell research. In combination, these two trends have produced conscious efforts to chill speech. Advocates have begun using the disclosure informaticn posted on government websites to launch campaigns of harassment and retribution against contributors to the opposing side in controversial ballot campaigns. See Protect Marriage Washington v. Reed, No. 09-5456BHS (W.D. Wash. July 29, 2009) (granting temporary restraining order against dis- closure of individuals’ identities who oppose gay marriage); ProtectMarriage.com v. Bowen, 599 F. Supp. 2d 1197, 1199-1205 (E.D. Cal. 2009) (documenting the retaliation faced by supporters of California’s recent Proposition 8, including death threats, harassing emails and phone calls, broken windows, and economic retaliation); John R. Lott, Jr. and Bradley Smith, Donor Disclosure Has Its Downsides: Supporters of California’s Prop. 8 Have Faced a Backlash, WALL SY’. J., Dec. 26, 2008; Amy Bounds, Gay rights advocates picket Boulder Cineplex, Rocky MOUNTAIN NEws, Nov. 30, 2008 (business picketed and boycotted based on CEO’s personal donation); Associated Press, John Kerry Grills Belgium Ambassador Nominee Over Swift Boat Donation, Feb. 28, 2007 (“A Senate hearing that began with glowing tributes to a St. 28 Louis businessman and his qualifications to become ambassador to Belgium turned bitterly divisive Tuesday after he was criticized for supporting a controversial conservative group.”). The potential for such harassment increases in the ballot measure context because, unlike a contribution to a candidate, a contribution to a ballot measure committee directly discloses the contributors’ views on what may be an extremely contentious issue, raising the chances that ideological opponents will use that information to select specific targets for harassment. See Brown, 459 U.S. at 96 n.14 (“The preservation of unorthodox political affiliations in public records substantially increases the potential for harassment above and beyond the risk that an individual faces simply as a result of having worked for an unpopular party at one time.”). This trend certainly suggests that this Court’s conclusion in Buckley that disclosure imposes a minima] infringe- ment on the right of association simply does not apply in the ballot measure context, especially in light of recent technological changes. The easy accessibility of information about one’s political leanings, address, employer, and occupation, and the increasing abuse of that information, makes review by this Court all the more pressing. The lower courts have been applying contradictory standards and generally failing to give the right to engage in anonymous speech and association its proper respect. At the very least this Court should grant the petition here, vacate the decision of the Colorado Court of Appeals, and remand this case to the trial court with OQ instructions to consider whether Respondent can demonstrate a compelling government interest in the disclosure of contributors to ballot measure cam- paigns and whether, or to what extent, Colorado’s law is narrowly tailored. See Canyon Ferry Rd. Baptist Church v. Unsworth, 556 F.3d 1021, 1034 (9th Cir. 2009) (striking down the application of Montana’s disclosure laws for “incidental committees” in the ballot measure context where organization’s election related activities were de minimis). CONCLUSION For the reasons stated, Petitioner Independence Institute respectfully requests that this Court grant its petition for certiorari. Respectfully submitted, INSTITUTE FOR JUSTICE WILLIAM H. MELLOR WILLIAM R. MAURER?* STEVEN M. SIMPSON 901 North Glebe Road, Suite 900 Arlington, VA 22203 (703) 682-9320 ( ‘ounsel for Petitioner “( ‘OUNS« l of Record August 31, 2009 App. ] COLORADO COURT OF APPEALS Court of Appeals No.: 07CA1151 City and County of Denver District Court No. 05CV7604 Honorable Herbert L. Stern, III, Judge Independence Institute, a Colorado non-profit corporation, Plainitff-Appellant, V. Mike Coffman, in his official capacity as Secretary of State of the State of Colorado Appellee. JUDGMENT AFFIRMED Division I] Opinion by: JUDGE TAUBMAN Carparelli, J., concurs Connelly, J., specially concurs Announced: November 26, 2008 Jackson Kelly PLLC, Shayne M. Madsen, Denver, Colorado; William H. Mellor, III, Steven M. Simpson, Arlington, Virginia, for Plaintiff-Appellant John W. Suthers, Attorney General, Maurice G Knaizer, Deputy Attorney General, Monica M App. 2 Marquez, Assistant Solicitor General, Denver, Colorado, for Appellee. In this campaign finance law dispute, plaintiff, the Independence Institute, appeals the summary judgment entered by the trial court in favor of Mike Coffman, in his official capacity as Secretary of State of Colorado. Because we conclude the definition of “a major purpose” in article XXVIII, section 2(10), of the Colorado Constitution is not unconstitutionally vague or overbroad on its face, we affirm the trial court’s judgment. I. Background Founded in 1985, the Independence Institute is a nonprofit policy research organization located in Golden, Colorado. Its purpose is “to educate the public about the benefits of the free market and the dangers of expansive government.” To do so, the Independence institute provides policy makers, legislators, business leaders, the media, and Colorado citizens with educational materials about policy issues with which it is concerned. In the spring of 2005, the General Assembly referred two tax and financing issues — Referenda C and D — to the November ballot. Referendum C would allow the state to retain revenues over a five-year period that would otherwise have to be refunded to taxpayers under the Taxpayer Bill of Rights (TABOR), Colo. Const. art. X, § 20. Referendum D was intended to work in_ conjunction’ with App. 3 Referendum C, allowing the state to issue bonds for certain projects and to trigger provisions in Refer- endum C to allow the state to spend an additional $100 million each year if Referendum D passed. Amid wide-ranging campaigns supporting and opposing the adoption of Keferenda C and D, the Independence Institute, through its fiscal policy center, initiated an education campaign to inform the public about the impact of Referenda C and D on taxes and government spending. As part of its edu- cation campaign, the Independence Institute aired three radio commercials, which provided information on the tax implications of Referendum C, directed listeners to a website to learn more information, but did not explicitly ask listeners to vote yes or no on the referendum. Subsequently, the voters approved Referendum C but not Referendum D. This dispute began in August 2005 when Richard Evans, an agent of “Vote Yes on C and D,” an issue committee promoting the adoption of statewide refer- enda during the 2005 election, filed an administrative complaint with the Secretary of State. Evans alleged that the Independence Institute was an _ issue committee opposed to those referenda and had failed to comply with registration, reporting, and disclosure requirements of article XXVIII and the Fair Cam- paign Practices Act (FCPA), sections 1-45-101 to -113, C.R.S. 2008. As required by section 9(2)(a) of article XXVIII, the Secretary referred Evans’s complaint to the Office of Administrative Courts for an adminis- trative hearing. App. 4 While the administrative proceedings were pend- ing, the Independence Institute filed this lawsuit against Coffman’s predecessor, alleging constitutional challenges to article XXVIII and the disclosure pro- visions of the FCPA. The trial court denied the Independence Institute’s request for preliminary injunction to enjoin the administrative hearing scheduled for October 12, 2005. Accordingly, the administrative hearing went forward, and a few days after the election, the administrative law judge (ALJ) issued a decision concluding that the Independence Institute was not an “issue committee” with respect to its activities concerning Referenda C and D and therefore had not violated the registration and disclosure provisions in article XXVIII or the FCPA. Notwithstanding its favorable decision from the ALJ, the Independence Institute pursued this litiga- tion, maintaining that the constitutional and statu- tory provisions at issue were unconstitutional on their face. In May 2007, the district court granted summary judgment in favor of Coffman on all of the Independence Institute’s claims. Issue Committee Provisions Article XXVIII establishes Colorado’s campaign and political finance laws as constitutional provi- sions. The purpose of the article is to require certain disclosures of contributions madc to influence election outcomes not only as to political candidates, but as to ballot issues as well. See Colo. Const. art. XXVIII, § 1. App. 5 The requirements ensure that large contributions made to influence election outcomes are not con- cealed, and that special interest groups cannot dis- proportionately influence elections outcomes. Id; see also Colorado Citizens for Ethics in Gov't v. Comm. for Am. Dream, 187 P.3d 1207, 1215-16 (Colo. App. 2008) (CCEG). Article XXVIII defines an issue committee as: any person, other than a natural person, or any group of two or more persons, including natural persons: (I) [tlhat has a major purpose of supporting or opposing any ballot issue or ballot question; or (II) [t]hat has accepted or made contributions or expenditures in excess of two hundred dollars to support or oppose any ballot issue or ballot question. Colo. Const. art. XXVIII, § 2(10)(a) (emphasis added). By regulation, Coffman has interpreted the empha- sized word “or” to mean “and.” See Sec’y of State Campaign & Political Finance Rules 1.7, 8 Code Colo. Regs. 1505-6. When an organization is deemed an issue committee, it must fully comply with reporting requirements set forth in article XXVIII and the FCPA. Among the requirements, all issue committees must register witn the Secretary of State before accepting or making any contributions and disclose the name and address of each person who contributed App. 6 $20 or more, including the occupation and employer of each person who has made a contribution of $100 or more. § 1-45-108(1)(a)(1)-(II), C.R.S. 2008. All issue committees must regularly report to the Secretary of State the balance of funds at the beginning of the reporting period, the amounts of contributions received, and expenditures made during the reporting period. § 1-45-108(2)(b), C.R.S. 2008. Additionally, “[a]ln issue committee shall be con- sidered open and active until [it] affirmatively” termi- nates its designation as an issue committee with the state. Colo. Const. art. XXVIII, § 2(10)(c). The provisions at issue here concern “multi- purpose issue committees.” Although that term is not defined in article XXVIII, it was defined in a regu- lation adopted by the Secretary of State after the ALJ issued her administrative ruling but before the district court ruled on the parties’ cross-motions for summary judgment. The regulation defines a multi- purpose issue committee as “an issue committee whose purposes are not limited to supporting or opposing ballot issues or ballot questions.” See Secretary of State Campaign & Political Finance Rules 3.8, 8 Code Colo. Regs. 1505-6. The parties here agree that the Independence Institute is not a single- purpose issue committee. The questions before us now relate only to the propriety of the trial court’s summary judgment. Neither the trial court’s denial of the Independence Institute’s motion for preliminary injunction nor the App. 7 ALJ’s decision in favor of the Independence Institute is before us here. III. Standard of Review We review a trial court’s grant of summary judgment de novo. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251, 1526 (Colo. 1995). Summary judgment is appropriate only if the pleadings and supporting documents demon- strate there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id.; see C.R.C.P. 56(c). Interpretation of a constitutiona! provision is a question of law that we review de novo. Rocky Mountain Animal Defense v. Colo. Div. of Wildlife, 100 P3d 508, 513 (Colo. App. 2004) (RMAD). In addition, since the judgment relates to political speech, we review the entire record “to ensure that the judgment rendered does not intrude on the right of free speech.” See Holliday v. Reg’l Transp. Dist., 43 P.3d 676, 681 (Colo. App. 2001). IV. Vagueness and Overbreadth The Independence Institute argues that Colorado Constitution article XX VITI, § 2(10)(a), which defines “issue committee,” is unconstitutionally vague and overbroad on its face. We disagree. In construing a constitutional amendment, we must ascertain and give effect to the intent of the App. 8 electorate adopting the amendment. Zaner v. City of Brighton, 917 P.2d 280, 283 (Colo. 1996); CCEG, 187 P.3d at 1215 (citing RMAD, 100 P.3d at 513-14). To determine that intent, we first look at the plain and ordinary meaning of the words in the amendment without engaging in narrow or overly technical constructions. RMAD, 100 P.3d at 514. We may also discern the electorate’s intent by considering the ballot title, the submission clause, the Bluebook, and other materials. Jd. Moreover, if the language is ambiguous or reasonably susceptible of more than one interpretation, then we consider the objective to be accomplished and the “mischief to be avoided.” Zaner, 917 P.2d at 283. Finally, we must consider the amendment as a whole, and if possible, interpret the provision in harmony with other provisions to avoid a conflict. Jd. General rules of statutory construction apply when interpreting citizen-initiated measures. RMAD, 100 P.3d at 514; see also Bickel v. City of Boulder, 885 P.2d 215, 228 n.10 (Colo. 1994) (courts may interpret citizen-initiated measures using the general rules of statutory construction); Nevada Tax Comm’n uv. Bernhard, 683 P.2d 21, 23 (Nev. 1984) (laws approved by referendum are interpreted using general rules of statutory construction). State constitutional provisions that violate federal constitutional law can be held invalid facially or as applied. Alliance for Colorado’s Families v. Gilbert, 172 P.3d 964, 968 (Colo. App. 2007). As- applied constitutional challenges attempt to App. 9 invalidate a law only in the circumstances in which a party has acted or proposes to act; thus, a law that is held invalid as applied is not rendered completely inoperative. Sanger v. Dennis, 148 P.3d 404, 410 (Colo. App. 2006). In contrast, a party who brings a facial challenge must establish that the law is invalid in all respects and cannot be constitutionally applied in any circumstance. /d. at 411. A party challenging a constitutional amendment must show it to be unconstitutional beyond a reasonable doubt. Evans v. Romer, 854 P.2d 1270, 1274 & n.6 (Colo. 1993) (presumption of constitutionality of amendment to Colorado Constitution is more forceful than similar presumption with respect to statutes, in recognition of “the broad powers which our state constitution places in the people”); People ex rel. Tate v. Prevost, 55 Colo. 199, 134 P. 129 (1913). We are also mindful that facia] challenges are disfavored. Wash. State Grange v. Wash. Republican Party, __ U.S. ___, 128 S.Ct. 1184, 1191, 170 L.Ed.2d 151 (2008). Facial challenges are disfavored because (1) courts may be forced to rely on speculation, (2) there is a risk of premature statutory interpretation, (3) courts may have to anticipate questions of constitutional law when unnecessary, (4) courts may have to formulate constitutional rules broader than those required by the precise facts to which they would be applied, and (5) they may prevent the implementation of laws that embody the will of the people. /d. App. 10 As discussed below, we conclude that article XXVIII, §2(10)a) is neither facially vague nor overbroad. A. Vagueness Initially, the Independence Institute asserts that the trial court erred in using an improper standard of vagueness, rather than the stricter standard that applies in First Amendment cases. Coffman does not dispute that the trial court erred in this regard, but simply contends that the Independence Institute has not articulated how the stricter test dictates a different result here. Accordingly, we apply the stricter vagueness test applicable to First Amend- ment cases. A law that is unduly vague violates the Due Process Clause of the Fourteenth Amendment. Parrish v. Lamm, 758 P.2d 1356, 1367 (Colo. 1988) (citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497 (1982)). The vagueness doctrine helps to ensure that a law is sufficiently definite so that citizens will be alerted to the conduct that is proscribed and they may act accordingly, and so that the law will not be arbitrarily applied. Regency Services Corp. v. Bd. of County Comm'rs, 819 P.2d 1049, 1055 (Colo. 1991). A law is vague where persons of ordinary intelligence must necessarily guess as to its meaning and differ as to its application. People v. Gomez, 843 P.2d 1321, 1322 (Colo. 1993); People v. Becker, 759 App. 11 P.2d 26, 31 (Colo. 1988). However, laws concerning First Amendment protected activities are analyzed under stricter vagueness terms. Parrish, 758 P.2d at 1366 (citing Flipside, 455 U.S. at 498-99). The First Amendment demands specificity in a law so that individuals may assess the burden on their rights to free speech and free association and make informed decisions before acting. Common Sense Alliance ov. Davidson, 995 P.2d 748, 756 (Colo. 2000). We must construe a constitutional provision consistent with its purpose, “to avoid the shoals of vagueness.” See Buckley v. Valeo, 424 U.S. 1, 77-78 (1976). Because a constitutional provision must be specific enough to give fair warning of the proscribed conduct and, at the same time, be general enough to address the essential problem under varied cir- cumstances, due process does not require that the provision be drafted with mathematical exactitude. See People ex rel. City of Arvada v. Nissen, 650 P.2d 547, 550 (Colo. 1982). When reviewing a vagueness challenge, the court’s duty is to construe the challenged provision “so as to uphold its constitutionality whenever a reasonable and practical construction may be applied to the statute.” Loonan v. Woodley, 882 P.2d 1380, 1389 (Colo. 1994) (quoting People v. Buckallew, 848 P.2d 904, 907 (Colo. 1993)); see also Buckley, 424 U.S. at 77-78 (construing provisions of Federal Election Campaign Act of 1971 narrowly to avoid facial invalidity based on grounds of vagueness and overbreadth); Natl Right to Work Legal Defense & App. 12 Educ. Foundation, Inc. v. Herbert, _ F. Supp. 2d _, 2008 WL 4181336, at *13 (D. Utah Sept. 8, 2008) (similarly imposing narrowing construction on Utah election statutes). The Independence Institute contends that the definition of issue committee restricts freedom of speech and association because it provides no guidance as to when multi-purpose issue committees must comply with the constitutional and statutory registration, reporting, and disclosure provisions. More specifically, it asserts that the phrase “a major purpose” in article XXVIII, § 2(10)(a)(1) is uncon- stitutionally vague because it lacks the precision accorded the phrase “the major purpose” in Buckley. We disagree. Because article XXVIII does not define the phrase “a major purpose,” we first look at the ordinary and plain meaning of the phrase. While the Independence Institute focuses on the alleged vagueness of “a” and Coffman relies on the apparent clarity of “major” and “purpose,” we focus on the language of the entire phrase. This is the approach used by the United States Supreme Court in Buckley in defining “the major purpose” as the one, central purpose for which an organization is created. Buckley, 424 U.S. at 79. There is no dispute that the phrase “a major purpose” applies when a group has one central purpose to support or oppose a ballot initiative. However, the Independence Institute argues that for App. 13 groups that have multiple purposes, the deter- mination of whether one of those purposes is “major” requires a subjective determination of the relative status of that purpose. It argues that article XXVIII does not provide guidance to multi-purpose groups in this regard. Thus, it contends, a multi-purpose organization cannot determine whether any of its > « : ” . . purposes is “major,” thereby subjecting it to the registration, reporting, and disclosure requirements of article XXVIII and the FCPA. In Buckley, the IJnited States Supreme Court held that defining the phrase “the major purpose” to designate groups that have a single major purpose of campaigning is appropriate to ensure that all entities subjected to the burdens of political committee desig nation are engaged primarily in regulable, election- related speech. See North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274, 289 (4th Cir. 2008) (NCRL) In NCRL, the Fourth Circuit struck down as unconstitutionally vague the definition of political committee in a North Carolina statute that, like the constitutional provision at issue here, used the term “a major purpose.” The majority held that “if an organization explicitly states, in its bylaws or elsewhere, that influencing elections is its primary objective, or if the organization spends the majority of its money on supporting or opposing candidates, that organization is under ‘fair warning’ that it may fall within the ambit of Buckley’s test.” Id App. 14 However, the NCRL court concluded that the North Carolina statute “provides absolutely no direc- tion as to how North Carolina determines an organization’s ‘major purposes.’” Jd. The court noted that NCRL had many objectives other than sup- porting or opposing political candidates. /d Id The court continued In this sort of setting, it becomes difficult to understand when the “purpose” of sup porting or opposing a candidate becomes “a major purpose.” Is a purpose “major” if an organization has only one or two other purposes? Is there a share of total expen- ditures that determines when a purpose is “major”? An absolute dollar amount? Or perhaps frequency of participation is the relevant criteria: maybe if an organization engages in electoral advocacy three times during one election cycle then the support or opposition of a candidate is “a major pur- pose”? Given the vagueness of [the statute’s| test, it is hard to argue with the plaintiff’s contention that, in designating organizations as political committees, North Carolina is essentially handing out speeding tickets without “telling anyone . the speed limit.” at 290. Finally, the court noted that a party might persuaded not to exercise its right to engage be in political speech if faced with the costly and time- consuming process of complying with the state's App. 15 regulatory requirements. In _ short, it concluded, “(uJnguided regulatory discretion and the potential for regulatory abuse are the very burdens to which political speech must never be subject.” /d. In contrast, the dissenting judge in NCRL concluded that the phrase “a major purpose” was not unconstitutionally vague. According to the dissent, ‘ whether a regulator is identifying “a major purpose” or “the major purpose” of an organization, he or she considers the same evidence in determining whether electoral advocacy constitutes a considerable or principal portion of the organization’s total activities Thus, the dissent concluded, “an crganization is just as able to determine whether electoral advocacy comprises one of its major purposes as it is able to determine whether such activity is ‘the major purpose.” NCRL, 525 F.3d at 328-29 (Michael, J., dissenting) The dispute between the majority and the dissent in NCRL can be placed in context by considering the more recent opinion in National Right to Work Legal Defense & Education Foundation, Inc. v. Herbert, which reaffirmed “the major purpose” test in Buckley, and suggested that some regulation of protected speech might be constitutionally permissible. There, the federal district court struck down as_ uncon- stitutional a Utah statute that defines a “political issues committee” as an entity that makes any disbursements to influence. or to intend to influence. directly or indirectly a ballot proposal F. Supp. 2d at , 2008 WL 4181336, at * 17. The court held that App. 16 limiting the definition of “political issues committee” as in Buckley to entities whose primary or only activity is within the core of Congress’s power to regulate politically protected speech is not uncon- stitutional. It concluded, “[wlith such a _ broad definition, Utah does not even attempt to comply with Buckley’s ‘major purpose’ requirement, and has pushed the reach of political committee regulation beyond constitutional limits.” Jd. In CCEG, another division of this court recently interpreted the section of article XXVIII concerning electioneering communications. 187 P.3d at 1216. That division narrowly interpreted the “regular business” exception in section 2(7)(b)(III) in a manner consistent with the electorate’s intent in adopting it. Similarly, “a major purpose” can be applied to give effect to the electorate’s intent in adopting article XXVIII to require disclosure of contributions made to entities that exist to influence election outcomes as to ballot issues, and not to require disclosure of con tributions to entities that do not have such influence as a Major purpose. Here, article XXVIII uses “a major purpose” instead of Buckley’s “the major purpose.” Coffman argues, and we agree, that the phrase “a major purpose,” is not inherently vague. We perceive no basis to conclude that this phrase is invalid in all respects or that it cannot be constitutionally applied to any multi-issue committee. App. 17 To determine whether it has, as “a major purpose,” engaging in ballot advocacy, a multi-issue committee, for example, could look to and compare the purposes stated in its charter, articles of incor- poration, and by-laws; the purposes of its activities and annual expenditures; and the scope of issues addressed in its print and electronic publications. Constitutional provisions need not be so exact as to eliminate any need for such fact-specific analysis. Thus, the fact that a multi-purpose committee would have to look to its own circumstances does not render the phrase “a major purpose” unconstitutional. To the contrary, the obvious relevance and ready availability of such information means that any multi-issue committee can assess the burden on its rights to free speech and free association and make an informed decision before undertaking ballot advocacy. Here, the ALJ considered the length of time the Independence Institute had been in existence, its original purpose, its organizational structure, the various issues with which it had been involved, and the amount of money expended on the radio ads in proportion to its annual budget. The trial court relied on this fact-specific inquiry to address the Inde pendence Institute’s vagueness challenge. Accordingly, we conclude that the Independence Institute has not proved that the term “a major purpose” is invalid in all respects and cannot be con- stitutionally applied in any circumstances. Therefore, we conclude that article XXVIII is not uncon- stitutionally vague on its face. Thus, as a matter of App. 18 law, the trial court correctly granted Coffman’s motion for summary judgment on this issue. B. Overbreadth The Independence Institute similarly contends that the definition of issue committee in article XXVIII is unconstitutionally overbroad on its face because it reaches groups, like the Independence Institute, that do not have a single major purpose of opposing or supporting ballot initiatives. We disagree. A law is facially overbroad if it sweeps within its reach a substantial amount of activity that is con- stitutionally protected. People v. Shepard, 983 P.2d 1, 3 (Colo. 1999) (citing Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)). A law that substantially burdens speech and other protected First Amendment conduct is overbroad. Bd. of Educ. v. Wilder, 960 P.2d 695, 702-03 (Colo. 1998) (citing Broadrick, 413 U.S. 601); Aguilar v. People, 886 P.2d 725, 727 (Colo. 1994). Further, any party can bring an overbreadth facial challenge to protect the rights of third parties whose First Amendment rights may be “chilled” by the law. People ex rel. Tooley v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348, 355 (Colo. 1985). Normally, a facial overbreadth challenge must establish that no set of circumstances exists under which the act would be valid. Wash. State Grange v. Wash. State Republican Party, __ U.S. at __, 128 App. 19 S.Ct. at 1190. However, in the First Amendment context, a party may establish a law is facially overbroad when a “substantial number” of its appli- cations are unconstitutional in relation to the statute’s plainly legitimate sweep. /d. at __, 128 S.Ct. at 1191 n.6 (citing New York v. Ferber, 458 U.S. 747, 769-71 (1982)). A law will be invalidated when it threatens to deter others from engaging in First Amendment protected activities. People v. Ryan, 806 P.2d 935, 939 (Colo. 1991). We must be cautious in invalidating a law as facially overbroad and do so only as a last resort. Jd. (citing Broadrick, 413 U.S. at 613). The Independence Institute argues that article XXVIII is overbros on its face because if an entity erred on the side of caution, it would report itself as a multi-purpose issue committee and thereby be regulateJ in its activities that might not otherwise be regulable under the First Amendment. Conversely, if such an entity determined that it did not have a major purpose of ballot advocacy, yet participated in some ballot advocacy, it would then be subject to fines and penalties if il were later determined to fall under the definition of issue committee. As noted, Coffman promulgated rules to limit the disclosure and termination requirements for multi- purpose issue committees. Those rules, which define a “multi-purpose” issue committee, combined with the fact-specific inquiry discussed in our vagueness analysis, provide sufficient guidance as to when a App. 20 multi-purpose group has “a major purpose” of sup- porting or opposing a ballot measure. As so interpreted, article XXVIII, section 2(10)(a) does not sweep a substantial amount of protected speech within its application. We are aware that some multi-purpose organ- izations may decline to engage in ballot advocacy for fear of being subject to a complaint and attendant administrative proceedings; however, as the dissent in NCRL reasoned, we conclude that article XXVIII, section 2(10)(a), does not burden a_ substantial amount of constitutionally protected speech. NCRL, 525 F.3d at 289. Accordingly, we hold that the i1rdependence Institute has not proved the definition of issue committee is invalid in all respects and cannot be constitutionally applied in any circumstances. There- fore, we conclude that the definition is not unconstitutionally overbroad on its face. Thus, as a matter of law, the trial court correctly granted Coffman’s motion for summary judgment on this issue. V. Burdensomeness of Registration and Dis- closure Requirements The Independence Institute maintains that the registration and disclosure requirements contained in section 1-45-108 and article XXVIII, section 3(9) unconstitutionally burden First Amendment rights. App. 21 Although we conclude that the trial court erred in dismissing this claim on the basis that the Inde- pendence Institute lacks standing, we also conclude that this claim is now barred by an order of the trial court. The trial court rejected the Independence Institute’s contention “that the registration and reporting requirements of the FCPA are onerous and unduly burdensome because they disproportionately impact small educational groups and issue advocacy organizations.” It then concluded that while the Independence Institute had asserted a facial constitutional claim, upon closer examination the challenge was really an as-applied argument and therefore, the Independence Institute lacked standing to raise it. On appeal, the Independence Institute asserts that it had standing to bring this claim because standing is assessed at the time a lawsuit is filed, and, when the Independence Institute filed its complaint, it was subject to an actual, ongoing prosecution for violation of the FCPA’s reporting requirements. A party’s standing is assessed at the time a lawsuit is filed. Grossman v. Dean, 80 P.3d 952, 958 (Colo. App. 2003). Mootness, in contrast, requires courts to look at circumstances that have arisen after a complaint has been filed. See Clark v. City of Lakewood, 259 F.3d 996, 1006 (9tii Cir. 2001). App. 22 Here, the Independence Institute had standing to assert its claim when it filed the lawsuit because it was then subject to administrative proceedings on the basis of an alleged failure to comply with article XXVIII and the FCPA. Coffman has not asserted that this issue is moot, and therefore, we do not address the question of mootness. Nevertheless, Coffman argues that we should not address the Independence Institute’s claim on the merits because it is barred by an order of the trial court. We agree. On appeal, the Independence Institute has recast its claim regarding the burdensomeness of the registration and disclosure requirements. It now argues that article XXVIII, section 3(9) and section 1- 45-108 unconstitutionally burden groups, like the Independence Institute, that only occasionally engage in ballot issue advocacy but lack a central organizing or major purpose of supporting or opposing ballot issues. It no longer maintains that the reporting and registration requirements are unduly burdensome because they disproportionately impact small educational groups and issue advocacy organizations. However, on December 14, 2005, about one month after the ALJ’s decision, the trial court issued an order noting that the Secretary of State had withdrawn the motion to dismiss as it related to the Independence Institute’s facial constitutional chal- lenges. The court added “that its determination in App. 23 this action shall be limited to such facial challenges and shall not extend to any as-applied challenges.” On appeal, the Independence Institute now contends that the registration and disclosure re- quirements “are unconstitutional as-applied to multi- purpose issue committees.” Under these circumstances, we conclude that (1) the Independence Institute has modified this claim frorn a facial to an as-applied challenge to the registration and reporting require- ments, and (2) as an as-applied argument, it may not be raised for the first time on appeal. See Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 (Colo. 1992). Accordingly, we conclude, albeit for a different reason, that the trial court properly rejected the Independence Institute’s burdensomeness claim. See Stuart v. Bd. of County Comm’rs, 699 P.2d 978 (Colo. App. 1985) (court may affirm for reasons different from those stated by the trial court). VI. Violation of Right to Anonymous Speech and Association The Independence Institute contends that the disclosure requirements in section 1-45-108 violate the right to engage in anonymous speech and association by requiring those who contribute as little as $20 to support or oppose ballot issues to disclose their identities and addresses on the Secretary of State’s website and requiring those who contribute App. 24 $100 or more also to disclose their occupations and employers. We disagree. The United States Supreme Court has recognized that anonymous speech and association are fun- damental rights and, outside the context of campaign finance laws that apply to political candidates, a state must demonstrate a compelling interest and narrow tailoring to avoid infringing on those rights. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 3384, 343, 347, 357 (1995); Buckley, 424 U.S. at 64-66 (compelled disclosure implicates privacy of asso- ciation and belief); NAACP v. Alabama, 357 U.S. 449, 462 (1958). However, the Supreme Court has also recognized that while disclosure of contributions to candidates and parties may deter some potential contributors, and may even expose some to harassment and retaliation, disclosure requirements often appear to be the least restrictive means of curbirz the evils of campaign ignorance and corruption that Congress found to exist in enacting the Federal Election Campaign Act of 1971. Buckley, 424 U.S. at 68. Therefore, the Buckley Court required chal- lengers to disclosure requirements to show “a reasonable probability that the compelled disclosure of a party’s contributors’ names. would subject them to threats, harassment, or repris«ls from either Govern- ment officials or private parties.” Jd. at 74. The Supreme Court indicated that such proof could include specific evidence of past or _ present App. 25 harassment of members of an organization or harassment directed against the organization itself Id. While the Supreme Court has approved dis- closure requirements for contributors to political candidates, it has not expressly addressed the propriety of disclosure requirements for contributors to ballot initiatives and referenda. However, as discussed below, we conclude that dicta in several Supreme Court opinions and decisions of other courts support the conclusion that the Buckley standard should also apply to ballot initiatives and referenda. The Independence Institute contends that the McIntyre Court made clear that disclosure laws applicable in the context of political candidate elections do not apply in other contexts, such as the election referenda here. We agree with Coffman that the Independence Institute has given too expansive a reading to McIntyre. There, the Supreme Court struck down part of an Ohio law that required speakers to reveal their identity on handbills dis- tributed to the public and intended to influence the electoral process. Although the McIntyre Court held that such provision of the Ohio law was an impermissible direct regulation of the content of speech, it did not hold impermissible any statute requiring disclosure of contributors to ballot initiatives and referenda. On the contrary, it acknowledged such disclosure requirements favorably its dicta in First National App. 26 Bank v. Bellotti, 435 U.S. 765 (1978). There, the Supreme Court reversed a judgment of the Supreme Judicial Court of Massachusetts sustaining a state law that prohibited corporate expenditures designed to influence the vote on referendum proposals. 435 U.S. at 767. In McIntyre, the Court observed that in Bellotti, it had noted the prophylactic effect of requiring identification of the source of corporate advertising. More specifically, the McIntyre Court quoted as follows from Bellotti: “Corporate adver- tising, unlike some methods of participation in political campaigns, is likely to be highly visible. Identification of the source of advertising may be required as a means of disclosure, so that the people will be able to evaluate the arguments to which they are being subjected.” McIntyre, 514 U.S. at 354 n.18. Similarly in Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 299-300 (1981), the Supreme Court held, while striking down a $250 limit on contributions to committees formed to support or oppose ballot measures, that “[t]he integrity of the political system will be adequately protected if contributors are identified in a public filing revealing the amounts contributed; if it is thought wise, legislation can outlaw anonymous contributions.” In Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999) (ACLF), the Supreme Court struck down a provision of a Colorado statute requiring, among other things, that petition circulators wear identification badges. Nevertheless, the ACLF Court noted that “[t]hrough the disclosure App. 27 requirements that remain in place, voters are informed of the source and amount of money spent by proponents to get a measure on the ballot; in other words, voters will be told ‘who has proposed la measure], and ‘who has provided funds for its circulation.’” ACLF, 525 U.S. at 203. Further, other courts have expressly held that the Buckley standard applies to ballot initiatives and referenda. In California Pro-Life Council, Inc. 1 Getman, 328 F.3d 1088, 1101 (9th Cir. 2003), the court held that express ballot measure advocacy may be regulated, provided that the state has a compelling interest and that the regulations imposed are narrowly tailored to advance the relevant interest. See also Nat'l Right to Work Legal Defense & Educ. Foundation, _ F.Supp.2d at _—, 2008 WL 4181336, at *9; Richey v. Tyson, 120 F. Supp. 2d 1298, 1310 (S.D. Ala. 2000); Volle v. Webster, 69 F. Supp. 2d 171, 173-74 (D. Me. 1999). Based on the reasoning in the above cases, we conclude that the disclosure requirements contained in § 1-45-108 do not violate the right to engage in anonymous speech and association and that dis closure of the identity of contributors to ballot measures may constitutionally be required under the standards set forth in Buckley. Specifically, we note, as did the trial court, that the Independence Institute has not alleged that compelled disclosure of its contributors subjected them to threats, harassment, or reprisals from other government officials or private parties. Accordingly, we conclude that the trial court App. 28 did not err in rejecting the Independence Institute’s claim for relief on this issue Vil Attorney Fees The Independence Institute requests that, pur- suant to C.A.R. 39.5, we award it attorney fees “as provided for by Colorado law.” Because the Inde- pendence Institute has not prevailed in _ this litigation, we deny its request The judgment is affirmed JUDGE CARPARELLI concur: JUDGE CONNELLY specially concurs JUDGE CONNELLY specially concurring. The majority upholds Colorado’s financial dis- closure requirements on “issue committees” sup- porting or opposing ballot issues. I concur in the results reached by the majority but write separately because my analysis differs in some respects As the majority explains, this 1s a constitutional! challenge to Colorado’s requirements on their face rather than as applied to a particular organization. A facial challenger has the daunting burden of showing “no set of circumstances exists under which the Act would be valid, t.e. that the law is unconstitutional in all of its applications.” Washington State Grange v Washington State Republican Party, U.S. , 128 App. 29 5S. Ct. 1184, 1190 (2008) (internal punctuation omitted); compare McConnell v. FEC, 540 U.S. 93 (2003) (upholding facial constitutionality of Bipar- tisan Campaign Reform Act of 2002 provision outlawing certain corporate “electioneering commu- nications”), with Wisconsin Right to Life, Inc. v. FEC, 546 US. 410 (2006) (holding McConnell did not foreclose as-applied challenges to same provision), and FEC v. Wisconsin Right to Life, Inc., 551 U.S. 127 S.Ct. 2652 (2007) (holding same _ provision unconstitutional as applied). Colorado’s definition of an issue committee is not vague “in all of its applications,” Washington State Grange, U.S. at , 128 S.Ct. at 1190. The vagueness challenge turns on one word: “a” rather than “the” before “major purpose.” Independence Institute contends ‘he major purpose of an organ- ization “is easily determinable in advance,” but a major purpose is “inherently vague.” Such a cate- gorical contention is demonstrably incorrect. Take, for example, an “organization that has four equally important purposes, only one of which is electoral advocacy.” North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274, 303 (4th Cir. 2008) (NCRL). It will be easier, not harder, to determine “a” rather than “the” major purpose of that organization. [ cannot subscribe to the discussion in the majority opinion that in my view goes further than necessary or appropriate to reject this facial chal lenge. The majority opinion contains an extended discussion of cases that have “narrowly” construed App. 30 provisions to avoid vagueness problems, and it outlines factors pertinent to a “fact-specific inquiry” into whether an organization is or is not an issue committee. But in my view the Colorado definition easily withstands a facial challenge without any narrowing construction beyond what the Secretary of State already provided. Discussion of factors relevant to determining whether an organization is an issue committee should be reserved for a case in which the legal definition must be applied to a particular organization under a given set of facts. In such a case, a multi-purpose organization would remain free to raise an as-applied constitutional challenge. Next, I agree with the majority’s rejection of the overbreadth challenge but again remain concerned with any suggestions the challenge fails because of some judicial interpretation of the definition. Ad- ministrative regulations, not judicial construction, have obviated the only real overbreadth concern by reauiring multipurpose issue committees to report only ballot-specific contributions and expenditures. Secretary of State Campaign and Political Finance Rules 4.15, 8 Code Colo. Regs. 1505-6. The Supreme Court has not — in Buckley v. Valeo, 424 U.S. 1 (1976); in FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986); or in any other decision — accorded talismanic constitutional sig- nificance to whether “the” or “a” modifies major purpose. To the contrary, in a related context, it has upheld regulation of lobbyists where “one of the matin purposes of such ‘person,’ or one of the main purposes App. 31 of such contributions” was to influence legislation. United States v. Harriss, 347 U.S. 612 (1954) (emphases added). Next, I concur with the majority’s holding that the reporting requirements do not violate the First Amendment right to speak anonymously on ballot issues. I write separately to opine that Independence Institute’s contentions on this point are more substantial than its vagueness and overbreadth challenges. Anonymous speech has a long and vital tradition predating the Constitution (as in the Federalist Papers), and at least in some circumstances it is constitutionally protected. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 3384, 341-57 (1995). Moreover, one of the most compelling interests justi- fying disclosure of political candidate contributions, that of “deterring actual corruption and avoiding any appearance thereof,” McConnell, 540 U.S. at 196, does not apply to ballot issues. See California Pro-Life Council, Inc. v. Randolph, 507 F.3d 1172, 1179 n.9 (9th Cir. 2007). The only applicable state interest — educating the electorate about financial interests behind ballot issues — is much less weighty than the interest in avoiding actual or apparent corruption of politicians. See Common Sense Alliance v. Davidson, 995 P.2d 748, 755 (Colo. 2000) (“identity of supporters and opponents of a ballot initiative would be potentially helpful to the electorate, but the information is not nearly as critical as the identity of candidate supporters’ ). App. 32 Nonetheless, as set forth in the majority opinion, Supreme Court dicta and lower court holdings have approved ballot issue disclosure requirements. Under these cases, a state’s interest in disclosing financial interests behind ballot issues is sufficiently com- pelling (albeit less so than in the political candidate context) to overcome the right to speak anonymously. I therefore concur in the majority opinion on this point and in the rest of its opinion rejecting Independence Institute’s case-specific appellate argu- ments. App. 33 District Court, City and County of Denver, Colorado 1437 Bannock Street Denver, Colorado 80202 Plaintiff: INDEPENDENCE Case Number: INSTITUTE, a Colorado non-profit O5CV7604 corporation Courtroom: 7 v. Defendant: MIKE COFFMAN, in his official capacity as SECRETARY OF STATE, STATE OF COLORADO ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT (Filing Date: May 3 2007) | This Matter is before the Court pursuant to Plaintiff and Defendant’s Cross Motions for Summary Judgment filed July 21, 2006 and August 7, 2006 respectively. Ora) argument on the Motions was held on January 26, 2007 with proposed orders to follow. The Court, having considered the pleadings, the evi- dence presented, the file, and applicable authorities, hereby Finds and Orders as follows: INTRODUCTION AND BACKGROUND 1. In 2005, a complaint was submitted by Richard Evans to the Colorado Secretary of State against the Independence Institute (“institute”) al- leging, inter alia, that the Institute had violated App. 34 Article XXVIII of the Colorado Constitution (“Article XXVIII”), which governs campaign finance laws and portions of Colorado’s Fair Campaign Practices Act, C.R.S. 1-45-101, et seg. (“FCPA”) by failing to register as an “issue committee” or file the statutorily re- quired reports. The Institute then filed this action in District Court challenging the constitutionality of the relevant provisions of Article XXVIII and the FCPA. The motions for summary judgment followed. 2. “The purpose of summary judgment is to per- mit the parties to pierce the forma] allegations of the pleadings and save the time and expense connected with trial, when as a matter of law, based on undis- puted facts, one party could not prevail.” Curragh Queensland Min. Ltd. v. Dresser Industries, 55 P.3d 235, 239 (Colo. App. 2002) (quoting Peterson v. Hal- sted, 829 P.2d 373,375 (Colo. 1992). A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admis- sions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that that the moving ~arty is entitled to judg- ment as a matter of law.” C.R.C.P. 56(c); Casey uv. Christie Lodge Owners Ass’n., Inc., 923 P.2d 365, 366 (Colo. App. 1996). Here, the parties agree to the facts and the matter is appropriate for summary judgment determination. App. 35 VAGUENESS 3. Plaimtiff asserts that the definition of “issue committee” under Article XXVIII Section 2(10)(a)(I) is unconstitutionally void for vagueness. In order to mount a facial constitutional challenge based upon vagueness, Plaintiff must show that the disputed language is “so utterly void of a standard of conduct that it simply has no core and cannot be validly ap- plied to any conduct.” United States v. Powell, 423 U.S. 87, 96 (1975). The mere fact that “clearer and more precise language” might have been used does not render the provision unconstitutional. Jd. at 94. Article XXVIII defines an “issue committee” as one which has a “major purpose” of supporting or op- posing a ballot issue or question. The Institute argues the definition of “issue committee” is unconstitu- tionally vague because there is no clear guidance as to how to determine a group’s “major purpose” In particular, Plaintiff argues that an “issue committee” may have multiple “major purposes” and therefore no group will be able to determine if it is subject to the requirements of Article XXVIII prior to speaking. 4. How to determine a group’s “major purpose” was addressed by the Administrative Law Judge (“ALJ”) in the administrative complaint proceedings involving these parties. It is apparent from the ALJ’s ruling that discerning a group’s “major purpose” did not prove overly difficult. The ALJ employed a total- ity of the circumstances analysis in arriving at the conclusion that the Institute did not have a “major purpose” that would render it an “issue committee.” App. 36 Additionally, the particular phrase “major purpose” is not a novel term in the camnaign finance context and numerous other courts have been able to interpret the phrase. See, e.g. McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003); Buckley v. Valeo, 424 U.S. 1 (1976). Therefore, the Court finds that the defi- nition of “issue committee” is not unconstitutionally vague. OVERBREADTH 5. Plaintiff also argues that the definition of “issue committee” under Article XXVIII is overbroad because it extends to organizations whose purpose goes beyond just supporting or opposing ballot issues. Plaintiff further states that the disclosure and regis- tration requirements of the FCPA are _ similarly overbroad because they require compliance from groups not engaged solely in campaigning. Language that appears to be overbroad may still be constitu- tional if the scope can be narrowed by a limiting instruction. Broadrick v. Oklahoma, 413 U.S. 601 (1973). Here, the Colorado Secretary of State has issued two rules that narrow the constitutional definition of “issue committee” and limit the type of groups that must comply with the FCPA require- ments. Rules 3.8 and 4.16 of the Ru'es Concerning Campaign and Political Finance address Plaintiff’s argument pertaining to organizations that may have multiple purposes and therefore be considered an “issue committee” in certain circumstances. Rule 3.8 App. 37 defines a “multi-purpose issue committee” and ad- dresses its formation and termination. Rule 4.16 sets out the specific reporting requirements of a “multi- purpose issue cummittee” and distinguishes such requirements from those of “pure issue committees.” Therefore, the Court finds that neither the definition of “issue committee” nor the FCPA’s reporting, registration, and _ disclosure requirements are unconstitutionally overbroad. FAIR CAMPAIGN PRACTICES ACT - BURDENSOME 6. Plaintiff’s mext contention is that the registration and reporting requirements of the FCPA are onerous and unduly burdensome because they disproportionately impact small educational groups and issue advocacy organizations. Plaintiff offers evidence that compliance with the FCPA’s requirements regarding separation of funds used to support or oppose ballot issues and the filing of registration and termination statements will be a “nightmare” for small groups. Pl. Cross-Motion for Summ. Judgment at 25. However, the Institute has brought a facial constitutional claim on the basis that the challenged provisions are incapable of being applied constitutionally in any context. A facial challenge is distinguishable from an “as applied challenge wherein an otherwise constitutional statute may be found to be unconstitutional under a particular set of circumstances. Sanger v. Dennis, 148 P.3d 404 (Colo.App. 2006). Such a challenge may only App. 38 be raised by a party who has actually been adversely impacted by the statute and therefore has standing. Plaintiff’s argument regarding the burden placed on small groups by the FCPA’s reporting requirements is, upon closer examination, an “as applied” argument and therefore, the Institute lacks standing to raise this argument. FAIR CAMPAIGN PRACTICES ACT —~ CHILLING 7. Finally, Plaintiff argues that the statutory disclosure provisions of the FCPA violate the U.S. Constitutional First Amendment rnghts to anonymous speech and association. Plaintiff relies on the line of Supreme Court cases stemming from the decision in Broadrick v. Oklahoma, 413 U.S. 601 (1973) which stand for the proposition that some laws may be struck down simply because they threaten to chill speech. Jd. at 612. However, these cases also state that mere predictions of the effects of prohibiting certain speech cannot justify invalidating a statute on its face if the regulated conduct is within the State’s power to proscribe. /d. Additionally, the Court has found that the reasonable probability that disclosure of contributors’ names will subject them to threats or harassment may be shown in a variety of ways, including by specific evidence of past incidents or specific manifestations of public hostility. Buckley at 74. Plaintiff here has failed to offer sufficient evidence, beyond speculation, that such threats exist. App. 39 Therefore, the Court hereby GRANTS Defen- dant’s Motion for Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment, each side to bear their own fees and costs. Dated this 3rd day of May 2007. By the Court: /s/ Herbert L. Stern III Herbert L. Stern III District Court Judge (For Courtroom 7) Attorney for Plaintiff Attorney for Defendant App. 40 DISTRIC. GOURT, CITY AND COUNTY OF DENVER, COLORADO 1437 Bannock Street Denver, CO 80202 Plaintiff: _ HAASE INDEPENDENCE INSTITUTE, a Number: Colorado non-profit corporation 05CV7604 Vv. Ctrm: 7 Defendants: RICHARD EVANS and GIGI DENNIS, in her capacity as SECRETARY OF STATE, STATE OF COLORADO ORDER (Re: Secretary of State’s Motion to Dismiss) (Filing Date: Dec 14, 2005) THIS MATTER is before the Court on the Secre tary of State’s Motion to Dismiss. Upon consideration of the motion, the response and reply thereto, and having reviewed the Court’s file and applicable authorities and being sufficiently advised in the premises, the Court finds and orders as follows In light of the resolution of this matter by the administrative law judge, the Secretary of State has withdrawn its motion as it relates to Plaintiff’s facial challenges. The Court further agrees that its determ1- nation in this action shall be limited to such facial challenges and shall not extend to any as-applied challenges. App. 41 Accordingly, the motion is granted in part. SO ORDERED this 14th day of December, 2005 BY THE COURT s/ Martin Egelhoff Martin Egelhoff District Court Judge App. 42 BEFORE THE SECRETARY OF STATE STATE OF COLORADO CASE NO. OS 20050020 AGENCY DECISION IN THE MATTER OF THE COMPLAINT FILED BY RICHARD EVANS REGARDING ALLEGED CAMPAIGN AND POLITICAL FINANCE VIOLA- TIONS BY THE INDEPENDENCE INSTITUTE AND VOTE NO; [T’S YOUR DOUGH This matter is before the Office of Administrative Courts (“OAC”) on the complaint of Richard Evans (“Complainant”) against the Independence Institute (“Institute”) and Vote No; It’s Your Dough (“Vote No” or “Committee”). The complaint was filed with the Colorado Secretary of State (“Secretary”) on August 4, 2005. On August 5, 2005, the Secretary referred the complaint to OAC as required by Colo. Const. art XXVIII, §9(2)(a). Complainant is represented by Mark G. Grueskin, Esq. and Edward T. Ramey, Esq The Institute is represented by Richard C. Kaufman, Esq. and Shayne M. Madsen, Esq. The Committee is represented by Shawn Mitchell, Esq. Hearing on the complaint was conducted in Denver, Colorado, on October 12, 2005, before Administrative Law Judge (“ALJ”) Michelle A. Norcross. The hearing was digi tally recorded in Courtroom 1. At hearing, the Ald admitted Complainant exhibits 1 through 32, 34 App 43 through 45, and the institute’s exhibits R-1 through R-9 and R-11 through R-20 into evidence. The record was held open until October 19, 2005 for receipt of closing briefs. 2arties’ Positions Complainant: Complainant alleges that the Institute became an “issue committee” as defined in the Colorado Constitution by engaging in efforts to oppose ballot measures C and D (“Referenda C and D”) including paying for and airing three radio advertisements (“ads”) concerning Referenda C and D. And, as such, the Institute is subject to the dis closure requirements of the Fair Campaign Practices Act (“FCPA”) and must disclose the name of the donor(s) who paid for the ads and/or made contribu- tions to the Institute. Complainant argues that the Institute has violated the Colorado Constitution and the FCPA by failing to register as an issue committee, by failing to disclose contributions and expenditures for its activities, and by failing to open a separate bank account for its C and D activitie On October 21, 2005, Complainant’s counsel submitted the following supplemental exhibits addressed at hearnng exhibits used at the deposition of Mr. Jon Caldara that were not ippended to the deposition submitted at hearing (Mr. Caldara deposition is admitted as exhibit 45); a copy of Judge Egelhoff’ decision denying the Institute’s request for preliminary injunction (Judge Egelhoff's decision is admitted as exhibit R 20); and a Word compatible version of exhibit 36 that includ: io advertisement ind one television advertisement App. 44 With respect to Vote No, Complainant alleges that the Committee violated the Colorado Constitu- tion and the FCPA by failing to report all the contri- butions it received from the Institute. The Institute: The Institute admits that it ran three radio ads and published materials on its web- site concerning Referenda C and D. The Institute denies that it has a major purpose of opposing Refer- enda C and D and further denies that its radio ads and/or website spensorship constitute express advo- cacy. Therefore, it contends that it is not an issue committee and is not subject to the disclosure re- quirements of the FCPA. The Institute has also raised constitutional challenges to Article XXVIII of the Colorado Constitution and the FCPA that are the subject of a complaint filed in Denver District Court. Vote No: The Committee denies that it received any non-reported contributions from the Institute. It argues that it has fully complied with Colorado’s cam- paign laws by properly registering as an issue com- mittee and accu: utely reporting its contributions and expenditures, including all contributions it received from the Institute. Pre-hearing Motions Complainant's Motion to Continue. This case was originally set for hearing on August 15, 2005. Com- plainant filed a motion to continue the August 15 hear:ag on the basis of a medical emergency on the part of counsel. The motion was unopposed and based App. 45 upon a thirty-day extension of time requested by the Institute the case was reset for hearing on October 5, 2005. Complainant’s Motion to Accept First Amended Complaint. On September 26, 2005, Complainant filed a motion to amend his complaint along with his First Amended Complaint. The only change from the original complaint is the addition of Complainant’s mailing address and the addition of Vote No in the caption and in the introductory paragraph of the complaint. In all other respects, the First Amended Compiaint is identical to the original complaint and no additional claim of relief is requested as a result of the amendments. Neither the Institute nor Vote No objected to the motion. Accordingly, on September 30, 2005, the ALJ granted Complainant’s motion and accepted Complainant’s First Amended Complaint. Institute’s Motion to Stay. On September 27, 2005, the Institute filed a Motion to Stay Adminis- trative Proceedings, which was joined by Vote No. The Institute requested a stay of the administrative proceedings for the following reason: On September 26, 2005, the Institute filed a complaint in Denver District Court raising facial constitutional challenges to Article XXVIII of the Colorado Constitution and statutory provisions of the FCPA, specifically, the Institute challenges the definition of an “issue committee” and portions of the FCPA’s disclosure requirements. The Institute argued that absent a stay of the administrative proceedings it could not obtain complete and adequate remedies since the App. 46 matters in controversy are matters of law that the agency lacks the jurisdiction to determine. On September 28, 2005, Complainant filed a response opposing the request for a stay. The Insti- tute filed its reply on September 30, 2005. The ALJ convened a telephone hearing on September 30, 2005, to take argument on the motion. Following oral argument, the ALJ denied the Institute’s motion to stay the administrative proceeding for the following reasons: (a) OAC has jurisdiction to hear and rule on the merits of complaint; (b) OAC is charged with holding a hearing and rendering a decision in these cases on an expeditious basis; and (c) the ALJ has the authority and discretion to fashion a remedy, in- cluding a protective order, to protect the Institute from disclosure of its members and/or donors during the administrative process, as well as the authority and discretion to stay enforcement of any order requiring disclosure pending any appeal of an adverse order. Complainant’s Motion to Compel and for Sanc- tions. On September 29, 2005, Complainant filed a motion to compel Ethan Eilon, a part-time volunteer for the Vote No committee, and the custodian of the records for Vote No, to provide testimony and pxoduce documents pursuant to subpoenas served on Septem- ber 22, 2005. During the telephone hearing on September 30, 2005, Complainant’s counsel, Mr. Grueskin, informed the ALJ that the parties had come to an agreement regarding the deposition of Mr. Eilon as well as the production of documents referenced App. 47 in the motion to compel, rendering the motion to compel moot. Mr. Grueskin requested that he be allowed to renew his request for sanctions at the merits hearing and that the ALJ consider his motion at that time. The ALJ granted the request to delay a ruling on the motion for sanctions. Complainant did not renew his request for sanctions at the October 12 hearing. Accordingly, the ALJ denies Complainant’s motion for sanctions as moot. Institute’s Motion to Vacate Octoder 12, 2005 Hearing. On October 5, 2005, the Institute filed a motion to vacate the October 12, 2005 hearing and requested a status conference to be held on October 12, 2005. Complainant filed an opposition to the mo- tion on October 6, 2005. The basis for the motion to vacate was two-fold: (a) Jon Caldara, President of the Institute, and the primary witness in the case was un*vailable to appear on October 12, 2005; and (b) the earliest date available in Denver District Court for a hearing on the Institute’s motion for preliminary injunction was October 11, 2005. On October 11, 2005, the ALJ set up a telephone hearing with the parties to discuss the pending motion. However, the ALJ was unable to proceed with the hearing because the parties were unavailable; they were in Denver District Court presenting argument on the motion for preliminary injunction. On the morning of October 12, 2005, the parties appeared before the ALJ and informed her that Denver District Court Judge Martin Egelhoff denied the motion for preliminary injunction. The Institute withdrew its motion to App. 48 vacate and the case proceeded to hearing on the merits. Motions made at Hearing Complainant’s Request for Disclosure of Donor(s) for Radio Ads. Complainant requested that the ALJ allow him to inquire of Mr. Caldara the specific identity of the donor(s) who paid for and/or contri- buted money to the Institute for the radio ads that are the subject of this complaint. The Institute objected. The ALJ denied the request on the basis that, prior to requiring disclosure of any contributors, Complainant must first establish that the Institute is an issue committee. If Complainant met that burden, the ALJ, in her decision, would order the Institute to fully comply with the FCPA’s disclosure require- ments. The ALJ further ruled that, prior to such a determination, disclosure of the Institute’s donors and/or contributors would be premature and could result in irreparable harm to the Institute and its members. Motion for Directed Verdict. At the close of Complainant’s case-in-chief, Vote No moved for dis- missal of the complaint on the basis that Com- vlainant failed to prove, by a preponderance of the evidence, that either the Institute or Vote No violated Colorado’s campaign laws. The ALJ denied the motion, but agreed to accept counsel’s legal argu- ments for purposes of rendering the Agency Decision. App. 49 Post-hearing Motion Vote No’s Motion for One-Night Extension of Time to File Closing Brief: On October 19, 2005, Vote No requested a one-night extension to file its closing brief. Along with the motion, it filed its closing brief on the morning of October 29. 2005. In its motion, Vote No represents that Compliunant objects to the one-night extension; however, the ALJ did not receive Complainant’s response. On October 20, 2005, the ALJ granted Vote No’s motion and accepted its written closing argument as part of the record. FINDINGS OF FACT Based upon the evidentiary record, the ALJ makes the following Findings of Fact: The Institute 1. The Institute was founded in 1985. It is registered with the Internal Revenue Service as a 501(c)(3), non-partisan, non-profit policy research or- ganization. It is located in Golden, Colorado and its current President is Jon Caldara. 2. As a non-profit organization, the Institute receives its funding from individual monetary dona- tions. The donations are tax deductible. A gift of $100 allows an individual to become a member of the Institute and receive free weekly e-mails, news- letters, copies of policy papers and invitations to special events. Members who contribute $1,000 or App. 50 more become members of the “Circle of Independence” and receive invitations to special and exclusive events with state and national policy leaders. Aside from a small monetary donation, there are no formal mem- bership requirements. The Institute also accepts charitable and anonymous donations. The Institute’s budget for the prior year was $1 million. Mr. Caldara estimates that the Institute’s current-year budget will be between $1.3 and $1.4 million. 3. Since 1985, it has been the mission of the Institute to help promote the ideals of limited govern- ment in free markets and to promote personal and economic liberty. In furtherance of this mission, the Institute provides policy makers, legislators and citi- zens of Colorado with educational materials ad- dressing a broad spectrum of policy issues, including public education, transportation, and taxation. 4. Since its inception, the Institute has used all] available media to further its educational mission, in- cluding, but not limited to, disseminating “issue papers” and “issue backgrounders,” publishing weekly opinion-editorials (“op-eds”), establishing a website, and hosting a weekly television interview program on Colorado Public Television, KBDI Chan- nel 12, called Independent Thinking. 5. The vast majority of the Institute’s material is available on its website, www.i2i.org. The Institute also hosts other websites including www.taxincrease. org. Taxincrease.org was created several years ago by the Institute to provide information to the public App. 51 about issues specifically related to taxation and government spending. 6. In addition to its publications, the Institute also presents speeches, publishes reviews, hosts sym- posia, produces advertising, holds public debates, hosts monthly member events, presents legislative briefings, and presents public forums. The Institute focuses on several core policy areas through its six “policy centers.” The Institute’s policy centers include: (a) the Education Policy Center; (b) the Health Care Policy Cen [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0943%3A1. Public record. Not legal advice.