Intervenors Brief in 10th Circuit

8/10/2019 Intervenors Brief in 10th Circuit

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No. 14-1387

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

____________________________________

CITIZENS UNITED,

Plaintiff-Appellant,

v.

SCOTT GESSLER and SUZANNE STAIERT,

Defendant-Appellees,

and

COLORADO DEMOCRATIC PARTY, GAROLD A. FORNANDER,LUCA GUZMN, and DICKEY LEE HULLINGHORST,

Intervenor-Defendants.____________________________________

On Appeal from the United States District Court for

the District of Colorado, No. 1:14-cv-02266-RBJThe Honorable R. Brooke Jackson____________________________________

INTERVENOR-DEFENDANTS BRIEF

____________________________________

Martha M. TierneyEdward T. RameyHeizer Paul LLP

2401 15thStreet, Suite 300Denver, CO 80202Phone: (303) 595-4747Counsel for Intervenor-Defendants

Appellate Case: 14-1387 Document: 01019320980 Date Filed: 10/03/2014 Page: 1


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TABLE OF CONTENTS

Page(s)

DISCLOSURE OF PRIOR OR RELATED APPEALS ............................................ 1

STATEMENT PURSUANT TO TENTH CIRCUIT RULE 31.3 ............................ 2

JURISDICTIONAL STATEMENT .......................................................................... 3

ISSUE PRESENTED FOR REVIEW ....................................................................... 3

I. STATEMENT OF THE CASE ....................................................................... 4

II. SUMMARY OF THE ARGUMENT .............................................................. 7

III. ARGUMENT ................................................................................................... 9

A. Standard of Review ............................................................................... 9

B.

Citizens United Did Not Meet Its Heavy Burden to Obtain aPreliminary Injunction ........................................................................... 9

C. Citizen United Failed to Demonstrate A Substantial Likelihood OfSuccess On The Merits Because Colorados Reporting and Disclosure

Provisions Are Constitutional Facially and As Applied to Citizens

United. ................................................................................................. 12

1.

Disclosure Requirements Are Subject to ExactingScrutiny ..................................................................................... 12

2. Colorados Reporting and Disclosure Provisions AreSubstantially Related to Important GovernmentalInterests ..................................................................................... 16

a. Disclosure Furthers the Important Government Interest in

Providing Information to the Public. .............................. 17

b.

Disclosure Furthers the Important Government Interest inEnabling Enforcement of Campaign Finance Laws. ...... 19

c. Citizens United Is Not Exempt from ColoradosReporting and Disclosure Requirements ........................ 20



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D. Citizens United Demonstrated No First Amendment Burden Arisingfrom the Reporting and Disclosure Provisions and Thus Failed toDemonstrate Irreparable Harm ............................................................ 24

1.

Citizens United Presented No Evidence that the Reporting and

Disclosure Provisions Chill Speech .......................................... 25

2.

Citizens Uniteds Delay in Filing this Action and in Moving for

a Preliminary Injunction Indicates an Absence of IrreparableHarm. ......................................................................................... 26

E.

The Balance of the Equities Favors Disclosure. ................................. 27

F.

Disclosure Serves the Public Interest. ................................................. 28

IV. CONCLUSION.............................................................................................. 29



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TABLE OF AUTHORITIES

Page(s)

Cases

Attorney General of the State of Oklahoma v. Tyson Foods, Inc.,565 F.3d 769 (10thCir. 2009) .......................................................................... 9

Buckley v. American Constitutional Law Foundation, Inc.,525 U.S. 182 (1999).......................................................................................12

Buckley v. Valeo,424 U.S. 1 (1976) ................................................................................... passim

Chandler v. City of Arvada,292 F.3d 1241 (10th Cir. 2002) .....................................................................15

Citizens Against Rent Control v. Berkeley,454 U.S. 290 (1981).......................................................................................14

Citizens for Responsible Govt State Political Action Comm. v. Davidson,236 F.3d 1174 (10thCir. 2000) ......................................................... 17, 19, 20

Citizens United v. FEC,

558 U.S. 310 (2010)............................................................................... passim

Colo. Citizens for Ethics in Govt v. Committee for the American Dream,

187 P.3d 1207 (Colo. Ct. App. 2008) ............................................................23

Davis v. FEC,554 U.S. 724 (2008).......................................................................................12

Doe v. Reed,561 U.S. 186 (2010).......................................................................................12

Dominion Video Satellite, Inc. v. Echostar Satellite Corp.,269 F.3d 1149 (10th Cir. 2001) .....................................................................11

Dominion Video Satellite, Inc. v. Echostar Satellite Corp.,

356 F.3d 1256 (10thCir. 2004) ......................................................................25



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FEC v. Mass. Citizens for Life, Inc.,479 U.S. 238 (1986).......................................................................................14

First Natl Bank of Bostonv. Bellotti,435 U.S. 765 (1978)................................................................................ 13, 14

Gen. Motors Corp. v. Urban Gorilla, LLC,500 F.3d 1222 (10thCir. 2007) ........................................................................ 9

Greater New Orleans Broadcasting Association, Inc. v. United States,527 U.S. 173 (1999).......................................................................................15

GTE Corp. v. Williams,731 F.2d 676 (10thCir. 1984) ........................................................................27

McConnell v. Federal Election Commn,540 U.S. 93, 201 (2003) ............................................................. 13, 16, 17, 19

O Centro Espirta Beneficiente Uniao Do Vegetal v. Ashcroft,389 F.3d 973 (10th Cir. 2004) .......................................................................10

Okla. Corr. Profl Assn v. Doerflinger,521 F. Appx 674 (10

thCir. 2013) .................................................................15

Republican Party v. King,741 F.3d 1089 (10th Cir. 2013) .....................................................................26

RoDa Drilling Co. v. Siegal,552 F.3d 1203 (10thCir. 2009) ..................................................................9, 10

Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819 (1995).......................................................................................15

Sampson v Buescher,625 F3d 1247 (10th Cir. 2010) ......................................................................29

Utah Gospel Mission v. Salt Lake City Corp.,316 F. Supp. 2d 1201 (D. Utah 2004) ...........................................................27

Westar Energy, Inc. v. Lake,552 F. 3d 1215 (10th Cir. 2009) ....................................................................10



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Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7 (2008) ...........................................................................................10

Statutes

28 U.S.C. 1292 ........................................................................................................ 3

28 U.S.C. 1331 ........................................................................................................ 3

Colo. Rev. Stat. 1-45-103( 9) .................................................................................. 6

Colo. Rev. Stat. 1-45-103(10) ................................................................................. 6

Colo. Rev. Stat. 1-45-107.5 ..............................................................................5, 12

Colo. Rev. Stat. 1-45-107.5(1) ..............................................................................20

Colo. Rev. Stat. 1-45-107.5(4) ..............................................................................24

Colo. Rev. Stat. 1-45-108 ....................................................................................... 5

Colo. Rev. Stat. 24-4-106 .....................................................................................27

Rules

8 CCR 1505-6-11.1 (2012) ..................................................................................5, 24

Constitutional Provisions

Colo. Const. art. XXVIII, 1 ...................................................................................28

Colo. Const. art. XXVIII, 2(7) ..............................................................................12

Colo. Const. art. XXVIII, 2(7)(b) ................................................................. passim

Colo. Const. art. XXVIII, 2(7)(b)(III) ..................................................................23Colo. Const. art. XXVIII, 2(8) ..............................................................................12

Colo. Const. art. XXVIII, 2(8)(b) ................................................................. passim




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Colo. Const. art. XXVIII, 6(1) ................................................................................ 5


Colo. Const. art. XXVIII, 9(2) ....................................................................... 20, 26

Colo. Const. art. XXVIII, 9(2)(a) ........................................................................... 6



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DISCLOSURE OF PRIOR OR RELATED APPEALS

There are no prior or related appeals in this matter.



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STATEMENT PURSUANT TO TENTH CIRCUIT RULE 31.3

The present brief, timely filed on October 3, 2014, is submitted on behalf of

the Intervenor-Defendants, the Colorado Democratic Party, Garold A. Fornander,

Luca Guzmn, and Dickey Lee Hullinghorst, pursuant to this Courts Order of

September 29, 2014 granting their motion for leave to file a separate merits brief.



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JURISDICTIONAL STATEMENT

The United States District Court for the District of Colorado had subject

matter jurisdiction over this case pursuant to 28 U.S.C. 1331 because the matter

arises under the United States Constitution.

This Court has jurisdiction over this appeal pursuant to 28 U.S.C. 1292 as

an appeal from the District Courts order of September 22, 2014, denying

Plaintiffs Motion for Preliminary Injunction.

ISSUE PRESENTED FOR REVIEW

Whether the District Court abused its discretion when it denied Citizens

Uniteds Motion forPreliminary Injunction seeking to enjoin enforcement of

Colorados reporting and disclosure requirementsfor electioneering

communications and independent expenditures.



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I.

STATEMENT OF THE CASE

Citizen United asserts that it is producing a film calledRocky Mountain

Heist1that will include unambiguous references to elected officials in Colorado

who are candidates for office in the November 4, 2014 election. (App. A17, A56).

Citizens United alleges that the film will include audio and video content of events

where participants expressly advocate the election or defeat of one or more

candidates in the November 4, 2014 election, including audio and visual content of

Governor John Hickenlooper, who is the Democratic Party candidate for the Office

of Governor of Colorado. (App. A56). Citizens United planned to finish the

movie on or about September 24, 2014, and begin marketing and distributing the

movie during the first week of October 2014 through DVD sales, television

broadcasts and digital downloads. (App. A55-56).

Colorados campaign finance laws are found primarily in Article XXVIII of

the Colorado Constitution, a citizens initiative adopted in 2002, and in the Fair

Campaign Practices Act (FCPA), 1-45-101 et seq, C.R.S. Citizens United

challenged the constitutionality of Colorados reporting and disclosure

requirements contained in Sections 2, 5, and 6 of Article XXVIII of the Colorado

Constitution, and Sections 1-45-103, 1-45-107.5, and 1-45-108 of the Colorado

Revised Statutes. (App. A22-24).

1Citizens United has not produced the film or a transcript of the film in theseproceedings to date.



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Colorado reporting requirements are straightforward. The sponsor of

independent expenditures of over $1000 in any calendar year must identify itself to

the Secretary of State, disclose the amount spent on the expenditure and any

contributions of more than $250 it received that were earmarked to underwrite

independent expenditures, and identify itself in the communication. 1-45-107.5

(2014), C.R.S. Similarly, Colorado law requires the sponsor of an electioneering

communication to identify itself to the Secretary of State, disclose the amount

spent on the advertisement and any contributions earmarked to underwrite it, and

identify itself in the advertisement itself. Colo. Const. art. XXVIII, 6(1); 1-45-

108, C.R.S. If a person spending money for electioneering communications is a

corporation or labor organization, disclosure of the names and addresses of persons

contributing $250 or more used to make electioneering communications shall only

be required if the money is specifically earmarked for electioneering

communications. 8 CCR 1505-6-11.1 (2012).

For independent expenditures made during the electioneering

communications window (thirty days before a primary election or sixty days before

a general election), the sponsor may check a box on the independent expenditure

report indicating it is also an electioneering communication and no further

electioneering communication reporting is required.



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Colorado law contains certain exemptions from the definition of

electioneering communications and independent expenditures. Pertinent here are

the following two exemptions:

(I) Any news Articles, editorial endorsements, opinion or commentarywritings, or letters to the editor printed in a newspaper, magazine orother periodical not owned or controlled by a candidate or politicalparty;

(II) Any editorial endorsements or opinions aired by a broadcastfacility not owned or controlled by a candidate or political party;

Colo. Const. art. XXVIII, 2(7)(b), 2(8)(b); 1-45-103(9)-(10), C.R.S.

Also pursuant to Colorado law, any person who believes that a violation of

Colorado campaign finance law has occurred may file a written complaint with the

Secretary of State no later than 180 days after the date of the alleged violation.

Colo. Const. art. XXVIII, 9(2)(a). An administrative law judge shall hold a

hearing within fifteen days and shall render a decision within fifteen days of the

hearing. Id. The decision of the administrative law judge shall be final and subject

to review by the court of appeals, and the Secretary of State and the administrative

law judge are not necessary parties to the review. Id.

Rocky Mountain Heist, and the advertisements that Citizens United intends

to run in support of it, do not fall into one of the enumerated exemptions for

electioneering communications or independent expenditures under Colorado law.

As recently as September 25, 2014, Citizens United stated that it will begin to



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advertise and distribute its forthcoming film in less than ten days even though it

will be subject to the disclosure requirements of Colorado law. Colo. Const. art.

XXVIII, 2(7)(b), 2(8)(b). (Doc. 01019316617 at 2, 19).

II.

SUMMARY OF THE ARGUMENT

The District Court did not abuse its discretion when it denied Citizens

Uniteds Motion for Preliminary Injunction seeking to enjoin Colorados reporting

and disclosure provisions for electioneering communications and independent

expenditures. Citizens United seeks to alter the status quo currently requiring it

to comply with the reporting and disclosure laws and to obtain all of the relief it

could recover at the conclusion of a full trial on the merits. Such injunctions are

disfavored by the Tenth Circuit and must be more closely scrutinized to assure that

the extraordinary relief requested is appropriate.

Rejecting Citizens Uniteds framing of the issue as one of identity-based

discrimination, the District Court examined Colorados disclosure regime under

an exacting scrutiny analysis. Citizens United did not show that it was likely to

succeed on the merits under exacting scrutiny. The press entity status that Citizens

United seeks does not exist in Colorado. Rather, Coloradosdisclosure exemptions

are triggered by the form of the speech, not by the identity of the speaker or the

content of the speech.



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The Supreme Court has repeatedly upheld disclosure requirements as the

least restrictive means of regulating campaign finance. Under exacting scrutiny,

Citizens United failed to meet its burden of showing that there is no substantial

relation between the disclosure regime as a whole and the governmentsimportant

interest in maintaining an informed electorate and enabling enforcement of

campaign finance laws.

Citizens United did not demonstrate that it would suffer irreparable harm

absent a preliminary injunction. The record is devoid of any evidence that Citizens

United will not release its movie or run its advertisements, or that its donors will

not contribute, if it must comply with the disclosure provisions. Rather, Citizens

United admits that it will advertise and distribute its forthcoming film even though

it will be subject to the disclosure requirements of Colorado law. Colorados

disclosure requirements are not unduly burdensome given that only contributors

who earmark their donations for independent expenditures or electioneering

communications must be disclosed.

The balance of the equities and the public interest favor continued disclosure

because, absent disclosure, Colorado voters will be deprived of information they

may need to make informed decisions on election day.



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III.

ARGUMENT

A.

Standard of Review

This Court reviews the denial of a preliminary injunction under an abuse of

discretion standard. Gen. Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222,

1226 (10thCir. 2007). An abuse of discretion occurs when the district court

commits an error of law or makes clearly erroneous factual findings.Id. The

Court has previously characterized an abuse of discretion as an arbitrary,

capricious, whimsical, or manifestly unreasonable judgment. RoDa Drilling Co.

v. Siegal, 552 F.3d 1203, 1208 (10thCir. 2009). In the course of its review for

abuse of discretion, this Court examine[s] the district courts legal determinations

de novo, and its underlying factual findings for clear error.Attorney General of

the State of Oklahoma v. Tyson Foods, Inc., 565 F.3d 769, 776 (10thCir. 2009).

[R]eview of a district courts exercise of discretion is narrow, and [the Court]

consider[s] the merits of the case only as they affect that exercise of discretion.

Id.

B. Citizens United Did Not Meet Its Heavy Burden to Obtain a

Preliminary Injunction

To obtain a preliminary injunction, the moving party must demonstrate: (1)

a likelihood of success on the merits; (2) a likelihood that the movant will suffer

irreparable harm in the absence of preliminary relief; (3) that the balance of

equities tips in the movants favor; and (4) that the injunction is in the public



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interest.RoDa, 552 F.3d at 1208 (citing Winter v. Natural Res. Def. Council,

Inc., 555 U.S. 7, 20 (2008)). Preliminary injunctions are extraordinary equitable

remedies designed to preserve the relative positions of the parties until a trial on

the merits can be held.Westar Energy, Inc. v. Lake, 552 F. 3d 1215, 1224 (10th

Cir. 2009).

The Tenth Circuit applies a heightened standard to a request for one of three

types of preliminary injunctions: (1) preliminary injunctions that alter the status

quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that

afford the movant all the relief it could recover at the conclusion of a full trial on

the merits. O Centro Espirta Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d

973, 975 (10th Cir. 2004)(per curiam), affd, 546 U.S. 418 (2006). This type of

preliminary injunction must be more closely scrutinized to assure that the

exigencies of the case support the granting of a remedy that is extraordinary even

in the normal course.Id. A movant must make a strong showing both with

regard to the likelihood of success on the merits and with regard to the balance of

harms.Id.at 976. Here, Citizens Uniteds request for a preliminary injunction

implicated both the first and third types of preliminary injunctions that require a

heightened standard and must be closely scrutinized to determine if such an

extraordinary remedy is appropriate.



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First, Citizens United sought a preliminary injunction that altered the status

quo. The status quo is the last uncontested status between the parties which

preceded the controversy until the outcome of the final hearing.Dominion Video

Satellite, Inc. v. Echostar Satellite Corp., 269 F.3d 1149, 1155 (10th Cir. 2001).

The last uncontested status between the parties here requires Citizens United to

comply with Colorado reporting and disclosure requirements attendant to

independent expenditures and electioneering communications. In seeking to enjoin

the reporting and disclosure requirements either facially or as applied to it, Citizens

United sought to alter the status quo.

Also requiring application of a heightened standard, Citizens United sought

a preliminary injunction that would afford it all the relief it could recover at the

conclusion of a full trial on the meritsexemption from compliance with

Colorados reporting and disclosure requirements for independent expenditures

and electioneering communications involving an election approximately a month

away.

The District Court did not abuse its discretion when it denied a preliminary

injunction under the facts and law at issue here.



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C.

Citizen United Failed to Demonstrate A Substantial Likelihood Of

Success On The Merits Because Colorados Reporting and

Disclosure Provisions Are Constitutional Facially and As Applied

to Citizens United.

1.

Disclosure Requirements Are Subject to Exacting Scrutiny

In First Amendment challenges to the constitutionality of disclosure

requirements, the relevant test is exacting scrutiny,which requires a substantial

relationbetween the disclosure requirement and a sufficiently important

governmental interest.Doe v. Reed, 561 U.S. 186, 196 (2010) (quoting Citizens

United v. FEC, 558 U.S. 310, 366 (2010). Citizens United sought strict scrutiny by

framing its challenge to Colorados reporting and disclosure requirements on the

basis of speaker identity. But Colorados reporting and disclosure provisions are

triggered by the form, and in some cases the timing, of the speech, not by the

identity of the speaker or the content of the speech. Colo. Const. art. XXVIII,

2(7)-(8), 6; 1-45-107.5, C.R.S. (2014). As such, the disclosure requirements

withstand exacting scrutiny consistent with a series of Supreme Court precedents

considering First Amendment challenges to disclosure requirements in the electoral

context. See, e.g., Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per curiam) ; Citizens

United, 558 U.S. at 366;Davis v. FEC, 554 U.S. 724, 744 (2008);Buckley v.

American Constitutional Law Foundation, Inc., 525 U.S. 182, 204 (1999).

Starting withBuckley v. Valeo, the Supreme Court expressly distinguished

the strict scrutiny applicable to statutes, such as expenditure limits, that impose



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limitations on core First Amendment rights of political expression, 424 U.S. at

44-45, from the lesser scrutiny applicable to intrusions on the privacy of

association by disclosure requirements. Id. at 64. Similarly, in each campaign

finance case on which Citizens United relied to support its strict scrutiny argument

below, the Supreme Court both struck down certain funding restrictions, and

upheld disclosure requirements, every time.

For example, in Citizens United, the Court struck down a federal prohibition

on independent expenditures by corporations, but upheld a disclosure requirement

imposed on any person spending over a certain monetary limit on electioneering

communications within a year. Spenders were required to identify the person

making the expenditure, the amount of the expenditure, the election to which the

communication was directed, and the names of certain contributors. Citizens

United, 558 U.S. at 366. Disclaimer and disclosure requirements,the Court

acknowledged, may burden the ability to speak, but they impose no ceiling on

campaign-related activities,id. (quoting Buckley v. Valeo, 424 U.S. at 64), and

do not prevent anyone from speaking,id.(quotingMcConnell v. Federal

Election Commn, 540 U.S. 93, 201 (2003).

InFirst Natl Bank of Boston v. Bellotti, 435 U.S. 765 (1978), the Court

struck down restrictions on corporate expenditures relating to ballot initiatives, but

upheld the disclosure requirements governing those expenditures. 435 U.S. at 791-



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92 n.32. The Court observed that [i]dentification 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.Id.

The Supreme Court has frequently upheld disclosure requirements even

when striking down substantive restrictions on the funds to be disclosed. See, e.g.,

Citizens United, 558 U.S. at 371 (striking down corporate treasury ban on

independent expenditures and electioneering communications but finding no

constitutional impediment to application of disclosure requirements to Citizens

Uniteds advertisements of the movieHillary or to the movie itself);FEC v. Mass.

Citizens for Life, Inc., 479 U.S. 238, 262 (1986) (MCFL) (striking down

independent expenditure restrictions on certain non-profit organizations in part

because reporting obligations provide precisely the information necessary to

monitor MCFLs independent spending activity); Citizens Against Rent Control v.

Berkeley, 454 U.S. 290, 298-99 (1981) (striking down contribution limits

governing ballot initiative groups because there is no risk that the Berkeley voters

will be in doubt as to the identity of those whose money supports or opposes a

given ballot measure since contributors must make their identities known under . . .

the ordinance, which requires publication of lists of contributors in advance of the

voting).



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Outside the campaign finance context, Citizens United points to inapposite

cases in which a court applied strict scrutiny to restrictions on speech content or

speaker identity.2 See Greater New Orleans Broadcasting Association, Inc. v.

United States, 527 U.S. 173 (1999) (casino advertising);Rosenberger v. Rector &

Visitors of Univ. of Va., 515 U.S. 819 (1995) (public university payments for

student religious organizations); Okla. Corr. Profl Assn v. Doerflinger, 521 F.

Appx 674 (10thCir. 2013) (payroll deductions for labor union dues); and Chandler

v. City of Arvada, 292 F.3d 1241 (10th Cir. 2002) (nonresident circulation of ballot

measure petitions).

As the District Court found, in Colorado it is the form of the speech that

triggers exemptions to disclosure for clearly defined electioneering

communications and expenditures that are news articles, editorials, opinions or

letters printed in a newspaper, magazine or other periodical, or editorials or

opinions aired by a broadcast facility. (App. A165), Colo. Const. art. XXVIII,

2(7)(b), 2(8)(b). Likewise, it is the timing of the speech that triggers disclosure

of electioneering communications occurring within thirty days before a primary

election or sixty days before a general election. Colo. Const. art. XXVIII, 7. In

2Contrary to Citizens Uniteds position on the unconstitutionality of regulatingbased on speaker identity, (App. A60), the Supreme Court recognized that anycategorical approach to speaker identity may well be untenable when itacknowledged that prohibiting speakers who are foreign individuals or associationsfrom influencing this countrys political processmight be permissible. SeeCitizens United,558 U.S. at 911.



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Colorado, all speakers who engage in independent expenditures or electioneering

communications must disclose contribution and expenditure information,

regardless of their identity or the content of their message, unless they are printed

or broadcast under limited exemptions. Colo. Const. art. XXVIII, 2(7)(b),

2(8)(b). As a consequence, the District Court correctly concluded that exacting,

rather than strict, scrutiny was the appropriate standard.

2. Colorados Reporting and Disclosure Provisions AreSubstantially Related to Important Governmental Interests

Colorado law requires the sponsor of independent expenditures of over

$1000 in any calendar year to identify itself to the Secretary of State, disclose the

amount spent on the expenditure and any contributions of more than $250 it

received that were earmarked to underwrite independent expenditures, and identify

itself in the communication. Similarly, Colorado law requires the sponsor of an

electioneering communication to identify itself to the Secretary of State, disclose

the amount spent on the advertisement and any contributions earmarked to

underwrite it, and identify itself in the advertisement itself. Important

governmental interests support each of these requirements.

[D]isclosure serves informational functions, as well as the prevention of

corruption and the enforcement of the contribution limitations.Buckley, 424 U.S.

at 83;see also McConnell, 540 U.S. at 196. More specifically, this Court has

identified disclosure-related governmental interests in (a) encouraging maximum



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transparency in political activity by providing financial information to the public,

(b) deterring actual or apparent corruption, and (c) detecting violations and

facilitating enforcement of the law. Citizens for Responsible Govt State Political

Action Comm. v. Davidson, 236 F.3d 1174, 1197 (10thCir. 2000). These interests

readily satisfy exacting scrutiny.

a. Disclosure Furthers the Important Government Interest inProviding Information to the Public.

Buckley held that the governments important interest in providing

information to the public was sufficient to justify mandatory disclosure of

campaign contributions. Buckley, 424 U.S. at 66-67.McConnell then applied

Buckleyto uphold electioneering communication disclosure provisions.

McConnell, 540 U.S. at 196, 200-01;see also id. at 237-43 (upholding broadcast

station record-keeping requirements in part to help both the regulatory agencies

and the public determine the amount of money that individuals or groups,

supporters or opponents, intend to spend to help elect a particular candidate).

Most recently, in Citizens United, the Supreme Court rejected Citizens Uniteds

argument that federal disclosure requirements should not apply to advertisements

supporting itsHillary movie, reasoning that [e]ven if the ads only pertain to a

commercial transaction, the public has an interest in knowing who is speaking

about a candidate shortly before an election. 558 U.S. at 369. By provid[ing]

the electorate with information about the sources of election-related spending,



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disclosure allows the public to make informed choices in the political

marketplace. Id.at 367. The informational interest alonecan be sufficiently

important to justify disclosure requirements. Id. at 369.

Citizens United engaged in no analysis of these holdings, instead arguing

that if the public has a right to know who funded Citizens Uniteds film, it equally

has a right to know whether a political candidate, public-advocacy group, or

political party helped fund an investigative journalists magazine piece or

television story. (App. A63). The District Court properly rejected this argument

pointing out that the record is devoid of any evidence that political groups fund

news stories by paying off journalists. (App. A168).

Citizens United fails to distinguish between restrictions on speech based

upon speaker identity and the longstanding and well established governmental

interest in disclosure. [T]he disclosure requirement [is] a minimally restrictive

method of furthering First Amendment values by opening the basic processes of

our federal election system to public view.Buckley, 424 U.S. at 81-82. The law

has not changed since the Supreme Court held with regard to Citizens Uniteds

similar claims in 2010 that [d]isclaimer and disclosure requirements may burden

the ability to speak, but they do not prevent anyone from speaking.Citizens

United, 558 U.S. at 366. On this basis, the District Court appropriately denied

Citizens Uniteds request for a preliminary injunction.



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b. Disclosure Furthers the Important Government Interest inEnabling Enforcement of Campaign Finance Laws.

Courts also have recognized that disclosure requirements enable detection

and enforcement of substantive campaign finance laws. For example,Buckley

upheld federal disclosure requirements as advancing the governments interest in

gathering the data necessary to detect violations of the contribution limitations.

Buckley, 424 U.S. at 68. McConnellsimilarly held that mandatory disclosure was

constitutional in light of the interest in gathering the data necessary to enforce

more substantive electioneering restrictions.McConnell, 540 U.S. at 196; id.at

237; accord, Citizens for Responsible Govt, 236 F.3d at 1197 (recognizing

recordkeeping, reporting, and disclosure requirements as an essential means of

gathering the data necessary to detect violations).

This enforcement interest applies equally to independent expenditures. The

Supreme Court has recognized Congresss legitimate fear that, if disclosure were

limited to spending by or in coordination with candidates, efforts would be made,

as they had been in the past, to avoid the disclosure requirements by routing

financial support of candidates through avenues not otherwise covered by a

campaign finance regulatory scheme. See Buckley, 424 U.S. at 76. Thus, the

governments interest as it relates to disclosure of independent campaign-related

spending can be as strong as it is in coordinated spending. See Buckley, 424 U.S.



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at 81; Citizens for Responsible Govt, 236 F.3d at 1197 (upholding state disclosure

requirements for independent expenditures).

In Colorado, any person can file a complaint alleging a violation of

campaign finance law, and such complaint will be referred to an administrative law

judge, who shall determine if such a violation has occurred. Colo. Const. art.

XXVIII, 9(2). Without disclosure of independent spending, persons seeking to

enforce compliance with Colorado campaign finance laws would have difficulty

determining when or where electioneering communications and independent

expenditures are broadcast, as well as who is funding them and in what amounts.3

Colorado voters would not know if communications purporting to comply with

Colorado law actually do so. Thus, Colorados disclosure requirements serve the

governments important interest in gathering the data necessary to ensure that

Colorado law is properly enforced.

c. Citizens United Is Not Exempt from ColoradosReporting and Disclosure Requirements

Citizens Uniteds proposed activities in regards to its film,Rocky Mountain

Heist, as it has described them in this case, render it ineligible to invoke any of the

enumerated exemptions for electioneering communications or independent

expenditures in Colorado law. In particular, the film is not a news article, editorial

3For example, without disclosure of independent spending it would be impossibleto determine if a foreign corporation is unlawfully expending moneys on anindependent expenditure in violation of 1-45-107.5(1), C.R.S.



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endorsement, opinion or commentary writing, or letter to the editor printed in a

newspaper, magazine or other periodical not owned or controlled by a candidate or

political party. Nor is the film an editorial endorsement or opinion aired by a

broadcast facility not owned or controlled by a candidate or a political party. See

Colo. Const. art. XXVIII, 2(7)(b), 2(8)(b).

Citizens United focuses on these two exemptions, calling them media

exemptions, and contends that because it is ineligible to claim either, the entire

reporting and disclosure regime must be found constitutionally infirm under the

First Amendment. (App. A49). Citizens United argued that without an exemption,

newspapers would be obligated to disclose the names of subscribers, advertisers

and lenders, (App. A191-92), but it supplied no evidence that newspapers receive

contributions earmarked for independent expenditures or electioneering

communications. (App. A281). Citizens United also complains that it, as an

established filmmaker, should not be treated differently than a new press entity that

began distributing a newsletter. (App. A145). These examples, however, do not

hold up when viewed in light of the substantial relation between Colorados

important governmental interest and the disclosure scheme as a whole.

As the District Court points out, the press entity status that Citizens United

seeks does not exist in Colorado. (App. A179). The Secretary reached this same

conclusion when he denied Citizens Uniteds request for a Declaratory Order



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exempting it from disclosure requirements. (App. A44-A46). The Colorado

disclosure exemptions are not premised on the type of entity, but on the form, or in

some cases the timing, of speech.4 Citizens United admits as much, noting that

Colorados media exemptions turn primarily on the medium of transmission i.e.

whether speakers express their views via a print-publication or speaker-owned

broadcast facility. (App. A146).

Nonetheless, even under federal law, where a press entity exemption is

recognized, the Supreme Court rejected Citizens Uniteds characterization that

Hillary was just a documentary film that examine[ed] certain historical events.

Citizens United, 558 U.S. at 325. Instead, the Supreme Court found that the

movies consistent emphasis is on the relevance of these events to Senator

Clintons candidacy for President. Id. Indeed, the Court found thatHillaryin

essence, is a feature-length negative advertisement that urges viewers to vote

against Senator Clinton for President. Id.

Similarly, a division of the Colorado Court of Appeals rejected an argument

by Committee for the American Dream (CAD) that it was exempt from reporting

and disclosure obligations. Construing the regular business exemption in

4The Colorado Supreme Court has never interpreted the exemptions to theelectioneering communications or independent expenditure provisions contained inthe Colorado Constitution. Thus, it is not clear how the Colorado Supreme Courtwould construe those provisions or whether it would find that a press exemptionexists.



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Colorados definition of electioneering communications,see Colo. Const. art.

XXVIII, 2(7)(b)(III), the court found that the goal of CAD was to influence

elections. Thus, exempting CAD, an entity that regularly made electioneering

communications, from reporting requirements would frustrate Article XXVIIIs

purpose of full disclosure. Colo. Citizens for Ethics in Govt v. Committee for the

American Dream, 187 P.3d 1207, 1216 (Colo. Ct. App. 2008).

Here, Citizens United asserts thatRocky Mountain Heist will include audio

and video content of events where participants expressly advocate the election or

defeat of one or more candidates in the November 4, 2014 elections. (App. A17,

A56). Further, [t]he Film will include visual and audio content of Governor John

Hickenlooper, who is the Democratic Party candidate for the Office of Governor of

Colorado in the November 4, 2014 elections. (App. A17, A56). There is nothing

to suggest, based on these statements and Citizens Uniteds history, thatRocky

Mountain Heist will be anything other than a feature length negative advertisement

that urges viewers to vote against Governor Hickenlooper during the weeks before

the November election, and that does not fall within the articulated exemptions to

Colorado law. This is precisely the type of communication to which Colorados

disclosure requirements apply.

In Colorado, the only contributors subject to disclosure are those who

earmark their donations for the purpose of funding an independent expenditure or



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an electioneering communication. 1-45-107.5(4), C.R.S., 8 CCR 1505-6-11.1.

The record here includes no evidence that any entity that has engaged in speech

triggering an exemption from Colorados reporting and disclosure requirements,

has also accepted earmarked donations for the purpose of funding independent

expenditures or electioneering communications. To the contrary, as the District

Court found, if the Denver Post produced a film expressly advocating for the

reelection of John Hickenlooper, it would be forced to comply with the disclosure

requirements. (App. A171). Thus, Citizens Uniteds argument that Colorado law

discriminates against it for who it is, (identity), and for what it says, (content), is

without merit. Like all speakers whose form of communication does not meet the

exemptions under Colorado law, Citizens United is required to disclose the source

of its earmarked contributions.

D.

Citizens United Demonstrated No First Amendment Burden

Arising from the Reporting and Disclosure Provisions and Thus

Failed to Demonstrate Irreparable Harm

Citizens United has not demonstrated any cognizable loss of First

Amendment rights arising from Coloradosdisclosure provisions. The Tenth

Circuit has emphasized the importance of showing irreparable harm: In examining

the preliminary injunction factors, courts have consistently noted that [b]ecause a

showing of probable irreparable harm is the single most important prerequisite for

the issuance of a preliminary injunction, the moving party must first demonstrate



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that such injury is likely before the other requirements for the issuance of an

injunction will be considered.Dominion Video Satellite, Inc. v. Echostar Satellite

Corp., 356 F.3d 1256, 1260 (10thCir. 2004).

1. Citizens United Presented No Evidence that the Reporting andDisclosure Provisions Chill Speech

Citizens United claims that its First Amendment rights will be irreparably

infringed if it must comply with Coloradosdisclosure requirements for its movie,

Rocky Mountain Heist, because compliance will necessarily result in deprivation or

delay in its ability to engage in political speech. (App. A71). But nowhere does

Citizens United indicate that it will not produce and distribute its film and

supporting advertisements absent an injunction. Rather, Citizens United now says

it will begin advertising and marketingRocky Mountain Heistin Colorado in less

than two weeks so that it is publicly available ahead of the November 4 general

election. (Doc. 01019316617 at 19-20). Moreover, in 2010 the Supreme Court

found that Citizens United has been disclosing its donors for years and has

identified no instance of harassment or retaliation. Citizens United, 558 U.S. at

370.

It is well-settled in the electoral context that disclosure requirements do not

prevent anyone from speaking.Id.at 366. That is certainly the case with

Colorados disclosure requirements. Further, because in Colorado any person can

file a complaint alleging a violation of campaign finance law,seeColo. Const., art.



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XXVIII, 9(2), an injunction enjoining the Secretary of State from enforcing the

laws against Citizens United would be ineffectual. In other words, even if Citizens

United were able to demonstrate that irreparable harm would ensue if it had to

comply with the disclosure requirements of Colorado law, the proposed

preliminary injunction would not prevent any person from filing a complaint

against Citizens United to enforce Colorado campaign finance law.

The Supreme Court applied exacting scrutiny and upheld disclosure

requirements at issue in Citizens United v. FECbecause they provided the

electorate with information about the identity of the speaker and did not impose a

chill on political speech, even for independent expenditures. Republican Party v.

King, 741 F.3d 1089, 1095 n.3 (10th Cir. 2013). The District Court did not abuse

its discretion when it did the same here.

2.

Citizens Uniteds Delay in Filing this Action and in Moving fora Preliminary Injunction Indicates an Absence of IrreparableHarm.

Citizens United first filed a Petition for Declaratory Order on April 18, 2014,

seeking an order from the Secretary of State granting it an exemption from

Colorados reporting and disclosure requirements for its activities related toits

movie,Rocky Mountain Heist. (App. A56). The Secretary of State issued a final

decision on the Petition on June 5, 2014. (App. A47). Rather than immediately

appeal the Secretary of States Declaratory Order to the Colorado District Court



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pursuant to 24-4-106, C.R.S., Citizens United waited over two months to file its

complaint in U.S. District Court. Such delay indicates an absence of the

irreparable harm required to support the issuance of a preliminary injunction. GTE

Corp. v. Williams, 731 F.2d 676, 678 (10thCir. 1984) (Delay . . . undercuts the

sense of urgency that ordinarily accompanies a motion for preliminary relief and

suggests that there is, in fact, no irreparable injury.)

Citizens Uniteds unnecessary delay in seeking relief may be viewed as

inconsistent with a claim that plaintiff is suffering great injury or, in the case of

preliminary injunctive relief, that there is an urgent need for immediate relief and

that a judgment would be rendered ineffective unless some restraint is imposed on

defendant pending an adjudication on the merits.Utah Gospel Mission v. Salt

Lake City Corp., 316 F. Supp. 2d 1201, 1221-22 (D. Utah 2004), affd on other

grounds, 425 F.3d 1249 (10th Cir. 2005).

Citizens United failed to demonstrate irreparable harm, and the District

Court properly denied it a preliminary injunction.

E.

The Balance of the Equities Favors Disclosure.

Citizens United failed to demonstrate that the balance of the equities weighs

in its favor. Indeed, Citizens United did not identify any specific harm that it will

suffer if the injunction is not granted, such as harm to its donors arising from

disclosure, or monetary costs incurred to comply with the disclosure requirements.



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Instead Citizens United simply stated that Colorados disclosure laws are

unconstitutional and thus an injunction is proper. (App. A72). Citizens United

now indicates that it will release the movie and run the ads to support the movie

even if it has to comply with Colorados disclosure provisions. (Doc.

01019316617 at 2, 19-20). It, therefore, is purely speculative that Citizens United

will suffer any First Amendment injury here.

That speculation was not enough to tip the balance in Citizens Uniteds

favor. In contrast, the State of Colorado has an important interest in the

enforcement of its campaign finance laws, which were enacted, in part, to

provid[e] for full and timely disclosure of campaign contributions, independent

expenditures, and funding of electioneering communications, and strong

enforcement of campaign finance requirements.Colo. Const. art. XXVIII, 1.

As a consequence, the people of Colorado will be harmed if Citizens United

becomes exempt from disclosure and reporting obligations.

F.

Disclosure Serves the Public Interest.

There is a strong public interest in disclosure. The public has an interest in

gathering the data necessary to detect violations of campaign finance law, in

publicizing large contributions and expenditures to deter actual corruption and

avoid the appearance of corruption,and in knowing who is speaking about

candidates before an election. See Buckley, 424 U.S. at 67-68. Disclosure also



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allows voters to place each candidate in the political spectrum more precisely than

is often possible solely on the basis of party labels and campaign speeches. See

Sampson v Buescher, 625 F3d 1247, 1256 (10th Cir. 2010). The sources of a

candidates financial support and opposition also alert the voter to the interests to

which a candidate is most likely to be responsive and thus facilitates predictions of

future performance in office. Id. If Citizens United is allowed to evade disclosure,

then Colorado voters will not have critical information about who is airing and

paying to finance its movie and its advertisements.

IV. CONCLUSION

For the foregoing reasons, the Intervenor-Defendants respectfully request

that the Court affirm the District Courts denial of Citizens Uniteds Motion for

Preliminary Injunction.



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Dated this 3rdday of October, 2014.

Respectfully submitted,

By: s/Martha M. TierneyMartha M. TierneyEdward T. RameyHeizer Paul LLP2401 15th Street, Suite 300Denver, Colorado 80202Phone Number: (303) 595-4747FAX Number: (303) 595-4750

E-mail: [email protected]: [email protected] for Intervenor-Defendants



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CERTIFICATE OF COMPLIANCE

As required by Fed. R. App. P. 32(a)(7)(C), I certify that this brief is proportionallyspaced and contains 5,867 words, excluding the parts of the brief exempted by Fed.R. App. P. 32(a)(7)(B)(iii).

Complete one of the following:I relied on my word processor to obtain the count and it is Microsoft OfficeWord 2010.I counted five characters per word, counting all characters including citationsand numerals.

I certify that the information on this form is true and correct to the best of myknowledge and belief formed after a reasonable inquiry.

s/Martha M. Tierney

Dated: October 3, 2014



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CERTIFICATE OF DIGITAL SUBMISSION

No privacy redactions were necessary. Therefore, the document submitted indigital form is an exact copy of the written document filed with the Clerk. Inaddition, the digital submission has been scanned for viruses with the most recentversion of a commercial virus scanning program, TREND MICRO Worry FreeBusiness Security Advanced, Version 6.0 SP3, engine Version 9.700.1001, VirusPattern File 10.239.00, dated October 3, 2014, and according to the program is freeof viruses.

s/Martha M. Tierney

Dated: October 3, 2014



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CERTIFICATE OF SERVICE

I hereby certify that on this 3rd day of October, 2014 a true and correct copyof the foregoing INTERVENOR-DEFENDANTS BRIEFwas electronicallyfiled with the Clerk of the Court using the CM/ECF system which will sendnotification of such filing to the following email addresses:

Theodore B. OlsonAmir C. TayraniLucas C. TownsendGibson, Dunn & Crutcher LLP1050 Connecticut Avenue, N.W.Washington, D.C. [email protected]

[email protected]@gibsondunn.com

Attorneys for Plaintiff-Appellant

Michael BoosCitizens United1006 Pennsylvania Avenue, S.E.Washington, D.C. [email protected]

Attorney for Plaintiff-Appellant

Daniel D. DomenicoLeeAnn MorrillMatthew D. GroveKathryn Starnella

Colorado Attorney GeneralPublic Officials UnitState Services Section1300 Broadway, 6thFloorDenver, CO [email protected]@[email protected]@state.co.us

Attorneys for Defendants-Appellees

s/Martha M. Tierney


Documents

Intervenors Brief in 10th Circuit