815 F.3d 1267
10th Cir.2016Background
- Coalition for Secular Government, a small Colorado nonprofit run solely by Dr. Diana Hsieh, planned to publish and distribute papers opposing a 2014 statewide "personhood" ballot initiative and expected to raise/spend about $3,500.
- Under Colorado law (Art. XXVIII, Colo. Rev. Stat. §1-45-101 et seq., and Secretary rules), an "issue committee" must register and make frequent disclosures once it accepts or spends over $200, including contributor names/addresses for $20+, and occupation/employer for $100+; numerous filing deadlines and penalties apply.
- The Coalition previously registered and complied in 2008 and 2010, experiencing administrative burdens and donor attrition from disclosure requests; it sought declaratory and injunctive relief before the 2014 election.
- The district court enjoined enforcement, holding the Coalition’s expected activity did not require registration/disclosure and that disclosure would cause irreparable First Amendment injury; the Secretary appealed.
- The Tenth Circuit applies exacting scrutiny (as in Sampson) and holds Colorado’s issue-committee disclosure regime unconstitutional as applied to the Coalition: the public’s informational interest in disclosure at the Coalition’s $3,500 scale is minimal and is outweighed by substantial burdens on association and expression.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Colorado may require registration/disclosure for groups raising/spending ~$3,500 on a statewide ballot initiative | Coalition: disclosure burdens (frequent reports, donor info, separate account, penalties) substantially chill First Amendment rights and cannot be justified for small-dollar activity | Secretary: informational interest in initiative context is substantial; $200 constitutional floor and statutory scheme valid; exacting scrutiny unnecessary | Held: As-applied challenge granted; regime fails exacting scrutiny for Coalition — disclosure interest minimal at this scale and burdens substantial |
| Appropriate standard of review | Coalition: apply exacting scrutiny to disclosure requirements (protecting associational/speech interests) | Secretary: invoke lesser rational-basis-type review for monetary threshold (Buckley) | Held: Court applies exacting scrutiny (Sampson controls for as-applied challenges) |
| Whether Colorado’s $200 monetary trigger must be facially invalidated | Coalition sought relief against application to it; district court did not facially invalidate $200 | Secretary urged facial invalidation to give certainty and permit legislative fix | Held: Court declines to decide facial validity of $200 threshold; leaves that to Colorado legislature or future litigation |
| Whether procedural improvements (TRACER, guidance) cure burdens | Coalition: administrative tools reduce but do not eliminate substantial burdens on small-scale speakers and donors | Secretary: improved systems and organizational form (nonprofit corp) mitigate burdens relative to Sampson | Held: Improvements insufficient — burdens still substantial for Coalition’s alone-run operation and small-dollar activity |
Key Cases Cited
- Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010) (applied exacting scrutiny and held Colorado issue-committee scheme unconstitutional as applied to small-scale group)
- Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) (discusses standards for disclosure and speaker-related First Amendment principles)
- Buckley v. Valeo, 424 U.S. 1 (1976) (establishes disclosure doctrine and exacting scrutiny concept in campaign finance)
- Doe v. Reed, 561 U.S. 186 (2010) (describes use of exacting scrutiny for First Amendment challenges to disclosure)
- Canyon Ferry Rd. Baptist Church v. Unsworth, 556 F.3d 1021 (9th Cir. 2009) (observes that informational value of disclosure declines with small expenditures)
- Gessler v. Colorado Common Cause, 327 P.3d 232 (Colo. 2014) (Colorado Supreme Court decision relevant to state officials’ interpretation of Article XXVIII)