Colorado Ethics Watch v. Senate Majority Fund, LLC
2012 CO 12
| Colo. | 2012Background
- In 2008, SMF and CLF, registered as 527 political organizations, ran multiple ads opposing or supporting candidates.
- Neither SMF nor CLF registered as a political committee nor followed the $500/organization contribution cap for political committees.
- Ethics Watch sued with complaints alleging the ads violated article XXVIII by constituting expenditures and triggering political-committee regulation.
- ALJ dismissed, agreeing no express advocacy since ads lacked explicit vote-for language; COA affirmed dismissal.
- Colorado Supreme Court granted certiorari to determine the proper scope of 'express advocacy' under article XXVIII, §2(8).
- The Court ultimately held express advocacy is limited to Buckley’s magic words or substantially similar synonyms and remanded for dismissal consistent with that ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Definition of express advocacy | Ethics Watch seeks broader scope beyond Buckley. | SMF/CLF urge narrow Buckley-based scope. | Express advocacy is limited to Buckley words or substantially similar synonyms. |
| Effect of Buckley footnote 52 | Footnote 52 supports broader, functional equivalence. | Footnote 52 is nonexhaustive but not a basis for expansion here. | No functional-equivalence expansion; magic-words standard controls. |
| Impact of constitutional history (Amendment 27) on scope | Amendment 27 broadens expenditure to include broader advocacy. | electorate intended a narrow express-advocacy standard existing in 2002 Bluebook context. | electorate intended narrow express-advocacy; adhere to magic words or equivalents. |
| Applicability to the ads at issue | The ads were unambiguous endorsements/conduct that constitute express advocacy. | Ads identify candidates/issues without explicit election exhortations. | Ads do not contain express advocacy; no expenditures under §2(8). |
Key Cases Cited
- Buckley v. Valeo, 424 U.S. 1 (U.S. 1976) (magic-words test for express advocacy)
- League of Women Voters v. Davidson, 23 P.3d 1266 (Colo. App. 2001) ( Buckley-based scope of express advocacy in Colorado)
- WRTL v. Massachusetts, 551 U.S. 449 (U.S. 2007) (limits on electioneering communications; not opinion-based broadening of express advocacy)
- McConnell v. FEC, 540 U.S. 93 (U.S. 2003) (recognizes functional equivalence in narrowly defined context)
- Massachusetts Citizens for Life v. FEC, 479 U.S. 238 (U.S. 1986) (express advocacy examples; explicit directives)