Victory! Secretary of State Advisory Opinion Designates Upcoming Citizens United Colorado Film as an ‘Electioneering Communication’ Subject to Disclosure Requirements

On Tuesday June 3rd the Colorado Secretary of State’s office held a hearing to consider Citizens United’s request that their upcoming film on Colorado politics be exempted from the definition of ‘electioneering communication’ and associated funding disclosure requirements under Colorado State Law. Colorado Common Cause provided testimony and submitted public comments arguing that the petition should be denied and that Citizens United should have to play by the same rules as everyone else. On Thursday, the Deputy Secretary of State Suzanne Staiert rejected Citizens United’s arguments, declaring that Citizens United will have to follow disclosure laws if they try to influence elections.

Colorado Common Cause argued, and the Secretary of State’s office found, that Citizens United cannot, by a plain language reading of the Colorado Constitution, be considered a member of the press to which disclosure exemptions apply. Furthermore, Common Cause contended that numerous statements by the leadership of Citizens United and the content of previous Citizens United ‘documentary’ films depict a clear organizational policy of attempting to influence elections, rendering the upcoming film ineligible for a ‘regular course of business’ disclosure exemption. The Deputy Secretary of State agreed, finding that ‘there certainly seems to be indicia that the intent of the film and its advertising is to influence the election.’ As such, Colorado disclosure laws will apply to the film and its associated advertisements. This victory doesn’t stop Citizens United from making their movie or running their ads, but it will ensure that Coloradans know where the money is coming from.

Despite the win, the fight isn’t over. The issues raised by Citizens United’s request are not fully settled. In February 2012, the Colorado Secretary of State adopted a rule that drastically limited the types of election communications to which Colorado disclosure laws apply. The Colorado Court of Appeals struck down this rule following a joint lawsuit by Colorado Common Cause and Colorado Ethics Watch. However, during the Tuesday Citizens United hearing, Secretary of State Gessler made it clear he was grudgingly following the law, repeatedly expressing frustration that his rule had been invalidated by the Court of Appeals. The Secretary of State has appealed their loss on these rules to the Colorado Supreme Court.

We don’t know what will happen next. But we do know the fight to maintain and expand our disclosure laws is ongoing. And because the citizens of Colorado have repeatedly demonstrated a commitment to disclosure laws that keep unregulated dark money out of our government, all of us will need to help when the laws must once again be protected.

Keir Lamont is a student at Georgetown Law, and an intern this summer with Colorado Common Cause.