STATE OF COLORADO

OFFICE OF ADMINISTRATIVE COURTS

1525 Sherman Street, 4th Floor, Denver, Colorado 80203

IN THE MATTER OF THE COMPLAINT FILED BY

COLORADO ETHICS WATCH REGARDING ALLEGED
CAMPAIGN AND POLITICAL FINANCE VIOLATIONS
BY COLORADO CAMPAIGN FOR LIFE AND ROCKY
MOUNTAIN GUN OWNERS
COURT USE ONLY
CASE NUMBER:

OS 2014-0025

FINAL AGENCY DECISION

This matter is before Administrative Law Judge (ALJ) Robert Spencer upon
complaint by Colorado Ethics Watch (CEW) that two Colorado non-profit corporations,
Colorado Campaign for Life (CCL) and Rocky Mountain Gun Owners (RMGO), made
electioneering communications prior to the June 24, 2014 state primary election without
filing the disclosures required by Colorado law. Hearing was held on December 17, 2014.
CEW was represented by Margaret Perl, Esq. and Luis Toro, Esq. CCL and RMGO were
represented at the hearing by James O. Bardwell, Esq.1
Case Summary
Within 30 days preceding the June 24, 2014 state primary election, CCL and
RMGO each sent mass mailings to persons expected to be voters in the election. CCL
sent two political mailers. One criticized Lang Sias, a candidate in Senate District 19, for
refusing to respond to CCLs pro-life survey and being Apathetic to the Unborn.
Conversely, the mailer praised Mr. Sias primary election opponent, Laura Woods, for
being Committed to the Unborn. The second lodged identical criticisms against Mario
Nicolais, a candidate in Senate District 22, and praised his opponent, Tony Sanchez.
RMGOs mailer was a Dear Friend letter criticizing Mr. Nicolais for his presumed antigun views, while praising his opponent, Mr. Sanchez.
On September 9, 2014, CEW filed a complaint with the Secretary of State alleging
that the mailers produced by CCL and RMGO were electioneering communications
within the meaning of Colorados fair campaign practice laws, and that Respondents
1

Laurin H. Mills, Esq. and David A. Warrington, Esq., LeClairRyan, PC, have also entered their appearance
on behalf of Respondents, but did not appear at the hearing.

violated that law by failing to report to the Secretary the money spent and contributions
received to produce and distribute the mailers. As required by Colo. Const. art. XXVIII,
9(2), the Secretary referred the complaint to the ALJ for hearing.
Hearing was initially scheduled for September 23, 2014, but continued upon
Respondents request and reset for November 6, 2014. On October 17, 2014,
Respondents filed suit in federal district court seeking declaratory relief and a preliminary
injunction on the grounds that the electioneering communication provisions of the fair
campaign practice laws were unconstitutional on their face and as applied to
Respondents. On November 5, 2014, Respondents filed with the ALJ an unopposed
motion to continue the administrative hearing to December 17, 2014. That motion was
granted. On December 8, 2014, Respondents filed in federal district court a motion for
temporary restraining order asking the court to stay the administrative hearing pending
the courts ruling upon Respondents complaint for preliminary injunction. On December
16th, the federal district court denied Respondents motion and the administrative hearing
proceeded as scheduled. The federal court did not rule upon Respondents claims of
unconstitutionality, but abstained from addressing those issues pending the outcome of
the administrative litigation and state judicial review.
At the administrative hearing, the parties stipulated to facts that essentially prove
Respondents failed to comply with the state law requiring disclosure of electioneering
communications. Because the ALJ is without jurisdiction to resolve challenges to the
facial constitutionality of the fair campaign practice laws, the scope of the ALJs review
will be limited to Respondents claims that the electioneering communication laws are
unconstitutional as applied to them.
For reasons explained below, the ALJ concludes that Respondents did violate the
fair campaign practice laws by failing to file reports of their electioneering
communications, and that those laws are not unconstitutional as applied to Respondents.
The ALJ therefore imposes a sanction of $50 per day for Respondents non-disclosures.
Findings of Fact
The parties stipulate to the following facts:
1.

CCL and RMGO are Colorado non-profit corporations.2

2.
Colorados most recent primary election for nomination of candidates to the
state legislature was held June 24, 2014.
3.
Within 30 days preceding the primary election, CCL and RMGO each
produced and delivered mass mailings to voters in the primary election.
4.
CCL delivered two mailers. One mailer unambiguously identified Lang Sias,
a candidate in Senate District 19, and criticized Mr. Lang because he refused to answer
CCLs survey regarding his position on abortions. The mailer labeled Mr. Sias as
Apathetic to the Unborn, and posted his picture adjacent to the picture of an alleged
2

According to Respondents pleadings filed in federal district court, RMGO is Colorados largest statebased, Second Amendment grassroots lobbying organization; and CCL is a Colorado-based and focused
grassroots, pro-life lobbying organization. Plaintiffs Memorandum in Support of Motion for Preliminary
Injunction, p. 3.

abortion mill operator accused of murderous crimes. The mailer asked voters to
contact Mr. Sias and ask why he wont publically stand to defend the unborn; and urged
pro-life voters to act and be heard. Ex. 1, p. 1.
5.
The reverse side of this mailer featured pictures of Mr. Sias primary election
opponent, Laura Woods, holding babies. The mailer labeled Ms. Woods as Committed
to the Unborn, and praised her for defending the rights of the unborn by answering
CCLs survey 100% Pro-Life. The mailer unambiguously identified Ms. Woods as a
candidate in Senate District 19, and advised voters to Vote Your Values. Ex. 1, p. 2.
6.

This mailer was sent to voters in Senate District 19.

7.
CCLs second mailer was identical in format, but criticized Mario Nicolais, a
candidate in Senate District 22, as Apathetic to the Unborn. The reverse side of the
mailer unambiguously identified Mr. Nicolais primary election opponent, Tony Sanchez,
as a candidate in Senate District 22, and praised Mr. Sanchez as being Committed to
the Unborn. Ex. 2.
8.

This mailer was sent to voters in Senate District 22.

9.

CCL spent more than $1,000 to produce and send its two mailers.

10.
RMGOs mailer was a four-page Dear Friend letter accompanied by a form
soliciting contributions to RMGO.3 The letter unambiguously identified Mario Nicolais and
criticized him for refusing to answer RMGOs survey asking very specific questions about
where each candidate stands on your gun rights. The letter suggested that Mr. Nicolais
was anti-gun and asked what is Mario Nicolais hiding? It advised voters to contact
Mario Nicolais at once and demand that he answer Rocky Mountain Gun Owners
candidate survey and pledge to stand up to the gun-grabbers in Denver. Ex. 3.
11.
The RMGO letter also unambiguously identified Tony Sanchez as a
candidate for Senate District 22 and praised him for answering RMGOs survey 100% in
favor of your right to keep and bear arms, and for being a RMGO member and vocal
supporter of gun rights.
12.
The letter went on to state that the upcoming elections will have a greater
impact on our Second Amendment rights than any other election in our lifetime and that
RMGOs goal was to make sure every person in Colorado who cares about the Second
Amendment knows exactly where their candidates stand. Ex. 3.
13.

This mailer was sent to voters in Senate District 22.

14.

RMGO spent more than $1,000 to produce and send its mailer.

15.
Neither CCL nor RMGO filed electioneering communication reports with the
Secretary of State disclosing money spent or contributions received to produce and
deliver their mailers.

Although the letter is dated May 21, 2014, the parties stipulated at the hearing that it was mailed to voters
sometime within the 30 days preceding the June 24, 2014 primary election.

Discussion
Colorados Fair Campaign Practice Laws
Colorados campaign finance disclosure and reporting requirements are found in
the Colorado Constitution, the Colorado Fair Campaign Practices Act (FCPA), and
regulations published by the Secretary of State. See Colo. Const. art. XXVIII; C.R.S.
1-45-108; and 8 CCR 1505-6, respectively. The ALJ will collectively refer to these laws
as Colorados fair campaign practice laws. The laws impose numerous duties upon
political candidates, candidate committees, and various other types of committees,
including a duty to register with the Secretary of State and to report campaign
contributions and expenditures. Violation of these duties can result in civil penalties of up
to fifty dollars per day. Colo. Const. art. XXVIII, 10(2)(a). It is neither alleged nor proven
that either Respondent was an entity required to register with the Secretary of State.
The fair campaign practice laws also impose a duty upon any person spending
more than $1,000 per calendar year on electioneering communications to report to the
Secretary of State certain details regarding the money spent and contributions received
to make those communications. Failure to file the required report subjects the person to
a $50 per day civil penalty. It is alleged and undisputed that Respondents mailers were
electioneering communications and that Respondents failed to file the required reports.
Respondents Mailers Were Electioneering Communications
The Colorado Constitution defines an electioneering communication as,
[A]ny communication broadcasted by television or radio, printed in a
newspaper or on a billboard, directly mailed or delivered by hand to
personal residences or otherwise distributed that:
(I) Unambiguously refers to any candidate; and
(II) Is broadcasted, printed, delivered, or distributed within thirty days
before a primary election or sixty days before a general election; and
(III) Is broadcasted to, printed in a newspaper distributed to, mailed to,
delivered by hand to, or otherwise distributed to an audience that
includes members of the electorate for such public office.
Colo. Const. art. XXVIII, 2(7)(a).4
A candidate includes any person who seeks nomination . . . to any state . . .
office that is to be voted on in this state at any primary election. Art. XXVIII, 2(2).
The Secretary of States rules add to the definition of an electioneering
communication. Rule 1.7 states that, to be an electioneering communication, a
communication must not only meet the definition of article XXVIII, 2(7), but must also
be the functional equivalent of express advocacy in that it is subject to no reasonable
interpretation other than an appeal to vote for or against a specific candidate. 8 CCR
1505-6, Rule 1.7, 1.7.1. In addition, Rule 1.7.3 states that a communication is not the
functional equivalent of express advocacy if it does not mention any election, candidate,
4

Section 2(7)(b) lists a number of exceptions, none of which apply in this case.

or voting by the general public; does not take a position on the candidates character,
qualifications, or fitness for office; and merely urges a candidate to take a position with
respect to an issue or urges the public to adopt a position and contact a candidate with
respect to an issue.5
Applying these laws to the undisputed facts, the ALJ finds that Respondents
mailers were electioneering communications. Even under the Secretary of States
restrictive Rule 1.7, the mailers were electioneering communications because they are
subject to no reasonable interpretation other than an appeal to vote against one named
candidate in favor of another named candidate. For example, the CCL mailers refer to
Senate Districts 19 and 22; attack Sias and Nicolais as being Apathetic to the Unborn
while praising their political opponents, Woods and Sanchez, as being Committed to the
Unborn; and urge pro-life voters to act and be heard.
Similarly, the RMGO letter unambiguously refers to Nicolais and Sanchez as
Senate District 22 candidates, and characterizes Nicolais as anti-gun while praising
Sanchez for being a vocal supporter of gun rights. The letter specifically refers to the
upcoming elections and states that its purpose is to let voters know exactly where their
candidates stand.
Respondents Were Required to Report Their Electioneering Communications
The Colorado Constitution and the FCPA require any person spending more than
$1,000 per calendar year on an electioneering communication to file a report with the
Secretary of State that includes the amount spent on such communication and the name
and address of any person contributing more than $250 to make the communication. Art.
XXVIII, 6(1); 1-45-108(1)(a)(III). If the person contributing $250 or more is a natural
person, the report must also include the occupation and employer of that person. Id.
A person is broadly defined to include any natural person, partnership,
committee, association, corporation, labor organization, political party, or other
organization or group of persons. Colo. Const. art. XVIII, 2(11).
The Secretary of States rules further define the content of the required report.
Rule 11.1 states that if the person spending money on an electioneering communication
is a corporation, disclosure of contributors of $250 of more is limited to only those
contributors who specifically earmarked their contribution for electioneering
communications. Rule 11.2 requires contributions of $250 or more to be listed
individually. Rule 11.3 requires all spending of $1,000 or more to be listed individually
including the name, address, and method of communication. Rule 11.4 requires persons
5

The rule was adopted in response to Fed. Election Commn v. Wisconsin Right to Life, 551 U.S. 449
(2007), which involved an as-applied challenge to the federal law that criminalized electioneering
communications by corporations. In holding the law unconstitutional as applied to WRTL, Chief Justice
Roberts observed that WRTLs ads were not the functional equivalent of express advocacy because their
content was that of a genuine issue ad and lacked any indicia of express advocacy in that they did not
mention an election, candidacy, political party, or challenger; and did not take a position on a candidates
character, qualifications, or fitness for office. 551 U.S. at 470. The need for this limiting regulation is
doubtful in light of Citizens United v. Fed. Election Commn, 558 U.S. 310 (2010), wherein the Court rejected
Citizens Uniteds argument that disclosure laws could only apply to express advocacy or its functional
equivalent. 558 U.S. at 368-69. Nevertheless, the rule has not been amended.

making electioneering communications to maintain financial records for 180 days after
the general election. Finally, Rule 11.5 requires that the report identify the name of any
candidate who was unambiguously identified in the electioneering communication.6
Electioneering communication reports are to be filed in accordance with the
schedule set forth in FCPA 1-45-108(2). Art. XXVIII, 6(1). FCPA 1-45-108(2)(a)(I)
describes a number of reporting schedules that apply to a variety of entities in different
types of elections, and not just to electioneering communication reports. The only parts
of 108(2)(a)(I) that might apply under the circumstances of this case are subsections
(B) and (C), which require reports:
(B) On the first Monday in May and on each Monday every two weeks
thereafter before the primary election;
(C) On the first day of each month beginning the sixth full month before
the major election.
In addition to these reports, article XXVIII, 6(1) adds that, The last such report
shall be filed thirty days after the applicable election.
In this case, the stipulated facts prove only that Respondents made reportable
electioneering communications sometime within 30 days preceding the primary election
held June 24th. Because the dates of Respondents spending are not further defined, the
only report that the ALJ can definitively say either Respondent was obligated to file was
the report due on the first day of the month following the primary election, July 1, 2014
(per 1-45-108(2)(a)(I)(C)). Although, article XXVIII, 6(1) required a final report to be
filed thirty days after the primary election, there is no evidence that either Respondent
spent any money on electioneering communications that would not have been included
on the July 1st report.
The Colorado Law is Not Unconstitutional as Applied
There is no question that the ALJ lacks jurisdiction to rule upon Respondents facial
challenge to the constitutionality of Colorados electioneering communication law. The
parties have fully briefed this issue in the federal district court and the ALJ leaves it to the
courts to resolve that challenge.7
The parties agree, however, that the ALJ does have jurisdiction to rule upon
Respondents as-applied challenge.8 But, as-applied challenges to campaign finance
disclosure laws have generally been rejected. Courts acknowledge that the publics
interest in transparency and its ability to make informed choices generally outweighs the
intrusion that disclosure laws impose upon a speakers First Amendment freedom of
speech and association. For example, see McCutcheon v. Fed. Election Commn, 134
S.Ct. 1434, 1460 (2014) (disclosure requirements may burden speech, but they often
6

The content of Rule 11.5, at the time identified as Rule 9.3, was specifically upheld in Colo. Citizens for
Ethics in Govt v. Comm. for the American Dream, 187 P.3d 1207, 1217-19 (Colo.App. 2008).
7 The briefs of the parties and amici are included within the administrative record.
8 While an ALJ has no authority to determine whether laws are constitutional on their face, an ALJ may
evaluate whether or not an otherwise constitutional statute has been unconstitutionally applied. See Horrell
v. Dept. of Admin., 861 P.2d 1194, 1198 n.4 (Colo. 1993) (en banc).

represents a less restrictive alternative to flat bans on certain types or quantities of

speech); Citizens United v. Fed. Election Commn, 558 U.S. 310, 367 (2010) (disclosure
can be justified by a governmental interest in providing the electorate with information
about the sources of election-related spending); McConnell v. Fed. Election Commn,
540 U.S. 93, 201 (2003) (disclosure and disclaimer requirements may burden the ability
to speak but they do not prevent anyone from speaking); and Buckley v. Valeo, 424 U.S.
1, 64 (1976) (unlike limitations on contributions and expenditures, the disclosure
requirements impose no ceiling on campaign-related activities.)
Situations in which disclosure laws might be found unconstitutional as applied
involve facts showing that the burden upon the speaker imposed by the disclosure
requirements is great, or that the publics interest in transparency is small. For example,
in Citizens United v. Fed. Election Commn, the Court acknowledged that a requirement
to disclose electioneering communications might give rise to an as-applied challenge if
the speaker could show a reasonable probability that disclosure of contributor names
would subject them to threats, harassment, or reprisals from either Government officials
or private parties. 558 U.S. at 370. In this case, however, Respondents have not alleged
and the evidence does not suggest that either CLLs or RMGOs contributors would face
threats, harassment or reprisals if their names are disclosed. Moreover, Respondents
have not shown that the required disclosures would in any way inhibit their donors from
contributing or would inhibit Respondents from speaking.
Respondents rely upon two recent federal court cases that found provisions of
Colorados disclosure laws to be unconstitutional as applied. In Sampson v. Buescher,
625 F.3d 1247 (10th Cir. 2010), the Tenth Circuit held that Colorados disclosure and
reporting laws could not be constitutionally applied to a small group of residents who
raised and spent $782 to oppose a local ballot issue regarding the annexation of their
neighborhood into an adjoining town. The court found that, under the circumstances,
There is virtually no proper governmental interest in imposing disclosure requirements
on ballot-initiative committees that raise and expend so little money, and that limited
interest cannot justify the burden that [the reporting requirements] impose on such a
committee. Id. at 1249. In so deciding, the court emphasized that, it is essential to keep
in mind that our concern is with ballot issues, not candidates. Id. at 1255. Candidate
elections are, by definition, ad hominem affairs. The voter must evaluate a human being,
deciding what the candidate's personal beliefs are and what influences are likely to be
brought to bear when he or she must decide on the advisability of future governmental
action. Id. at 1256. In contrast, when a ballot issue is before the voter, the choice is
whether to approve or disapprove of discrete governmental action . . . No human being
is being evaluated. Id. at 1256-57.
Unlike Sampson, the present case does involve a candidate election and
Respondents mailers were not limited to a discussion of the issues but were ad hominen
attacks on the character and beliefs of candidates in those elections. Voters have a vital
interest in knowing how much money is being spent and who is behind these mailers;
therefore, the rationale and holding of Sampson has no application to the present case.
Similarly, in the recent case of Coalition for Secular Govt v. Gessler, No. 12-cv1708-JLK-KLM, 2014 U.S. Dist. LEXIS 144389 (D.Colo. Oct. 10, 2014), Judge Kane
found that the reporting requirements applicable to issue committees could not be
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constitutionally applied to a small non-profit corporation that raised and spent no more
than $3,500 to oppose a personhood ballot issue because the public interest in knowing
how much CSG raised to oppose the ballot issue was outweighed by the burdens CSG
has suffered and will continue to suffer in trying to comply with issue committee reporting
requirements. Id. at 17. Again however, this case dealt with ballot issues, not
candidates, and therefore has no application to the case before the ALJ.
Furthermore, neither Sampson nor Coalition for Secular Government provide any
rationale for a successful as-applied challenge in this case because neither Respondent
has shown that the minimal reporting obligation involved under the circumstances of this
case presents an excessive burden.9
In contrast to Coalition for Secular Govt v. Gessler, the even more recent case of
Independence Institute v. Gessler, No. 14-cv-02425-RBJ, 2014 U.S. Dist. LEXIS 150272
(D.Colo. Oct, 22, 2014) upholds the electioneering communication reporting requirements
against an as-applied challenge. Independence Institute is a Colorado non-profit
corporation that wished to run television ads urging viewers to call Colorado Governor
Hickenlooper and ask him to support an audit of the Colorado Health Benefit Exchange.
Because the proposed ads unambiguously identified Governor Hickenlooper and were to
run within the 60 days prior to the general election in which Hickenlooper was a candidate,
they were electioneering communications within the meaning of article XXVIII, 2(7).
Independence Institute, however, argued that the electioneering communication reporting
requirement could not be constitutionally applied to it because its ads were genuine issue
advocacy as opposed to advocacy for or against any candidate, including Hickenlooper.
Relying upon Citizens United v. Fed. Election Commn and other federal precedent,
Judge Jackson rejected the argument, holding that in the context of electioneering
communications there was no distinction between issue speech and express advocacy.
Even 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. Id. at 15 (quoting
Citizens United, 558 U.S. at 369).
Even if the First Amendment did prevent electioneering communication reporting
laws from being applied to genuine issue advocacy, that bar would provide no relief to
Respondents in this case. As noted previously, their mailers went far beyond mere issue
advocacy and were the functional equivalent of express advocacy.

In challenging the facial constitutionality of Colorados law, Respondents rely heavily upon the Seventh
Circuit case of Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014), which held that portions
of Wisconsins reporting laws were an unjustifiable burden upon pre-election political speech. However,
Wisconsins PAC-like registration and reporting requirements are significantly less onerous than
Colorados minimal reporting requirement for electioneering communications.

Summary
The stipulated facts prove that Respondents made reportable electioneering
communications, but failed to file the required reports. Moreover, Respondents have
shown no facts to support an as-applied challenge to Colorados electioneering
communication reporting requirements. They have produced no evidence to show that
reporting would subject their contributors to threats or harassment; or that the reporting
requirements are in any way onerous or outweigh the public interest.
Sanction
If the ALJ finds that a respondent has violated reporting obligations imposed by
the fair campaign practice laws, the ALJ is authorized to issue any appropriate order,
sanction, or relief authorized by article XXVIII of the Colorado Constitution. Colo. Const.
art. XXVIII, 9(2)(a), FCPA 1-45-111.5(1.5)(b), C.R.S. Section 10(2) of article XXVIII
and FCPA 1-45-111.5(1.5)(c) authorize a penalty of $50 per day for each day that
required information is not filed by the close of business on the day due.
The only report which the evidence proves Respondents were required to file was
an electioneering communication report due July 1, 2014. Respondents have offered no
explanation for failing to file the required report, other than the argument that the law
requiring the report is unconstitutional.
One hundred sixty nine days elapsed from July 1, 2014 to the date of the
administrative hearing on December 17, 2014. At $50 per day, the penalty for failing to
file the required electioneering communication reports is $8,450 per respondent.
In addition to the civil penalty, Respondents must each file the required
electioneering communications report.
Agency Decision
Respondents failed to file the required report of their electioneering
communications. Within 30 days of the date of this decision, Respondents shall file the
required electioneering communication report and shall each pay a civil penalty of $8,450
to the Secretary of State, Campaign Finance.
This decision is subject to review by the Colorado Court of Appeals, pursuant to
24-4-106(11), C.R.S. and Colo. Const. art. XXVIII, 9(2)(a).
Done and Signed
December 23, 2014

________________________________
ROBERT N. SPENCER
Administrative Law Judge

CERTIFICATE OF SERVICE
I certify that I have served a true and correct copy of the above FINAL AGENCY
DECISION by depositing same in the U.S. Mail, postage prepaid, at Denver, Colorado,
to the parties at the following addresses:
Margaret Perl, Esq.
Luis Toro, Esq.
Colorado Ethics Watch
1630 Welton Street, Suite 415
Denver, CO 80202
James O. Bardwell, Esq.
501 Main St., Suite 200
Windsor, CO 80550
Laurin H. Hills, Esq.
David A. Warrington, Esq.
LeClair Ryan, PC
2318 Mill Road, Suite 1100
Alexandria, VA 22314
and to:
Suzanne Staiert
Deputy Secretary of State
1700 Broadway, Suite 270
Denver, CO 80290
this _____ day of December, 2014.
____________________________________
Office of Administrative Courts

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