DENVER – The conservative organization credited – or blamed — for bringing a flood of money into politics argued in federal court Tuesday that it should be allowed to produce and advertise an anti-John Hickenlooper film without disclosing who paid for it.
Attorneys for Citizens United argued that its political film, “Rocky Mountain Heist,” is a news product and that the organization itself should be considered a media outlet with the same protections as members of the press. They argued before Judge Brooke Jackson that the film, which criticizes the 2013 state legislative agenda and the Governor’s role in it, must be shown in the few weeks left before the Nov. 4 election.
The challenge to Colorado’s campaign disclosure law has made for an unusual alliance. The Colorado Democratic Party has intervened, adding their support to the state’s representation from Republican Secretary of State and Attorney General’s offices.
“This case is about disclosure,” said Deputy Secretary of State Suzanne Staiert. “We’re defending the right of people to know who’s paying for the influence.”
She noted that the original Citizen United case, which in 2010 led to the U.S. Supreme Court allowing unlimited campaign spending as long as it is not coordinated with a candidate, linked money to speech. “Citizen United One was about the right to speak.”
If Judge Jackson decides to side with Citizens United against the state he could grant a preliminary injunction, which would allow Citizens United to avoid disclosing its funding this election cycle while the broader case continues in federal court.
Judge Jackson’s decision about whether or not Citizens United has to disclose its spending in Colorado this election is expected to come down in the next few days. Staiert said that if Jackson allows Citizens United to go ahead with nondisclosure, the state will appeal that decision directly to the 10th Circuit Court of Appeals.
Citizens United lawyer Ted Olson, a former U.S. solicitor general who represented George Bush against Al Gore in the fight over who won the 2000 presidential election, argued that requiring funding disclosure would put an undue and unequal burden on Citizens United’s free speech.
“But nobody is suggesting that their ideas cannot be heard,” responded Judge Jackson. “They are asking: are the people who hear the ideas entitled to know where they’re coming from?
Colorado state law requires finance disclosure for “electioneering communications,” basically mass communications which mention and advocate for or against a candidate within two months of an election. Olson argued that because media organizations such as newspapers, talk radio and broadcast television don’t have to disclose their funders but still get to mention candidates — and even endorse them via their editorial pages — Citizens United shouldn’t have to disclose either.
Olson also emphasized that although this case is about Colorado state law, Citizens United did get a 2010 advisory opinion from the Federal Elections Commission granting them a press exemption at the national level.
“You must decide if the government can put its thumb on the scale and make it slightly easier or slightly more difficult to communicate certain ideas in this country,” said Olson, arguing that the state’s disclosure law unfairly singles out “tough speakers” like Citizens United and documentarian Michael Moore.
The state argued that Colorado law makes a meaningful distinction between journalistic entities and their regular coverage of elections and political advocacy groups that produce one-time communications intended to sway voters.
The state brought experts such as Seth Masket, a political scientist and University of Denver professor, who attested to the good government principles behind disclosing the funding sources of electioneering communications. He said disclosure increases voters’ sense that their government is working for them.
The Secretary of State’s office also brought in Jason M. Shepard, a media law professor from California State Fullerton, who noted that regulators such as the FEC often use a two-part measure to decide if an organization qualifies for a press exemption from financial disclosure.
First they ask if the organization is a press entity — something Shepard noted can be written into law, as it is with labels such as “broadcaster” in Colorado, or defined in terms of consistent reporting and even a balance of perspectives and ideas. The second evaluation asks if the election-era communication is happening within the media outlet’s regular press function. Here Shepard noted that if an outlet such as the Denver Post were to make the same movie as Citizens United and air advertisements for it before an election, he thought they’d probably have to disclose who funded the film as well since the scale of advocacy and promotion in the work would not sufficiently resemble their normal press activity.
Citizens United indicated that like the state they’ll appeal Judge Jackson’s decision if it’s not in their favor, meaning this case will almost certainly go to the 10th Circuit and increasing its chances of heading all the way to the U.S. Supreme Court, which is still accepting cases for this year.
Peg Perl at Colorado Ethics Watch, a transparency nonprofit that is following the case with interest, said that if this Citizens United 2.0 case makes it all the way to the U.S. Supreme Court, it could have major implications on the role of the free press nationwide.
Staiert agreed that the most interesting part of this case is the question of whether or not the constitutional privileges afforded the press should be expanded to cover groups like Citizens United, and if they were, how public discourse might be affected.
“I don’t think Citizens United qualifies as a media entity,” said Staiert. “It’s this notion that people have a right to know who’s influencing them. I think that that’s the most important part of the argument we made today — that distinction between the press and pure advocacy groups.”
[Image by Light Brigading]