US Supreme Court to Colorado think tank: Disclose your donors or don’t run these ads


The nation’s highest court on Monday upheld a lower court’s money-in-politics ruling in a case out of Colorado that requires groups to disclose who pays for ads that mention candidates during election season.

The decision is a setback for those hoping to chip away at certain disclosure requirements for paid political speech.

The case stems from 2014 when the Colorado-based libertarian Independence Institute sued the Federal Election Commission. The nonprofit think tank— its motto: Think Freedom— wanted to run radio ads supporting a federal law that would give judges more discretion in sentencing nonviolent offenders. That was all well and good, but at the end of the ad, a speaker would implore listeners to call Democratic U.S. Sens. Mark Udall and Michael Bennet.

At the time, Udall was up for re-election; Bennet was not. But the group also said it wanted to run similar ads when Bennet would be up for reelection in 2016. They are known as “issues ads,” which do not expressly advocate for or against a candidate.

Because of the looming election, and because the ad would air within 60 days of it in a place where voters paying attention to the race would likely hear it, the Federal Election Commission would have barred the Independence Institute from putting the ad on the airwaves without disclosing who paid for it. To avoid that disclosure, the group sued the FEC in federal court, saying the agency was infringing on its free speech rights.

A three-judge court in November ruled the group could not air its ads without disclosure.

“The advertisement mentions a Senate candidate by name,” the judges wrote. “It would air within the sixty days preceding a general election.” If the Institute wanted to run the ads, the judges said, then the group must disclose the names of those who paid at least $1,000 apiece to fund it.

Jon Caldara, who runs the Independence Institute, told The Colorado Independent that not once in three decades has the Independence Institute disclosed who funds the group. Some donors, for instance, might worry about retaliation if they are outed, he said.  

The outspoken think tank director said he saw the case as a good, clean test for the U.S. Supreme Court. So, with help from the Washington, D.C.-area Center for Competitive Politics— its motto: Campaign Freedom— up to the nation’s highest court the case went.

Caldara frames his argument like this: Why should his group have First Amendment rights that disappear after a certain date on a calendar? The ads would have been OK for Bennet who was not up for re-election, but because Udall was facing voters within 60 days, the ads were deemed what is called electioneering communication.

“It seems to me that if we have the right to say something on Monday then we have the right to say it on Tuesday,” Caldara said this week upon hearing the Supreme Court’s decision. “But apparently we do not.” And he says the court’s decision applies to any liberal-leaning group, too.

The High Court upheld the lower federal court ruling against the group Monday, without comment, essentially saying the lower court got it right.

“We are disappointed that the Supreme Court chose to forgo full consideration of this important appeal, and instead summarily affirmed the lower court,” said Center for Competitive Politics legal director Allen Dickerson in a statement. “We look forward to continuing our efforts to defend the right to free speech and association.”

Dickerson told The Independent he still believes there is tension between the court’s blessing of laws that regulate advocacy for or against candidates and its rulings in favor of “privacy of association” in other contexts. The radio ads were not attack ads against a candidate, he says, but rather a discussion about pending legislation that merely mentioned an officeholder who happened to be running for reelection.

Caldara said he believes if President Donald Trump’s nominee for the Supreme Court, Colorado judge Neil Gorsuch, were on the court the justices might have chosen to take up the case and hear more about it.

One Colorado attorney who practices political law and appeals, however, was not so surprised by the result.

“In two previous opinions, the Court upheld federal laws that require disclosure of money spent on political speech,” says Chris Jackson of the Sherman & Howard L.L.C. firm in Denver. “While the Supreme Court has looked skeptically on contribution limits, it has generally upheld disclosure rules. This order fits squarely within that framework. I think the Supreme Court was right as a matter of law and as a matter of policy.”

A provision of campaign finance law on which the case hinged, he says, “doesn’t prohibit anyone from speaking their mind; it’s a reasonable reporting requirement that helps to promote transparency in the political process.”

Photo by Alan Levine for Creative Commons on Flickr.