Olson v. Golden, Colorado, City of, The et al
Filing
93
ORDER GRANTING JUDGMENT TO DEFENDANT by Judge Marcia S. Krieger on 9/1/11. (msksec, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 07-cv-01851-MSK-KMT
MARIAN L. OLSON d/b/a BANNACK PUBLISHING CO.,
Plaintiff,
v.
THE CITY OF GOLDEN, COLORADO, a Colorado Home Rule Municipal Corporation,
Defendant.
_____________________________________________________________________________
ORDER GRANTING JUDGMENT TO DEFENDANT
THIS MATTER comes before the Court on a stipulated factual record (#69), the parties’
submissions of opening (#70, 71) and response briefs (#72, 73), Defendant City of Golden’s
(“Golden”) Supplemental Brief (#82), Ms. Olson’s Response thereto (#91) and Errata (#92), and
the parties’ supplemental authority (# 74, 78, 79). Having considered the same, the Court
FINDS and CONCLUDES the following.
I.
Jurisdiction
The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331.
II.
Issues Presented
Ms. Olsen asserts both facial and as-applied challenges to the constitutionality of the City
of Golden’s campaign finance ordinance.1 She argues that the ordinance is facially vague and
1
A facial challenge tests a law’s application to all conceivable parties, while an asapplied challenge tests the application in regard to only the specific facts of a plaintiff’s case.
See Colo. Right to Life Comm., Inc. v. Coffman, 498 F.3d 1137, 1146 (10th Cir. 2007).
1
overbroad and that it unduly burdens freedom of speech and the press. She also contends that it
is unconstitutional as it has been applied to her because it abridges her right to freedom of speech
and the press.2
III.
Material Facts
Having reviewed the stipulated record, the Court finds the material facts to be as follows.
A.
Golden Municipal Code
This controversy concerns certain provisions of the City of Golden’s (the “City” or
“Golden”) municipal code (the “Code”) that establish campaign finance and reporting
requirements. The Code states that the provisions are in place to, in part, combat the potential
for undue influence or the appearance of undue influence which is often associated with large
campaign contributions. See § 1.05.000. The provision at issue in this case is section
1.05.060(a), as it existed in 2005 when applied to Ms. Olson (the “2005 Ordinance”), which
provides:
Any person making non-committee expenditures totaling more than $50.00 shall
deliver notice in writing of such expenditures to the City Clerk not later than three
business days after the day that such funds are expended or services or materials
provided. . . .
In the definition section, 1.05.010, a “non-committee expenditure” is defined as “an
2
The parties delineated these claims in their Proposed Final Pretrial Order (#66). The
Court limited the parties to these claims at the Final Pretrial Conference (#68). Despite this
limitation, Ms. Olson’s opening brief also addresses the constitutionality of the attorney fee
provision of Golden’s municipal code. However, because such a challenge was not included in
the Proposed Final Pretrial Order, the Court declines to address it. Wilson v. Muckala, 303 F.3d
1207, 1215 (10th Cir. 2002) (claims, issues, defenses, or theories of damages not included in the
pretrial order are waived even if they appeared in the complaint).
2
expenditure by any person other than a candidate, political committee, or issue committee that is
not controlled by or coordinated with any candidate or agent of such candidate or candidate’s
committee.” A “person” is defined as “any individual, partnership, committee, association,
corporation, labor organization or other organization or group of persons.” At the time this
action was filed, the term “expenditure” was defined as “the payment, distribution, loan or
advance of any money for goods or services related to the support or opposition of any
candidate, ballot issue, ballot question or issue.”
However, effective October 2010, the Code was revised (the “Amended Ordinance”) to
include the following definition of “expenditure:”
Expenditure shall mean the payment, distribution, loan, gift or advance of any money
for goods or services by any person or organization for the purpose of expressly
advocating the election or defeat of any candidate, ballot issue, ballot question or
issue. . . .
(1) If any portion of goods or services obtained or purchased by a person are
used in any manner by any person or organization for the purpose of
expressly advocating for the election or defeat of any candidate, ballot issue,
ballot question or issue, the pro rata value of such portion of goods or
services shall constitute an expenditure.
(2) “Expenditure” shall not include any cost incurred in covering or carrying
any news story, editorial endorsements, opinion or commentary writings, or
letters to the editor by any broadcasting station (including a cable television
operator, programmer or producer), newspaper, magazine, or other periodical
publication, including any Internet or electronic publication, that is viewable
by the general public and is primarily devoted to the dissemination of news
and editorials to the general public, and is not owned or controlled by a
candidate, candidate’s committee, political committee or issue committee.
Under the Code, the City Clerk “shall impose a civil penalty of fifty (50) dollars per day
upon the person responsible for filing reports for each day that a report required to be filed by
this chapter is not filed by the close of business on the day due.” See § 1.05.090. Additionally,
3
the Code provides that the Campaign Election Board is empowered to hear any complaint
brought by a resident of the City or City employee assigned to campaign finance regulation. See
§ 1.05.120(c). The Campaign Election Board is required to meet with the alleged violator, and,
if necessary, attempt to resolve the matter by written agreement. If the Board concludes that
there has been a violation, but is unable to work out a voluntary agreement, it must request the
City Attorney (subject to approval by City Council) to appoint a special prosecutor. The special
prosecutor reviews the matter and, if probable cause exists, may proceed with prosecution in
municipal court. See § 1.05.120(d).
B.
Ms. Olson
Ms. Olson, through her company Bannack Publishing Company, publishes The Voice of
Golden (“The Voice”).3 According to Ms. Olson, The Voice presents views that don’t appear in
the local newspaper and is designed to “get people to pay attention to what’s going on and get
involved.” Ms. Olson finances the publication and makes all content decisions. The Voice is
distributed through bulk mail to approximately 7,300 households in the City of Golden free of
charge.
The October 2005 issue of The Voice included, inter alia, (i) short articles about city
council decisions, including background information and commentary; (ii) letters to the editor one by a candidate for city council, three by candidates for the school board, and a fourth
endorsing candidates for the school board election; (iii) a categorization of the city council
3
It appears that Bannack Publishing Company is simply an alter ego of Ms. Olson under
which she publishes The Voice. With respect to this action, the City pursued enforcement of the
2005 Ordinance against Ms. Olson personally rather than against Bannack Publishing Company.
Accordingly, the Court concludes, from the evidence before it, that Ms. Olson has standing to
challenge the law.
4
candidates as either being “committed to putting citizens first” or who have “demonstrated a
willingness to go along with those who have a connection to special interests;” (iv) a
commentary on various ballot issues; and (v) a paid advertisement against a ballot issue.
David Ketchum, a city council member at the time, filed a complaint with the City Clerk
contending that The Voice included subject matter that required a reporting of costs in
accordance with the 2005 Ordinance. By letter dated November 9, 2005, the City Clerk notified
Ms. Olson that a complaint had been filed against her regarding her failure to report expenditures
under the 2005 Ordinance.
The following day Ms. Olson submitted an expenditure report in accordance with the
2005 Ordinance for both the October 2005 and the September 2005 issues. Ms. Olson also sent a
letter to the City Manager questioning the validity of the complaint against her. The City
Manager responded by letter stating that the matter was being referred to the Campaign Election
Board (the “Board”) and that a meeting had been scheduled for November 16, 2005 to address
the allegations in the complaint. Ms. Olson subsequently withdrew her expenditure report,
stating that the material in The Voice was properly characterized as an in-kind contribution
rather than a non-committee expenditure. Therefore, Ms. Olson simply reported the value of the
contribution to each candidate.
The complaint was forwarded to the Board, which convened a meeting on November 16,
2005. Ms. Olson did not appear. The Board continued the meeting to November 21, 2005 and
notified Ms. Olson of the new hearing date. Ms. Olson again failed to appear. This time,
however, the Board proceeded with the hearing and received additional evidence. A few days
later the Board issued their ruling. It concluded that the October 2005 issue of The Voice
5
contained information constituting an expenditure, in particular stating that the issue contained
“information in support of select city council members and in opposition to the two local ballot
issues.” Based on Ms. Olson’s representation that she charges $50 per page for advertisements,
the Board concluded that the portions of the issue that constituted an expenditure were in excess
of $50 and, therefore, Ms. Olson was required under the 2005 Ordinance to report the
expenditure. The Board recommended that the city attorney appoint a special prosecutor to
determine whether to pursue legal proceedings against Ms. Olson.
In March 2006, the special prosecutor filed suit in municipal court against Ms. Olson for
violation of the 2005 Ordinance. The suit sought a judgment declaring that Ms. Olson was in
violation of the 2005 Ordinance, an order requiring Ms. Olson to abate violation of the 2005
Ordinance, and an award of costs, attorney fees, and interest associated with prosecuting the
violation. The case, however, was ultimately dismissed upon agreement between the parties. As
part of that agreement, Ms. Olson reported the expenditures for the entire October 2005 issue of
The Voice. No further reporting was expressly agreed upon or required. The City withdrew its
claim to collect attorney fees and costs associated with the action. No fines were levied against
Ms. Olson either under the agreement or by the City Clerk.
After the October 2005 issue, Ms. Olson published issues in February 2006, May 2007,
June 2007, July 2007, August 2007, September 2007 (2 separate issues), October 2007 (3
separate issues), November 2007, December 2007, January 2008, February 2008, March 2008,
July 2008, September 2008, November/December 2008. Ms. Olson voluntarily reported the
expenditures for the entirety of each issue published between August 2007 and November 2007.
6
IV. Standard of Review
Fed. R. Civ. P. 56(c) provides for the entry of summary judgment if the parties’
evidentiary materials “show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Because the parties have stipulated as
to all of the material facts, the Court applies the law to the stipulated facts.
V.
A.
Analysis
Constitutional Limitations on Campaign Finance Disclosure Laws
Although recognizing that campaign finance regulation may burden speech and other
First Amendment rights, the Supreme Court has held that states or municipalities may
constitutionally require reporting of expenditures by non-campaign persons or entities on express
advocacy or its functional equivalent. See Buckley v. Valeo, 424 U.S. 1, 14 (1976); McConnell
v. Fed. Election Comm’n, 540 U.S. 93, 136–37 (2003); see also McIntyre v. Ohio Elections
Comm’n, 514 U.S. 334, 347 (1995) (determining that Buckley’s reasoning applies to issue
advocacy as well as candidate advocacy). “Express advocacy” is a term of art that has been used
in Tenth Circuit and United States Supreme Court case law to mean speech that contains express
terms advocating the election or defeat of a candidate (e.g., “vote for,” “defeat,” “reject,” etc.),
or its functional equivalent. Citizens for Responsible Gov’t State PAC v. Davidson, 236 F.3d
1174, 1187 (10th Cir. 2000) (citations omitted).
Such reporting requirements generally must pass strict scrutiny, that is, they must bear a
significant relationship to a substantial government interest.4 Buckley, 424 U.S. at 80-81.
4
The exact standard of review relevant to campaign finance regulations that burden First
Amendment freedoms is somewhat unclear. In the context of campaign finance, the Supreme
Court has used multiple phrases to described the standard to apply. See Buckley v. Valeo, 424
7
However, regulation of express advocacy, including disclosure requirements, can generally be
justified by governmental interests in ensuring fair elections and other important policy
concerns. Davidson, 236 F.3d at 1197 (identifying three compelling governmental interests in
requiring disclosure of expenditures: (1) providing the electorate with information as to where
political campaign money comes from and how it is spent; (2) deterring actual corruption and the
appearance of corruption by exposing large contributions and expenditures “to the light of
publicity;” and (3) assisting in gathering data necessary to detect violations) (citations omitted).
Campaign finance laws are of course also subject to review under other generally applicable
constitutional principles such as vagueness and overbreadth.
B.
Facial Challenges
In this case, Ms. Olson raises three separate, but related, facial challenges to the 2005
Ordinance: (i) the 2005 Ordinance is unconstitutionally vague; (ii) the 2005 Ordinance is
unconstitutionally overbroad; and (iii) the 2005 Ordinance does not survive the “exacting
U.S. , 44–45 ( ) (using “exacting scrutiny” in analyzing the constitutionality of the expenditure
limitation and explaining that the standard required a “relevant correlation” or “substantial
relation” between a “sufficiently important” governmental interest and the burden on First
Amendment freedoms); id. at 75 (suggesting that strict scrutiny was the proper standard when
analyzing disclosure requirements for individual expenditures); id. at 25 (using a “closely
drawn” standard to determine whether campaign contribution limits are constitutional); Fed.
Election Comm’n v. Wisc. Right to Life, Inc., 551 U.S. 449, 464 (2007) (hereinafter “WRTL”)
(applying strict scrutiny, i.e., whether the restriction “furthers a compelling interest and is
narrowly tailored to achieve that interest”); Citizens United v. Fed. Election Comm’n, 130 S.Ct.
876, 898 (2010) (applying strict scrutiny). Regardless of the exact standard of review, however,
it is clear that the standard is more rigorous than intermediate scrutiny and likely approaches, if
not equals, strict scrutiny. See Buckley, 424 U.S. at 25, 44–45, 75; McConnell, 540 U.S. at
136–37; WRTL, 551 U.S. at 464; Citizens United, 130 S.Ct. at 898.
8
scrutiny” that it must to burden First Amendment rights.5 Ms. Olson’s vagueness and
overbreadth arguments concern the phrase “related to the support or opposition of any candidate,
ballot issue, ballot question or issue” as it is used to define “expenditure.” She contends that this
phrase is facially vague because it does not provide sufficient clarity to reasonable persons as to
what actions are covered by the statute and allows arbitrary and discriminatory application. She
also argues that the phrase is overbroad because it includes many types of political speech that
cannot be constitutionally regulated, i.e., it regulates speech that is not express advocacy or its
functional equivalent.
Since the time that Ms. Olson brought this action, however, Golden amended the 2005
Ordinance. Because these amendments changed the very provisions Ms. Olson challenges,
Golden contends that her facial challenges are now moot. Ms. Olson disagrees, arguing that
because it is not “absolutely clear” that the amendments to the 2005 Ordinance, as reflected in
the Amended Ordinance resolve all of her challenges. Instead, the gravaman of her challenges
remain in dispute. Alternatively, Ms. Olson argues that even if her vagueness and overbreadth
challenges have become moot, her general challenge to the entire campaign finance regulation
remains viable.
The existence of a live case or controversy is a constitutional prerequisite to federal court
jurisdiction. See Davidson, 236 F.3d at 1181–82. Thus, before addressing the merits of a
5
Ms. Olson argues that the 2005 Ordinance’s failure to include an express exemption for
the press makes the 2005 Ordinance unconstitutionally overbroad. The Court, however,
understands this argument to be a direct facial attack on the constitutionality of the 2005
Ordinance based on its chilling effect or burdens on First Amendment freedoms. Indeed, the
argument is premised on the burden the 2005 Ordinance places on the freedom of the press, a
First Amendment freedom.
9
dispute, a court must determine whether it has been resolved. This requirement must be satisfied
at all stages of an action; in other words, it is not enough that there be a live controversy at the
time the litigation is initiated; instead, the controversy must exist at the time the court is called
upon to determine it. See City of Herriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010). A
controversy is considered moot when the issues presented have been resolved or the parties lack
a legally cognizable interest in the outcome. See City of Erie v. Pap’s A.M., 529 U.S. 277, 287
(2000). The critical question is whether a determination of the issues would have any actual
effect in the real world. See Davidson, 236 F.3d at 1181. If not, then any determination would
be advisory. As a consequence, a court then lacks jurisdiction in the matter. See City of Erie,
259 U.S. at 287.
In deciding whether an action has become moot based on the voluntary action or inaction
by the defendant, the question is whether events have “made it absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). The burden of making this
showing lies with the party asserting mootness, here the defendant.
Ordinarily, the repeal of a challenged statute is sufficient to demonstrate that its allegedly
unconstitutional effect would not reasonably be expected to recur. See Davidson, 236 F.3d at
1182. Indeed, the Tenth Circuit has long since observed that issuance of a declaratory judgment
as to the constitutionality of repealed statute is the epitome of an advisory opinion. See id.
(citing Nat’l Adver. Co. v. City & County of Denver, 912 F.2d 405, 412 (10th Cir. 1990)).
However, when a statute is not repealed, but replaced by a new version, the question is a bit
more nuanced. In such event, a court examines whether the new statute is sufficiently similar
10
to the repealed statute such that the challenged conduct would continue. If the differences
between the new statute and old one are either so numerous or so fundamental that the
challenged conduct is not likely to continue, resolution of the controversy with regard to the old
statute is not warranted. See id. The approach taken with regard to statutes is equally applicable
to ordinances such as those at issue in this case.
Here, the changes to the 2005 Ordinance go to the heart of Ms. Olson’s original facial
challenges. The phrase that Ms. Olson claimed was vague and overbroad has been replaced with
more limited application to expenditures to that are “for the purpose of expressly advocating the
election or defeat of any candidate, ballot issue, ballot question or issue.” In other words, the
Ordinance has been amended to include exactly what Ms. Olson claimed was missing—a
limitation of the 2005 Ordinance’s reach to express advocacy or its functional equivalent. This
the change to the Ordinance cures Ms. Olson’s vagueness and overbreadth challenge. See Utah
Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1256 (10th Cir. 2004) (affirming
district court dismissal of an action as moot when the challenged statute had been amended to
cure the alleged defect).
Ms. Olson also contends that the 2005 Ordinance is facially unconstitutional because it
does not provide for an exemption for the press. She argues that without such exemption, the
2005 Ordinance is not narrowly tailored to the state’s interest in generating information and
creating transparency in the election process. The Amended Ordinance, however, includes an
explicit exclusion for the press.6 Again, the amendment has provided exactly what Ms. Olson
6
As described supra, the new definition provides:
(2) “Expenditure” shall not include any cost incurred in covering or carrying any
news story, editorial endorsements, opinion or commentary writings, or letters to
11
challenged—an exemption for the press.
Ms. Olson argues in her supplementary response brief (#91) that this challenge has not
become moot because the Amended Ordinance’s campaign finance regulation continues to
burden and chill First Amendment rights. She refers back to the Amended Complaint (#25) for
articulation of this claim. As observed earlier, however, the claims in this action have been
limited by the Final Pretrial Order. Neither it nor Ms. Olson’s briefing identifies or develops
such a challenge. She has focused only on the phrase in the 2005 Ordinance “related to the
support or opposition” and its absence of a press exemption. Ms. Olson also contends that her
facial challenge is not moot because activities such as hers might not fall within the press
exemption and that the reporting requirements cannot constitutionally be applied to speech such
as that expressed in The Voice. As discussed below in connection with Ms. Olson’s as-applied
challenge, neither the 2005 nor the Amended Ordinance unconstitutionally burden Ms. Olson’s
First Amendment rights, regardless of whether she falls within the newly adopted press
exemption.7
the editor by any broadcasting station (including a cable television operator,
programmer or producer), newspaper, magazine, or other periodical publication,
including any Internet or electronic publication, that is viewable by the general
public and is primarily devoted to the dissemination of news and editorials to the
general public, and is not owned or controlled by a candidate, candidate’s
committee, political committee or issue committee.
7
Ms. Olson also relies on Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010) to argue
that the reporting requirements are facially overbroad because they require disclosure of
expenditures relating to ballot issues, not just candidates. Sampson concerned Colorado state
regulation of “issue committees” and involved registration and other disclosure requirements that
are far more extensive than those at issue here. The court in Sampson examined the interests
supporting the regulation and determined that they were not sufficiently compelling as applied to
the plaintiffs given the burden imposed. In its analysis, the court noted that the several interests
applicable to disclosing expenditures on behalf of candidates, such as exposing potential quid
12
In summary, the Court finds that the amendments to the 2005 Ordinance are so
fundamental to Ms. Olson’s facial challenges, that there is no reasonable expectation that the
alleged constitutional infringement will recur. Thus, such challenges to the 2005 Ordinance
have become moot. 8
C.
As-Applied Challenge
Ms. Olson also argues that the 2005 Ordinance was unconstitutionally applied to her with
pro quo arrangements, do not apply with the same force to issue advocacy. However, given the
significant differences between the regulatory schemes at issue and the fact that Sampson
resolved an as-applied challenge, I do not read Sampson as prohibiting any regulation of ballot
issue advocacy. In addition, this is a new argument raised for the first time in a supplementary
response brief on the issue of mootness. Ms. Olson has never sought to amend the Proposed
Final Pretrial Order or trial brief to make this argument or assert this as a basis for her
overbreadth challenge.
8
Ordinarily, at this juncture, a court would consider whether exceptions to the mootness
doctrine would apply. Exceptions apply when: (i) secondary or collateral injuries survive after
resolution of the primary injury; (ii) the issue is deemed a wrong capable of repetition yet
evading review; (iii) the defendant voluntary ceases an allegedly illegal practice but is free to
resume it at any time; and (iv) a property certified class action suit. See Riley v. INS, 310 F.3d
1253, 1257 (10th Cir. 2002). However, neither party has suggested that any exception is
applicable.
On independent review , the Court finds no exception to the mootness doctrine to be
applicable. The first and fourth exceptions do not apply because Ms. Olson has not articulated
any secondary or collateral injuries and this is not a class action. The third exception, voluntary
cessation with opportunity to resume, is not applicable because Golden cannot resume
enforcement of the 2005 Ordinance now that it has been amended.
The second exception, a wrong capable of repetition yet evading review, is inapplicable
where the challenged law has been amended. See Utah Animal Rights Coalition, 371 F.3d at
1257. Ms. Olson makes a conclusory statement in her supplement that the unconstitutional
infirmities in the 2005 Ordinance are capable of repetition yet evading review, but her point
appears to be that it would be more efficient to decide the controversy now rather than to see if
she is subject to future enforcement under the Amended Ordinance. This concern speaks to
application of the Amended Ordinance to Ms. Olson, which is wholly different from her current
facial challenges and is speculative at this point.
13
respect to the October 2005 issue of The Voice.9
1.
Express Advocacy
A threshold issue is whether the October 2005 issue contained the type of speech that
may be regulated consistent with the First Amendment. Ms. Olson agrees that all that may be
constitutionally regulated under Buckley is express advocacy or its functional equivalent.10 She
contends that the 2005 Ordinance was unconstitutionally applied to her because the October
2005 issue of the Voice did not include express advocacy or its functional equivalent.
As explained in Buckley, express campaign advocacy is communication that advocates
for the election or defeat of a candidate (or issue) using magic language such as “vote for”,
“elect”, defeat,” etc. See Buckley, 424 U.S. at 44. Express advocacy is easy to spot as it is
“express” and utilizes language clearly stating its purpose. However, because advocacy may
occur without including such “magic words”, the “functional equivalent” of express campaign
advocacy can be similarly regulated.
The functional equivalent of express campaign advocacy, however, is more difficult to
identify. In grappling with whether an advertisement contained the functional equivalent of
express advocacy, the Supreme Court provided some guidance - an advertisement is the
9
Although Ms. Olson voluntarily reported the cost of the issues of The Voice from
August 2007 to November 2007, she brings an as-applied challenge only with respect to the
October 2005 issue. This is indeed the only issue for which any enforcement action was ever
taken against Ms. Olson and the only issue for which there is any indication that the City
believes is subject to the campaign finance regulation.
10
There is some suggestion in Ms. Olson’s briefing that she also contends that the 2005
Ordinance was unconstitutionally applied to her because the October 2005 issue was not
comprised solely of express advocacy or its functional equivalent. However, there is nothing in
the record indicating that Golden’s enforcement of the 2005 Ordinance was based on its
determination that the entirety was subject to the 2005 Ordinance.
14
functional equivalent of express advocacy “only if the ad is susceptible of no reasonable
interpretation other than as an appeal to vote for or against a specific candidate.”11 See WRTL,
551 U.S. at 469–70.
11
The Court notes that the Fourth Circuit has interpreted WRTL to require satisfaction of
a two-part test in order for a communication to be the functional equivalent of express campaign
advocacy : (i) it must fall within the definition of an electioneering communication under the
Bipartisan Campaign Reform Act of 2002 ( for example be a broadcast, cable or satellite
communication referring to a clearly identified candidate made within 60 days of a specified
election) ; and (ii) it must be susceptible to no reasonable interpretation other than as an appeal
to vote for or against a specific candidate. See N.C. Right to Life, Inc. v. Leake, 525 F.3d 274,
282 (4th Cir. 2008). It appears that this interpretation of WRTL comes from a footnote in the
majority opinion addressing the dissent’s position that the test was too indefinite and vague. The
majority explained the ways in which the test was aimed at a precise result and stated “[a]nd
keep in mind this test is only triggered if the speech meets the brightline requirements” of being
an electioneering communication in the first place.
In the context of WRTL the reference to the definition of an electioneering
communication under BCRA is obvious because BCRA was the regulation at issue. But this
Court does not read WRTL as limiting the scope of functionally equivalent speech for
constitutional analysis to require that the communication fall within the definition of an
electioneering communication as defined by BCRA - in essence, a broadcast, cable or satellite
communication referring to a clearly identified candidate within 60 days of a specified election.
To do so would conflate the constitutional analysis of WRTL with the terms of statute it
considered, and preclude a wide variety of communications through different media from falling
within the scope of the functional equivalent of express advocacy.
Although courts should be cautious in considering regulation of functionally equivalent
expressive speech, the purpose of the caution is not a function of the media used for the
communication, but instead to the impact that regulation has upon First Amendment expression.
The rationale for permitting regulation of functional equivalent expression - that of providing
transparency and providing information pertinent to the election process - is as applicable to
print or internet advertisements as to radio and video broadcasts. Indeed, in McConnell v. Fed.
Election Comm’n, 540 U.S. 93, 136–37 (2003), the Supreme Court recognized that the BCRA
definition of “electioneering communication” was underinclusive because it did not include print
media or internet communications. Although the Court did not address whether regulation of
communications not expressly covered by BCRA would be constitutionally permissible (as the
issue was not before the Court), its recognition that the statutory definition of “electioneering
communications” was underinclusive implies that functional equivalent expression may occur
through other media or in other venues. Unlike the 4th Circuit, this Court reads WRTL as
focusing on BCRA and not as a limiting functionally equivalent expressive speech to that
defined as an electioneering communication by BCRA.
15
The October 2005 issue of The Voice includes two instances of express advocacy. On
page 10 (Record 1258) is the Guest Editorial by Don Parker. Its last sentence reads “To help
Keep Golden Golden, please vote No on Question 201.” In addition, Page 11 (Record 1259)
states “Vote NO on Question 201,” “Vote NO on 201 The Subsidy Issue,” and “When you
receive your ballot, please open it up and vote NO on the ‘limited exception’ Question 201.”
Ms. Olson claimed this page was paid advertisement that constituted an in-kind contribution.
Both of these pages include the magic language of express advocacy, i.e., “vote,” and, therefore,
subject the issue to the disclosure requirements.12
The October 2005 issue also includes the functional equivalent of express advocacy.
Page 5 (Record 1253) has two large headings, one entitled “How do you decide who to vote
for?” and the other “How do you decide how to vote on 200 and 201?” Under the first heading,
the publication lists the candidates for city council who “put citizens first” as opposed to those
who have demonstrated a willingness to go along with special interests. The bottom portion of
the page addresses two ballot measures, stating that the measures are worded to “fool the
voters,” would repeal an amendment adopted by the citizens a few years ago, and are examples
of the special interests influence on the city council. Although the page states that the decision
of how and for whom to vote is up to the reader, the article is clearly designed to advocate for
the election of the candidates who put citizens first and the defeat of the ballot measures that are
12
The Court is aware that the fact that some of the use of the magic language was
through a paid advertisement could arguably raise some issues as to whether the printing of that
page was really an expenditure to Ms. Olson, i.e., did she pay, distribute, loan or advance any
money in support of this express advocacy. The Court, however, need not address such issues as
there are other portions of the October 2005 issue that constitute express advocacy or its
functional equivalent.
16
backed by special interests. For example, as to the candidates, the page states, “[i]f you want the
special interests to continue to control Golden, that is the way to vote” but “[i]f you believe it is
time for a change and the city council should represent you and put citizens’ interests first, that is
the way to vote.” The options are presented as so starkly desirable or undesirable that the page is
not subject to any reasonable interpretation other than advocacy for the specified candidates.
This page, therefore, constitutes the functional equivalent of express advocacy under WRTL.
Because the October 2005 issue contained speech that could be constitutionally regulated, Ms
Olson’s challenge on these grounds fail.
2.
Press Exemption
Having determined that the October 2005 issue of The Voice contained the type of
speech that can be subjected to regulation, the question arises whether application of the 2005
Ordinance was nonetheless unconstitutional because it contained no express exemption for
media or press activities.
As noted above, the general framework for determining whether a campaign finance law
unconstitutionally burdens speech is set forth in Buckley and its progeny. With regard to this
question Golden has the burden to demonstrate by a preponderance of the evidence that its 2005
Ordinance survives strict or exacting scrutiny, i.e., that it is substantially related to a compelling
interest and is narrowly tailored to that interest. WTRL, 551 U.S. at 464; Association of
Community Organizations for Reform Now, (ACORN), v. Municipality of Golden, 744 F.2d 739,
746 (10th Cir. 1984) (although duly enacted laws are generally presumed constitutional, when a
law infringes on the exercise of First Amendment rights, its proponent bears the burden of
establishing its constitutionality).
17
For the purposes of this analysis, the Court considers the provisions of the 2005
Ordinance (before the amendments). There is no question that complying with disclosure and
registration requirements imposes a burden on core political speech. Buckley, 424 U.S. at 39.
Golden maintains that infringement by requiring reporting of expenditures for the October 2005
issue of The Voice was nonetheless justified, and survives constitutional scrutiny, because the
2005 Ordinance serves the purposes identified in Buckley of providing information about where
political campaign money comes from, deterring corruption, and gathering data to assist in
enforcement. According to the evidence presented, the disclosure requirements of the 2005
Ordinance that are at issue were enacted for the purposes of preventing corruption in local
elections, keeping voters informed as to the sources of political contributions, and preventing
wealth concentrations from swaying local elections. Golden argues that the disclosure
requirements were the least restrictive means of achieving that purpose.
These arguments are in line with existing case law, which generally holds that disclosure
of expenditures on express advocacy or its functional equivalent, both with respect to candidates
and issues, can be constitutionally required because such requirements survive exacting (or
strict) scrutiny. See Buckley, 424 U.S. at 77–78; McConnell v. Fed. Election Comm’n, 540 U.S.
93, 136–37 (2003); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995) (“The
principles enunciated in Buckley extend equally to issue-based elections. . . .”); Cal. Pro-Life
Council, Inc. v. Getman, 328 F.3d 1088, 1103 n.18, 1104 (9th Cir. 2003) (“[W]e think there can
be no doubt that states may regulate express ballot-measure advocacy through disclosure laws.”);
Nat’l Right to Work Legal Defense and Educ. Found., Inc. v. Herbert, 581 F.Supp.2d 1145 (D.
18
Utah 2008).13 Indeed, such regulations pass exacting or strict scrutiny as they bear a significant
relationship to a substantial government interest, i.e., to generate information and transparency in
the election process. See Buckley, 424 U.S. at 14; McConnell Fed. Election Comm’n, 540 U.S.
93, 136–37 (2003); see also McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995).
They have also been held to be the least restrictive means of achieving those ends. See Buckley,
424 U.S. at 68.
Given the legal authority discussed above, the Court finds that Golden has carried its
burden in showing that the disclosure requirements of the 2005 Ordinance served a compelling
purpose in providing information to the public about the source of non-campaign funds expended
on behalf of a candidate or issue and deterring corruption or the appearance of corruption. In
addition, Golden has shown that the 2005 Ordinance was narrowly tailored to that purpose. The
disclosure requirements were not onerous, involving only the reporting of expenditures over $50.
The report required identifying and contact information about the person making such
expenditure, the candidate or issue that the expenditures were intended to support or oppose,
information about the vendors and a description of the expenditure, and the date and amount of
13
The Supreme Court’s decision in Citizens Against Rent Control/Coalition for Fair
Hous. v. Berkeley, 454 U.S. 290, 296–97 (1981), does not compel a conclusion that express
advocacy as to issues, as opposed to candidates, may not be constitutionally regulated. In
Berkeley, the Court noted that Buckley’s analysis of the governmental interest justifying
contribution limits, i.e., the avoidance of quid pro quo arrangements or the perception thereof,
applied only to contributions to candidates and not contributions to committees formed to favor
or oppose ballot measures. Berkeley did not address regulations of ballot measures or initiatives
in the form of disclosure requirements. The governmental interest justifying disclosure
requirements is not to avoid quid pro quo arrangements, but merely to provide information as to
expenditures that are unambiguously campaign related. Accordingly, Berkeley’s analysis of the
application of Buckley does not foreclose the application of Buckley to the disclosure of
expenditures for the passage or defeat of ballot measures.
19
the expenditure. This provided the information the public would need to understand who spent
money on behalf of a candidate or issue, how much, how, and what the effect of that expenditure
might be.
Plaintiff does not dispute the fundamental purposes for which the 2005 Ordinance was
enacted; rather, she contends that those interests are inapplicable to her activities or are trumped
by the interests and value of a free press in the political process. The Court understands Ms.
Olson’s argument to be that such legitimate interests are less compelling or the 2005 Ordinance
more burdensome when it was applied to her because she published a newsletter, which should
have entitled her to a “press” exemption.14 Ms. Olson does not appear to dispute that to the
extent an individual prints and distributes materials expressly advocating the election of a
particular candidate, there is a justified interest in the public disclosure of the individual’s
identity and how much he or she spent in helping the candidate get elected. However, Ms. Olson
characterizes herself as the “press”, and she contends that her activities are therefore entitled to a
heightened level of protection.
There is no doubt that the press has a unique and important role in American society,
especially in politics. See, e.g., Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 667
14
Ms. Olson alternatively characterizes her activities as “independent, individual”
political action, which she contends does not create concern about the effect of significant and
sizable contributions upon a campaign. Response Brief (#73) at 17. This argument misses the
point; the purpose of the statute is to identify sources of expenditures, large or small, on behalf
of a candidate or issue in order to provide the electorate with information about the effect of
money in the election. Unless such amounts are disclosed, the public cannot know whether the
amounts are insignificant or have the potential to influence the outcome of the election.
20
(1990), overruled in part by Citizens United, 130 S.Ct. 876 (2010).15 However, Ms. Olson has
presented no case law, and the Court has found none, holding that the First Amendment requires
that the press must be excluded from campaign funding disclosure requirements.16 Her
argument invites the Court to make a sweeping determination that the Constitution requires a
press exemption from all campaign finance disclosure laws followed by a finding that Ms.
Olson’s particular activities qualify for such an exemption.
The Court declines to make these determinations because neither are necessary to
resolution of her claims. In Federal Election Commission v. Massachusetts Citizens for Life,
Inc., 479 U.S. 238 (1986), the United States Supreme Court made clear that even when a press
exemption exists, such as in the Federal Election Campaign Act (“FECA”), the First Amendment
analysis of Buckley remains dispositive. Massachusetts Citizens for Life concerned the
15
In Austin, the Supreme Court determined that the Bipartisan Campaign Reform Act of
2002’s exclusion of media corporations from an expenditure restriction did not violate the equal
protection clause because the differentiation was supported by a compelling state interest—the
press’s unique societal role in informing and educating the public. Austin did not conclude that
media entities were immune from campaign disclosure requirements. Nor did it address whether
the governmental interest in requiring expenditure disclosures was applicable to the press. In
fact, Austin noted that the press is not necessarily entitled to any additional protection under the
First Amendment than an ordinary citizen. See id. at 668 (citing to First Nat’l Bank v. Bellotti,
435 U.S. 765, 782 (1978)). Thus, Austin’s determination that a law restricting campaign
expenditures could constitutionally differentiate based on status as the “press,” does not lead to
the conclusion that the Constitution requires the press be exempted from campaign finance
reporting requirements.
16
The most likely reason for the dearth of caselaw regarding whether the “media” or
“press” should be subject to reporting or disclosure requirements for any activities involving
express advocacy is that federal campaign law contains such an exemption, which the Amended
Ordinance in Golden tracks, as do many similar regulatory schemes modeled on the federal
statute. See 2 U.S.C.A. §§ 431(9)(B)(i) (excluding from the definition of “expenditure” the
following: “any news story, commentary, or editorial distributed through the facilities of any
broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities
are owned or controlled by any political party, political committee, or candidate”).
21
application of several provisions of the FECA to a publication that urged readers to vote “prolife” in an upcoming election. The opinion addressed several separate issues, including whether
the publication at issue (a one-time “Special Edition” voter guide) was an expenditure subject to
the FECA and, as a separate matter, whether it fell within the FECA’s exemption for news
media. The Court held that although the appellant’s regular newsletter might fall within FECA’s
the press/media exemption, the “Special Edition” did not, given the circumstances of its creation
and distribution. After determining that the appellant’s “Special Edition” was subject to
regulation under FECA, the opinion went on to examine whether, as a constitutional matter,
FECA could be applied to the appellant, i.e., whether the government’s interest in regulating the
appellant’s political speech was sufficiently compelling and narrowly tailored to justify the
significant burden on the appellant’s activities.
Massachusetts Citizens for Life establishes that Buckley remains the touchstone when
addressing regulations that affect campaign- or election-related speech in publications,
regardless of whether a press exemption applies. In the absence of a press exemption like that in
the FECA, a court simply applies the regulation to the publisher of a specific publication. This
requires the same analysis as used in Massachusetts Citizens for Life for the publication that fell
outside the press exemption and therefore was subject to the FECA regulation. Therefore, the
issue here is whether, under Buckley, the application of the 2005 Ordinance to the October 2005
issue of The Voice unduly burdened Ms. Olson’s speech. Whether Ms. Olson to characterizes
herself as “the independent press” is irrelevant. Press or not, she must show that, as applied to
her in the context of October 2005 issue of The Voice, the 2005 Ordinance does not satisfy the
Buckley test.
22
Viewing the application of the 2005 Ordinance to the October 2005 issue of The Voice
through the Buckley lens, Golden has come forward with a compelling justification for the
regulation. Ms. Olson is obligated to show either that 1) Golden’s interest in and means of
regulating disclosure differs with regard to publication of The Voice than it would to her as a
private citizen expressing her own views, or 2) that her ability to comment and editorialize on
political candidates and ballot issues in The Voice has been impaired by enforcement of the
regulation. The general contention that campaign regulation might affect the ability of the press,
as a general and abstract matter, “to comment and editorialize on political candidates and ballot
issues” (Resp. Br., #73, at 27), is not sufficient.17 Therefore, this challenge to the law as applied
to her also fails.
IT IS THEREFORE ORDERED that judgment shall enter in favor of Defendant City
of Golden, Colorado and against Plaintiff Olson on all of Ms. Olson’s claims.
Dated this 1st day of September, 2011.
BY THE COURT:
17
Ms. Olson relies heavily on language from the legislative history of the FECA
concerning the press exemption to argue that press/media entities cannot be regulated at all. The
statement she quotes is from the House of Representatives Report, which clarifies that in
enacting the FECA Congress did not intend to limit or burden “the unfettered right of the
newspapers, TV networks, and other media to cover and comment on political campaigns.” H.R.
Rep. No. 93-1239, p. 4 (1974). This phrase does not create a constitutional standard prohibiting
any and all regulation of news or media entities and, indeed, Supreme Court case law indicates
otherwise. Cohen v. Cowles Media Co., 501 U.S. 663, 668 (1991) (“generally applicable laws
do not offend the First Amendment simply because their enforcement against the press has
incidental effects on its ability to gather and report the news”).
23
Marcia S. Krieger
United States District Judge
24
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