Independence Institute v. Gessler
Filing
32
ORDER denying 13 Motion for Preliminary Injunction; granting 21 Motion for Summary Judgment by Judge R. Brooke Jackson on 10/22/14.(jdyne, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 14-cv-02426-RBJ
INDEPENDENCE INSTITUTE, a Colorado nonprofit corporation,
Plaintiff,
v.
SCOTT GESSLER, in his official capacity as Colorado Secretary of State,
Defendant.
ORDER
This case concerns a television advertisement that the Independence Institute wishes to
broadcast before the upcoming gubernatorial election. The Institute stipulates that its ad is an
“electioneering communication” under Colorado law and, as such, the Institute must comply
with certain reporting and disclosure requirements. However, because the ad constitutes
“genuine issue advocacy” as opposed to advocacy for or against any candidate, the Institute
claims that application of these requirements would be unconstitutional. The Secretary of State,
who administers and enforces Colorado’s election laws, stipulates that the ad can be classified as
genuine issue advocacy but maintains that application of the reporting and disclosure
requirements is constitutional. I agree with the Secretary.
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FACTS
The advertisement. The Independence Institute is a Colorado nonprofit corporation
organized under Section 501(c)(3) of the Internal Revenue Code that conducts research and
educates the public on various aspects of public policy, including taxation, education policy,
healthcare, and environmental issues. It wishes to run a television advertisement prior to the
November 4, 2014 general election that will urge viewers to call Governor John Hickenlooper
and ask him to support an audit of Colorado’s Health Benefit Exchange. The 30-second ad,
which would be distributed over local broadcast television in Colorado, would read as follows:
Audio
Doctors recommend a regular check up to
ensure good health.
Yet thousands of Coloradoans lost their health
insurance due to the new federal law.
Many had to use the state’s government-run
health exchange to find new insurance.
Visual
Video of doctor and mother with child.
Headlines of lost insurance stories.
Denver Post headline “Colorado health
exchange staff propose $13M fee on all with
insurance.”
Now there’s talk of a new $13 million fee on
your insurance.
It’s time for a check up for Colorado’s health
care exchange.
Call Governor Hickenlooper and tell him to
support legislation to audit the state’s health
care exchange.
INDEPENDENCE INSTITUTE IS
RESPONSIBLE FOR THE CONTENT OF
THIS ADVERTISING.
Call Gov. Hickenlooper at (303) 866-2471.
Tell him to support an audit of the health care
exchange.
Paid for by The Independence Institute, Jon
Caldara, President.
303-279-6536.
www.independenceinstitute.org
Colorado law. In 2002 Colorado’s voters approved what has been incorporated as Article
XXVIII of the Constitution of the State of Colorado. Section 1, entitled “Purposes and findings,”
states:
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The people of the state of Colorado hereby find and declare that large campaign
contributions to political candidates create the potential for corruption and the
appearance of corruption; that large campaign contributions made to influence
election outcomes allow wealthy individuals, corporations, and special interest
groups to exercise a disproportionate level of influence over the political process;
that the rising costs of campaigning for political office prevent qualified citizens
from running for political office; that because of the use of early voting in
Colorado timely notice of independent expenditures is essential for informing the
electorate; that in recent years the advent of significant spending on electioneering
communications, as defined herein, has frustrated the purpose of existing
campaign finance requirements; that independent research has demonstrated that
the vast majority of televised electioneering communications goes beyond issue
discussion to express electoral advocacy; that political contributions from
corporate treasuries are not an indication of popular support for the corporation’s
political ideas and can unfairly influence the outcome of Colorado elections; and
that the interests of the public are best served by limiting campaign contributions,
establishing campaign spending limits, providing for full and timely disclosure of
campaign contributions, independent expenditures, and funding of electioneering
communications, and strong enforcement of campaign finance requirements.
Among other things, Amendment XXVIII and Colorado’s Fair Campaign Practices Act,
C.R.S. § 1-45-101 et seq. place certain restrictions on “electioneering communications.” An
electioneering communication is
any 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, mailed, 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); C.R.S. § 1-45-103(9).
The term “electioneering communication” does not include:
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(I) Any news articles, editorial endorsements, opinion or commentary writings, or letters
to the editor printed in a newspaper, magazine or other periodical not owned or controlled
by a candidate or political party;
(II) Any editorial endorsements or opinions aired by a broadcast facility not owned or
controlled by a candidate or political party;
(III) Any communication by persons made in the regular course and scope of their
business or any communication made by a membership organization solely to members
of such organization and their families;
(IV) Any communication that refers to any candidate only as part of the popular name of
a bill or statute.
Colo. Const. art. XXVIII, § 2(7)(b); C.R.S. § 1-45-103(9).
Here, both parties agree that the Institute’s proposed advertisement is an “electioneering
communication.” It unambiguously refers to a candidate, Gov. Hickenlooper, who is seeking reelection. It will be broadcasted within 60 days before the November 4, 2014 election. It will be
broadcast to a wide television audience including members of the electorate who will decide who
will be Colorado’s next governor. None of the four exemptions applies.
Because the Independence Institute acknowledges that it will spend more than $1,000 on
the ad, it must submit reports to the Colorado Secretary of State including its spending on the ad
and the name, address, occupation, and employer of any person who contributed more than $250
to fund it. Article XXVIII, §6(1). The Fair Campaign Practices Act governs the timing and
content of such reports. C.R.S. § 1-45-108. As of the date of this order it appears that there will
be two required reports, the first on October 27, 2014 and the second, after the election, on
December 4, 2014. See Secretary’s Brief [ECF No. 22] at 8.
Filing the reports is itself something of a burden on the Institute’s ability to broadcast the
ad. However, the bigger burden and the main reason for this case is the requirement to identify
donors. This would not be all donors to the Independence Institute. Rather, it would be donors
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who contribute $250 or more and whose contributions are specifically earmarked to support this
advertisement. Code of Colorado Regulations § 1505-6:11.1. The Institute contends that having
to identify any donors violates those individuals’ rights of association and privacy, and if that
requirement is sustained in this case, the ad will not be broadcast. 1
The Independence Institute filed this action for declaratory judgment and injunctive relief
on September 2, 2014 and shortly thereafter filed a motion for a preliminary injunction.
However, the parties have since jointly asked the Court to consider the motion as one for
summary judgment, allowing the Secretary to file a cross-motion for summary judgment and
allowing the parties to obtain a final judgment as to whether the Secretary will be permanently
enjoined from enforcing the foregoing reporting and disclosure requirements of Colorado law.
LEGAL STANDARD
“Summary judgment is appropriate ‘if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.’” Utah Lighthouse Ministry v.
Found. for Apologetic Info. & Research, 527 F.3d 1045, 1050 (10th Cir. 2008) (quoting Fed. R.
Civ. P. 56(c)). The parties stipulate, and the Court agrees, that there is no fact dispute that would
preclude the entry of summary judgment.
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Any person found to have violated the disclosure provisions of Section 6 of Amendment XXVIII is
liable for fifty dollars per day for each day the required information fails to be filed. Id. § 10(2)(a); see
also C.R.S. § 1-45-111.5(c). The fine is a moot point here, because the Institute has made it clear that it
will not broadcast the ad unless the reporting and disclosure requirements are determined to be
unconstitutional.
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ANALYSIS
To begin, and just to be clear, this case is not about preventing the Independence Institute
from speaking on the issues of the day. It is not about prohibiting the Institute from broadcasting
its advertisement. The Institute is free to broadcast its advertisement so long as it complies with
the reporting and disclosure requirements of Amendment XXVIII. Moreover, the Institute could
have broadcast the ad without any reporting or disclosure requirements more than 60 days before
the November 4, 2014 election. It can likewise broadcast the ad without any reporting or
disclosure requirements after the election. In fact, it could broadcast the advertisement today
without the reporting or disclosure requirements if it did not refer unambiguously to a candidate
presently running for office.
Rather, in the words of the Supreme Court, while “[d]isclaimer and disclosure
requirements may burden the ability to speak,” they “‘impose no ceiling on campaign-related
activities,’ and ‘do not prevent anyone from speaking.’” Citizens United v. Fed. Election
Comm’n, 558 U.S. 310, 366 (2010) (quoting Buckley v. Valeo, 424 U.S. 1, 65 (1976) and
McConnell v. Fed. Election Comm’n, 540 U.S. 93, 201 (2003)).
Thus, it has long been held that reporting and disclosure requirements are subject to a
different standard of scrutiny than restrictions on one’s ability to speak. Because “disclosure is a
less restrictive alternative to more comprehensive regulations of speech,” Citizens United, 558
U.S. at 369, the Supreme Court “has subjected these requirements to ‘exacting scrutiny,’ which
requires a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’
governmental interest,” id. at 366–67 (quoting Buckley, 424 U.S. at 64, 66).
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Buckley upheld the disclosure and reporting requirements of the Federal Election
Campaign Act of 1971 (“FECA”) against a constitutional challenge. In doing so it recognized
that disclosure requirements serve important governmental interests in (1) providing voters with
information useful in their evaluation of candidates; (2) deterring corruption and the appearance
of corruption; and (3) gathering data necessary to detect violations of contribution limitations.
424 U.S. at 66–67. Similar interests were reflected in the stated purposes of Amendment
XXVIII. The Amendment provides transparency to the voters by requiring that the identity of
the persons or organizations paying for the ad—i.e., those speaking—be disclosed.
In McConnell the Court upheld a facial challenge to the reporting and disclosure
requirements created by the Bipartisan Campaign Reform Act of 2002 (“BCRA”). These BCRA
provisions are substantially similar to the Colorado law at issue here. Under BCRA, individuals
and organizations are required to report the identities of those who engage in “electioneering
communications,” a term coined in the statute and defined to mean any broadcast, cable, or
satellite communication which
(I) refers to a clearly identified candidate for Federal office;
(II) is made within—
(aa) 60 days before a general, special, or runoff election for the office
sought by the candidate; or
(bb) 30 days before a primary or preference election, or a convention or
caucus of a political party that has authority to nominate a candidate, for
the office sought by the candidate; and
(III) in the case of a communication which refers to a candidate for an office other
than President or Vice President, is targeted to the relevant electorate.
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52 U.S.C. § 30104(f)(3)(A). A communication is considered “targeted to the relevant electorate”
if it could be received by 50,000 or more individuals in the district or State the candidate seeks to
represent. Id. § 30104(f)(3)(C).
The McConnell plaintiffs challenged the scope of the term “electioneering
communication” on the grounds that it did not differentiate between express advocacy and issue
advocacy, contending that they possessed “an inviolable First Amendment right to engage in the
latter category of speech.” 540 U.S. at 190. The plaintiffs maintained that “Congress cannot
constitutionally require disclosure of . . . ‘electioneering communications’ without making an
exception for those ‘communications’ that do not meet [the] definition of express advocacy” as
established in Buckley. Id. The Supreme Court disagreed. It explained that “[i]n narrowly
reading the FECA provisions in Buckley to avoid problems of vagueness and overbreadth, [the
Supreme Court] nowhere suggested that a statute that was neither vague nor overbroad would be
required to toe the same express advocacy line.” Id. at 192.
The Court did, however, acknowledge that “compelled disclosures may impose an
unconstitutional burden on the freedom to associate in support of a particular cause.” Id. at 198.
In such cases, the would-be speaker may bring an as-applied challenge and need only show “a
reasonable probability that the compelled disclosure of [an organization’s] contributors’ names
will subject them to threats, harassment, or reprisals from either Government officials or private
parties.” Id. (quoting Buckley, 424 U.S. at 74). Notably, the Independence Institute has
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stipulated that it does not contend in this case that its donors would be subject to threats,
harassment, or reprisals if their identities were disclosed. 2
Though the plaintiff frames its challenge as “as-applied,” its argument rests on the same
theory as the facial challenge rejected in McConnell. Counsel candidly acknowledges that its
argument applies not just to the proposed ad but to any genuine issue ad that meets the statutory
definition of an electioneering communication. But “[i]n general, a plaintiff cannot successfully
bring an as-applied challenge to a statutory provision based on the same factual and legal
arguments the Supreme Court expressly considered when rejecting a facial challenge to that
provision. Doing so is not so much an as-applied challenge as it is an argument for overruling a
precedent.” Republican Nat. Comm. v. Fed. Election Comm’n, 698 F. Supp. 2d 150, 157
(D.D.C. 2010) (three-judge court), aff’d, 130 S. Ct. 3544 (U.S. 2010).
The plaintiff attempts to distinguish this case by focusing on the ads at issue in
McConnell, explaining that BCRA was addressing a problem that arose out of Buckley, that the
use of “magic words” of express advocacy had not proven effective for identifying speech that is
“unambiguously campaign related.” According to the plaintiff, since its speech is
unambiguously not campaign related, the problems that BCRA addressed need not be considered
in this “as-applied” challenge. This reasoning undermines the plaintiff’s position, for it was
because of the inability to effectively distinguish between campaign-related speech and issue
2
The plaintiff maintains that its donors’ associational interests are at issue even if the donors are not
subject to threats, harassment, or reprisals. However, the Supreme Court already addressed this argument
in Buckley. The Buckley Court acknowledged the significant privacy interest in one’s associations and, in
doing so, bumped up the level of scrutiny under which to review disclosure requirements from rational
basis to exacting scrutiny. See 424 U.S. at 64–68. In effect, the associational interests of the
Independence Institute’s donors have already been accounted for. While the Supreme Court left the door
open to future as-applied challenges where donors face a probability of threats, harassment, or reprisal,
the donors’ more general interest in privacy is subsumed in the level of scrutiny upon which the Court
conducts its analysis.
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advocacy that BCRA enacted an objective definition of “electioneering communication.” The
McConnell Court held that this definition was facially constitutional in spite of claims that it
might capture non-campaign related speech. To be able to bring a so-called “as-applied”
challenge on this basis, a challenge that would inevitably reopen the floodgates to subjective
review of all arguably political speech made close in time to an election, is exactly the type of
problem that BCRA (and the McConnell Court) hoped to resolve. The plaintiff has made no true
distinction between the challenge in McConnell—that issue advocacy must be distinguished
from express advocacy—and its argument before this Court. As such, the plaintiff’s challenge
must fail for the same reasons the facial challenge failed in McConnell.
In any event, Citizens United did involve, among other things, an “as-applied” challenge
to the disclosure requirements of BCRA. Citizens United contended that those requirements
must be confined to speech that amounts to express advocacy for a political candidate or its
functional equivalent. The Court disagreed:
The Court has explained that disclosure is a less restrictive alternative to more
comprehensive regulations of speech. . . . [W]e reject Citizens United’s
contention that the disclosure requirements must be limited to speech that is the
functional equivalent of 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.
558 U.S. at 369 (internal citations omitted). In so holding, the Court referenced its decisions in a
number of cases, including McConnell, as well as United States v. Harriss, 347 U.S. 612 (1954),
a case in which the Court upheld registration and disclosure requirements for lobbyists. See id.
The plaintiff attempts to distinguish its claim from the one addressed in Citizens United.
It maintains that it is not arguing that disclosure requirements must be confined to speech that
amounts to express advocacy or its functional equivalent, but instead that such requirements
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cannot be applied to pure issue speech, a contention that it claims the Supreme Court has never
explicitly addressed. That is not entirely true. The Supreme Court did, for example, uphold
disclosure requirements in the context of lobbying, perhaps the epitome of issue speech. In
approving the Federal Regulation of Lobbying Act, the Court noted that the Act did not “prohibit
these pressures” but “merely provided for a modicum of information” from those who attempt to
influence legislation through lobbying. 347 U.S. at 625. I have also noted that the McConnell
Court held that the First Amendment does not “erect[] a rigid barrier between express and socalled issue advocacy,” 540 U.S. at 193, and that the Citizens United Court rejected an asapplied challenge brought on the grounds that the type of speech should determine the duty of
disclosure.
The plaintiff would like us to review its proposed advertisement and determine whether
Colorado voters have a sufficient interest in knowing who is speaking about Governor
Hickenlooper when the speech is said not to be “campaign-related.” However, the Supreme
Court has held that a sufficient interest exists with respect to speech that references a candidate
when made close in time to the election. There is no need for this Court to go any further with
respect to the government’s interest.
Moreover, every circuit court to have analyzed this issue since Citizens United has come
to the same conclusion, that the distinction between issue speech and express advocacy has no
place in the context of disclosure requirements. See Ctr. for Individual Freedom v. Madigan,
697 F.3d 464, 484 (7th Cir. 2012) (“Citizens United made clear that the wooden distinction
between express advocacy and issue discussion does not apply in the disclosure context.”); Nat’l
Org. for Marriage v. McKee, 649 F.3d 34, 54–55 (1st Cir. 2011) (“We find it reasonably clear, in
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light of Citizens United, that the distinction between issue discussion and express advocacy has
no place in First Amendment review of these sorts of disclosure-oriented laws.”); Human Life of
Washington Inc. v. Brumsickle, 624 F.3d 990, 1016 (9th Cir. 2010) (“Given the Court’s analysis
in Citizens United, and its holding that the government may impose disclosure requirements on
speech, the position that disclosure requirements cannot constitutionally reach issue advocacy is
unsupportable.”); see also Vermont Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118, 132 (2d
Cir. 2014) (“Citizens United removed any lingering uncertainty concerning the reach of
constitutional limitations in this context. In Citizens United, the Supreme Court expressly
rejected the ‘contention that the disclosure requirements must be limited to speech that is the
functional equivalent of express advocacy,’ because disclosure is a less restrictive strategy for
deterring corruption and informing the electorate.”); Iowa Right To Life Comm., Inc. v. Tooker,
717 F.3d 576, 591 n.1 (8th Cir. 2013) cert. denied, 134 S. Ct. 1787 (U.S. 2014); The Real Truth
About Abortion, Inc. v. Fed. Election Comm’n, 681 F.3d 544, 551–52 (4th Cir. 2012) cert.
denied, 133 S. Ct. 841 (U.S. 2013).
Closer to home, the Tenth Circuit has interpreted this portion of the Citizens United
opinion as a signal that the Supreme Court “upheld federal disclaimer and disclosure
requirements applicable to all ‘electioneering communications.’” Free Speech v. Fed. Election
Comm’n, 720 F.3d 788, 795 (10th Cir. 2013), cert. denied, 134 S. Ct. 2288 (U.S. 2014)
(emphasis in original) (citation omitted). The Tenth Circuit was not addressing the question
presented in this case. Nevertheless, I note its conclusion that “in addressing the permissible
scope of disclosure requirements, the Supreme Court . . . found that disclosure requirements
could extend beyond speech that is the ‘functional equivalent of express advocacy’ to address
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even ads that ‘only pertain to a commercial transaction.’” Id. (quoting Citizens United, 558 U.S.
at 369.
Earlier this month a district court in the District of Columbia addressed a suit like the
present case, also brought by the Independence Institute. Independence Institute v. Fed. Election
Comm’n, No. 14-1500 (CKK), 2014 WL 4959403 (D.D.C. Oct. 6, 2014). The Independence
Institute wished to produce and broadcast a radio advertisement that would ask the current
United States Senators from Colorado – one of whom, Senator Udall, is up for reelection in the
November 4, 2014 general election – to support the Justice Safety Valve Act. The proposed ad
was similar to the ad involved in the present case except that it focused on criminal sentencing
instead of health care laws. The Independence Institute (represented by the same counsel who
represents it here) objected to BCRA’s requirement that it disclose its donors on grounds all but
identical to those it argues here. The court held, “Plaintiff’s claims are foreclosed by clear
United States Supreme Court precedent, principally by Citizens United v. Federal Election
Commission, 558 U.S. 310 (2010).” 2014 WL 4959403 at *1.
The present case involves a challenge to the “electioneering communications” provisions
of Amendment XXVIII of the Colorado Constitution, rather than those in BCRA, but the
substance of the requirements is essentially the same. As it did in the D.C. case, the
Independence Institute argues that the Supreme Court’s comments in Citizens United on the
application of disclosure requirements to speech other than express advocacy or its functional
equivalent were “dicta.” But even if they were dicta (a contention that I question), this Court is
“bound by Supreme Court dicta almost as firmly as by the Court’s outright holdings, particularly
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when the dicta is recent and not enfeebled by later statements.” Peterson v. Martinez, 707 F.3d
1197, 1210 (10th Cir. 2013).
The Independence Institute also attempts to distinguish Citizens United on grounds that
(1) the ads in Citizen United constituted express advocacy, not genuine issue speech; (2) the ads
in Citizens United spoke of a candidate (Hilary Clinton) pejoratively, whereas the ads promoted
by the Independence Institute say nothing pejorative about Governor Hickenlooper; and (3) it is a
501(c)(3) organization whereas Citizens United is a 501(c)(4) organization. These all are
distinctions without a difference.
I do not agree that the Supreme Court viewed the Hillary ads as express advocacy or its
functional equivalent. See Independence Institute, 2014 WL 4959403 at *4. But even if such a
characterization of those ads were correct, the Court clearly indicated that disclosure
requirements are not limited to speech that is the functional equivalent of express advocacy.
Similarly, whether the ads comment pejoratively about a candidate is not relevant.
Although the Court remarked about the pejorative nature of the Hillary ads, the Court’s ruling
did not depend on this characterization. Rather, the Court focused on whether BCRA’s
requirements were met, i.e., whether the speech referenced a candidate by name close in time to
an election. If the requirements were met, the speaker’s identity had to be disclosed.
Finally, the public’s interest in knowing who is speaking is in no way related to an
entity’s organizational structure or its tax status. See Madigan, 697 F.3d at 490 (“[T]he voting
‘public has an interest in knowing who is speaking about a candidate shortly before an election’
whether that speaker is a political party, a nonprofit advocacy group, a for-profit corporation, a
labor union, or an individual citizen.”) (quoting Citizens United, 558 U.S. at 369). The
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Independence Institute argues that because 501(c)(3) organizations may not engage in activity
supporting or opposing a candidate, the law should exempt them from the disclosure
requirements. This begs the question. The Secretary stipulates that the subject ad does not
support or oppose a candidate; if it did, then presumably the Independence Institute would not
promote it.
CONCLUSION
The First Amended does not “erect[] a rigid barrier between express advocacy and socalled issue advocacy.” McConnell, 540 U.S. at 193. In 2003 the McConnell Court rejected a
facial challenge to the breadth of the term “electioneering communication,” and seven years later
the Citizens United Court rejected an as-applied challenge to the same term. Both Courts
explicitly held that an electioneering communication need not constitute express advocacy or its
functional equivalent in order to trigger the disclosure requirements. The Independence Institute
seeks to change the distinction, to require an exception for “pure issue advocacy” as compared to
“campaign related advocacy.” Yet the plaintiff presents no authority that would require, let
alone allow, this Court to find a constitutionally-mandated exception for its advertisement on the
grounds that it constitutes “pure issue advocacy.” Accordingly, because the plaintiff has not
succeeded on the merits of its claim, the application of the electioneering communications
requirements of Amendment XXVIII of the Colorado Constitution will not be enjoined by this
Court.
ORDER
Plaintiff’s Motion for Preliminary Injunction/Summary Judgment [ECF No. 13] is
DENIED, and defendant’s Cross-Motion for Summary Judgment [ECF No. 21] is GRANTED.
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Final judgment dismissing this case with prejudice is entered in favor of the defendant, Scott
Gessler in his official capacity as the Colorado Secretary of State. As the prevailing party the
defendant is awarded his reasonable costs pursuant to Fed. R. Civ. P. 54(d)(1) and
D.C.COLO.LCivR 54.1.
DATED this 22nd day of October, 2014.
BY THE COURT:
___________________________________
R. Brooke Jackson
United States District Judge
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