Citizens United Appeals to 10th Cir., Wants to Hide Donor List

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By William Peacock, Esq. on September 30, 2014 1:27 PM

Yes folks, that's the same Citizens United, and they're at it again: litigating their way to through the courts, hoping to upset established campaign finance law.

As we blogged about last week, their target is an amendment to the Colorado Constitution and a state law, which together require disclosure of donors who fund electioneering communications. The communication at issue here, "Rocky Mountain Heist," is ironically a documentary film that seeks to shine a light on money in Colorado politics. Citizens United is hoping that the appeals courts will allow it to keep its contributors masked because the district court really wasn't convinced. (H/T to Election Law Blog)

District Court is Really Not Convinced

We've already given you the gist of the district court opinion, but there are two passages that really stand out, beginning with where the court cited Citizens United against Citizens United:

The Supreme Court was forced to balance two interests when it decided the pivotal case Citizens United v. Federal Election Commission, 558 U.S. 310 (2010): the interest of political speakers and the interest of their audience, the electorate. As relevant to the present case, the Court came to the conclusion that while "[t]he First Amendment protects political speech," disclosure "permits citizens and shareholders to react to the speech of corporate entities in a proper way." 558 U.S. at 371. "This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages." Id. In Citizens United, the Court found "no constitutional impediment to the application of" disclaimer and disclosure requirements to Citizens United's advertisements of the movie Hillary or to the movie itself. See id. And yet, Citizens United is here today asking this Court to find such an impediment with regard to its new film, Rocky Mountain Heist.

And, of course, the real nasty conclusion:

The marketplace of ideas does not function as well if listeners are unable to discern the private interests behind speech when determining how much weight to afford it. Aware of this problem, in 1976 the Supreme Court declared that "disclosure requirements certainly in most applications appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist." Buckley, 424 U.S. at 68. Thirty-four years later the Citizens United Court reaffirmed this sentiment by a vote of eight to one. See 558 U.S. at 366-71. Today, Citizens United comes before this Court hoping to unravel forty years of precedent by reframing the issue as one of content and viewpoint discrimination. The Court is not persuaded.

Does Citizens United Have a Point?

While venomous court opinions are always fun to read, Citizens United's argument is that the law treats traditional media and newspapers differently than it does documentary filmmakers (Citizens United in particular). The district court pointed out that the law limits the disclosure requirement to those who specifically earmark their donations for the purpose of funding the electioneering message itself, something that happened with Citizens United's "Rocky Mountain High" film, but doesn't happen with traditional media -- apples and oranges, in other words.

We'll see what the Tenth Circuit has to say: According to the Election Law Blog, Citizens United filed an emergency motion on Friday. In that motion, the group presses the "us versus them," "new media versus big media" argument hard:

Colorado's reporting and disclosure requirements force speakers to file detailed reports with the State and make burdensome public disclosures about the sources of their funding simply to exercise the fundamental right to discuss political candidates before an election. Those requirements do not apply, however, to speakers who own newspapers, magazines, or radio or television stations. Those favored speakers -- the so-called "institutional press" -- may engage in electioneering communications and independent expenditures free from state regulation, while speakers such as Citizens United who do not own a periodical publication or broadcast facility may do so only if they comply with the State's extensive reporting and disclosure requirements.

Is this really a new media versus big media viewpoint discrimination case? Or is the district court right that we're comparing two different things -- electioneering messages paid for by interested parties versus op-eds and traditional press? We'll see what the Tenth Circuit has to say.

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