Citizens United Rebuffed on Campaign Disclosures in Colo. Dist. Ct.

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By Mark Wilson, Esq. on September 24, 2014 4:46 PM

We write a lot around here about the repercussions of Citizens United v. FEC, but we've never done a People magazine-style "where are they now?" about Citizens United. Has it become embroiled in drugs? A nasty divorce? Bankruptcy?

Nope, Citizens United -- the organization -- is still alive and well, and churning out documentaries. This time, the documentary is called "Rocky Mountain Heist," which "concerns various Colorado advocacy groups and their negative impact on Colorado government and public policy," referring to elected officials and candidates by name.

Keep It Secret, Keep It Safe

As an advocacy organization, Citizens United is required to disclose the identities of its donors. This argument isn't new: Many advocacy organizations have tried -- and failed -- to argue that their donors should be shrouded in mystery, because if people in California knew that someone had donated money to a pro-Proposition 8 organization, they might not like that person anymore. In other words, they don't want the "marketplace of ideas" to function properly.

Colorado's Amendment 27, enacted in 2002, requires organizations engaging in "electioneering communications" to disclose their donors. Exempt from the reporting requirements are newspaper articles and editorials, among other things. Citizens United sought a preliminary injunction on the ground that Colorado is "burdening speech on the basis of the speaker's identity."

'The Court Is Not Persuaded'

"The State is doing no such thing," wrote Judge R. Brooke Jackson of the U.S. District Court for the District of Colorado, in an order denying the preliminary injunction. Jackson was not pleased with Citizens United's attempts to turn a content-neutral law into a content-discriminating law based on the identity of the speaker, which would bump the level of review up to strict scrutiny.

Instead, Jackson applied "exacting scrutiny," which is intermediate-ish scrutiny. Even on this standard, Citizens United loses. Colorado is not -- as Citizens United claims -- preferring one speaker over another by exempting newspapers and magazines from the disclosure requirement. Unlike newspapers and magazines, which don't exist for the express purpose of political advocacy, organizations like Citizens United do make such advocacy their mainstay. Nor did Citizens United demonstrate that subscribers gave money to newspapers and magazines for the express purpose of making electioneering communications.

The district court was also not persuaded that Citizens United should be declared a "press entity" -- but that status "does not exist in Colorado." Even if it were, the exemptions have nothing to do with the speaker: A newspaper producing a film advocating for a candidate would be subject to the requirement, but if Citizens United published an op-ed in a newspaper, it would be exempt.

"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," the order concluded. Given the uproar over Citizens United classic edition, higher courts might want to keep this one far away.

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