Citizens United Can Keep Film Donors Secret, for Now: 10th Cir.

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By Mark Wilson, Esq. on October 16, 2014 2:10 PM

We recently blogged about a rash of post-Citizens United cases brewing in the lower federal courts. These cases are trying to slowly push corporate speech forward, this time by exempting certain speakers from campaign disclosure requirements.

In the Tenth Circuit, the Court of Appeals has tentatively allowed Citizens United (they very same!) to refrain from disclosing its donors pending the outcome of Citizens United v. Gessler before the court.

A Brief Recap

Citizens United made a movie about advocacy groups outside of Colorado and their influence on state politics (the irony is apparently lost on Citizens United, which is a national organization -- albeit one with an office in Colorado -- seeking to influence Colorado politics). The Colorado Secretary of State said the movie, "Rocky Mountain Heist," was electioneering communication and the organization had to disclose who contributed to funding it. A Colorado district court agreed.

The Tenth Circuit, in a three-paragraph order, said that Citizens United would be treated like a "broadcast facility or publisher of a print periodical" for the time being. Colorado law exempts such speakers from the disclosure requirements. The court also ordered that neither the film nor ads for the film should be treated as electioneering communications, as long as the ads don't mention a candidate by name or advocate for or against a candidate.

Electioneering Communication?

The Colorado state rules regarding disclosure of contributors to electioneering communication don't apply to newspapers, magazines, or periodicals; editorial statements made by a broadcast facility; communications made by a membership organization in the course of its organization; or communications that mention a candidate's name as part of the name of a bill or statute.

Citizens United has been trying to hang its hat on this exemption, claiming that it's being discriminated against just because it's not a "favored speaker" like the "institutional press." This argument, though, didn't endear Citizens United to Judge R. Brooke Jackson, who ruled against them in district court. "As the defendants and defendant-intervenors discuss, the disclosure exemptions are not premised on the type of entity but on the form of speech," he said in his order from last month. "[I]f Citizens United publishes an op-ed in a newspaper, it will not be required to disclose the funding behind the piece. Likewise, if the Denver Post produced a film expressly advocating for the reelection of Governor John Hickenlooper, it would be forced to comply with the disclosure requirements."

If it's successful at the Tenth Circuit and the Supreme Court (where this is obviously headed), then the floodgates will open, as they did the first time, and the last vestiges of Buckley v. Valeo and McConnell v. FEC, which are now limited to disclosure requirements, will disappear.

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