Colorado Ethics Watch v. Senate Majority Fund, LLCAnnotate this Case
During the November 2008 election season, parties Senate Majority Fund, LLC (SMF) and Colorado Leadership Fund (CLF) were registered with the I.R.S. as so-called "527" tax-exempt political organizations. In the run-up to the November 2008 election, SMF distributed eight printed political ads and one television ad and CLF distributed eight printed ads that were the subject of this dispute. None of the seventeen ads contained words or phrases that specifically directed the viewer to "vote for," "elect," "support," "vote against," "defeat," or "reject." Similarly, none of the ads included the phrase "[candidate] for [office]." The court of appeals affirmed dismissal of this case by an administrative law judge (ALJ) for failing to state a claim upon which relief could be granted. At issue is the meaning of "expressly advocating the election or defeat of a candidate," as that phrase is used within the definition of "expenditure" in article XXVIII of the Colorado Constitution, the Campaign and Political Finance provision. The parties contended that "express advocacy" encompassed only those advertisements that explicitly exhort the viewer, listener, or reader to vote for or against a candidate in an upcoming election. This included the use of so-called "magic words," as set forth in "Buckley v. Valeo," (424 U.S. 1, 44 n.52 (1976)), as well as substantially similar synonyms of those words. Appellant Colorado Ethics Watch (Ethics Watch) argued that the category of advertisements that "expressly advocate" is more expansive and encompasses any advertisement that is the functional equivalent of express advocacy. The court of appeals rejected Ethics Watch's argument and held that, given the settled definition of express advocacy at the time that article XXVIII of the Colorado Constitution was adopted, the category of advertisements that constitute express advocacy was intentionally limited to include only those ads that use the magic words or those that explicitly advocate for the election or defeat of a candidate. After reviewing article XXVIII and the legal context in which it was adopted as a citizen's initiative in 2002 (known as Amendment 27), the Supreme Court agreed with the court of appeals that "expenditure" was intentionally and narrowly defined in article XXVIII to include only "express advocacy," so that it covers only those communications that explicitly advocate for the election or defeat of a candidate in an upcoming election. The Court affirmed the appellate court and remanded the case to the court of appeals to return to the ALJ to enter judgment consistent with the Court's opinion.