Colorado Free Speech

Independence Institute v. Buescher
Stifling Political Speech: Challenging Colorado's Campaign Finance

Nationwide, campaign finance laws, which many hope would be used to “clean up” elections, are instead being widely abused to stifle the speech of those who are unpopular with the political establishment. In Colorado, the Independence Institute, a free market non-profit think tank, faced charges under the state’s campaign finance laws for merely speaking out on statewide ballot referenda.

During the 2005 election season, the Independence Institute, a long-time proponent of lower taxes and fiscal responsibility, commented extensively on Referenda C & D, which it believed would raise taxes and increase government spending. After running a series of radio ads criticizing the referenda, the Institute found itself the subject of a complaint filed with the Colorado Secretary of State claiming that it was not an educational non-profit, but an “issue committee” that was “campaigning” against the referenda and had violated campaign finance laws by failing to register with the State, report all expenditures and contributions, and disclose the identities of its supporters.

Although the complaint was ultimately thrown out as unwarranted, after experiencing firsthand how these laws can be used as a political weapon to stifle free speech and impose steep financial and opportunity costs on dissenters, the Independence Institute filed suit challenging the vague language of Colorado’s campaign finance laws as well as their disclosure and reporting requirements that chill political speech and association. The Institute is also challenging the laws’ requirement that contributors’ identities be disclosed as a violation of individuals’ right to anonymous speech and political participation.

Unfortunately, a Colorado appeals court upheld the law and, in November 2009, the U.S. Supreme Court declined review of that decision.  As a result, nonprofit groups like the Independence Institute continue to be chilled.  But the fight isn’t over—IJ is litigating a separate challenge to Colorado’s campaign finance laws in federal court, Sampson v. Buescher.