Parker North, CO Free Speech - Background
Silencing Political Speech:
Colorado’s Campaign Finance Laws Stifle Political Debate
The Issue in a Nutshell
In America, the only thing you should need in order to speak out about politics is an opinion. After all, political speech and participation is exactly what the First Amendment was designed to protect.
But in Colorado, you need more than an opinion. To speak effectively about elections in Colorado, you must be prepared to register with the State, track and report all of your “contributions” and “expenditures” and disclose the identities of anyone who contributed money to your efforts. So if you and a neighbor distribute fliers or put up yard signs that support or oppose a ballot issue, Colorado considers you an “issue committee” and redefines your speech as campaign “finance” activities as long as you spend more than $200. If you do not register and comply with burdensome reporting requirements, anyone off the street with a political ax to grind can sue you for violations of the campaign finance laws.
The residents of Parker North, Colo., discovered this the hard way. In the midst of a debate about whether their tiny subdivision of about 300 homes should be annexed into the neighboring town of Parker, the supporters of annexation filed a campaign finance complaint against the six most vocal opponents, and threatened to go after anyone else with a yard sign opposing the annexation.
Individuals should not have to register with the government and comply with onerous regulations in order to talk about politics. Unfortunately, campaign finance laws are threatening to place simple political activism beyond the reach of anyone but professional politicians and campaigners. Left unchecked, the day is coming when Americans will view the prospect of participating in the political process the same way they view filing their income tax returns—too much time, too much red tape, too much anxiety. In short, the more costly and difficult we make political speech, the less of it we will get. That is a tragedy in a nation whose people consider political speech and participation a birthright.
On September 19, 2006, the Institute for Justice filed suit against the Colorado Secretary of State, who is responsible for enforcing Colorado’s campaign finance laws. The case seeks to vindicate the free speech rights guaranteed by the U.S. Constitution.
The Institute for Justice is a non-profit, public interest law firm that litigates on behalf of individuals whose rights are being violated by the government. IJ accepts no government funds. To make a tax-deductible contribution to support IJ’s litigation, call (703) 682-9320 ext. 233 or visit www.ij.org/donate.
Norm Feck and his wife, Kateri, bought their home in the neighborhood of Parker North, Colo., because they thought Parker North would be a great place to raise a family, and they particularly liked the fact that the neighborhood was not part of the nearby town of Parker. Parker North is part of unincorporated Douglas County, a suburb of Denver. To Norm and his wife, that meant less government interference with their lives and fewer hassles. Many of their neighbors agree with that sentiment and like Parker North just the way it is.
Thus, when Norm heard one day in February 2006 that the Town of Parker was holding a meeting that evening to discuss the possibility of holding an election to annex Parker North into the town, he decided to attend. He remembered that someone had circulated a petition about annexation, but didn’t hear anything after that and assumed that nothing had come of the idea. At the meeting, Norm and many of his neighbors heard another resident of Parker North, David Hopkins, speak at length about the virtues of annexation. Norm strongly disagreed with what he heard, so after the meeting he did what anyone with a strong opinion would do: he wrote a letter to the Mayor and the Town Council expressing his disagreement with the proposal, and copied all of his neighbors.
What followed was a classic American political debate. Norm soon learned that many of his neighbors had similar questions and concerns about annexation. He discussed the issue with many of them, met occasionally with others and walked around the neighborhood to inform still others about his views on the issue and to urge them to find out more. Several residents of Parker North became active on the issue as well. Tom Sorg, who lives across the street from Norm, joined him on occasion to discuss the issue with the residents of Parker North. Norm and Tom later met Louise Schiller, who had signed the petition for annexation, but later had second thoughts and decided to express her views to her neighbors. Karen Sampson wrote letters to the editor of the local newspaper and created information sheets to inform neighbors about annexation. After Tom and another neighbor created an online discussion group for all of the residents of Parker North to discuss annexation, Becky and Wes Cornwell began to criticize the idea. Soon, many residents of the neighborhood had placed “No Annexation” signs on their lawns, others had put up pro-annexation signs, and residents both pro and con attended town meetings to discuss and debate the issue.
Emotions sometimes ran high, but otherwise the debate was precisely what the American Founders envisioned as a vital part of a constitutional republic: vigorous discussion and debate among citizens about a matter of local governance. Unfortunately, Colorado law allows political antagonists to suppress political debate with a lawsuit. Norm, Tom, Karen, Louise, Wes, and Becky discovered this the hard way when the primary supporter of annexation filed a legal complaint against them claiming that their “campaign activities” violated Colorado’s campaign finance laws.
The complaint claims that by opposing annexation, these residents became an “issue committee” and violated Colorado law by failing to register with the state and comply with the reporting, disclosure and other regulations for issue committees. The complaint threatens the defendants with sanctions for their “illegal activities” and ominously states that anyone who has contacted the defendants or received a lawn sign from them may be subjected to “investigation, scrutinization, and sanctions for Campaign Finance violations.”
Now Norm and his neighbors are fighting back, not only against the complaint, but also with their own separate federal constitutional challenge. On September 19, 2006, they filed Sampson et al. v. Gigi Dennis, Secretary of State of Colorado, in federal district court for the District of Colorado, arguing that Colorado’s onerous and invasive campaign finance laws violate the First Amendment to the U.S. Constitution.
Campaign Finance Laws Affect Everyone, Not Just Politicians
Most people think that campaign finance laws—if they think about them at all—affect only politicians and simply require them to disclose contributions to their campaigns. The U.S. Supreme Court has upheld these laws when the purpose is to prevent “quid pro quo corruption”—that is, politicians trading favors for campaign donations. But few people realize the same laws often apply to ballot issue elections, even local ones, where there is no politician to corrupt. Fewer still realize how burdensome the laws can be, and the legal costs and sanctions individuals face for even innocent violations.
Under Colorado’s campaign finance laws, any time two or more people spend or receive more than $200 to “support or oppose” a ballot issue or question, they automatically become an “issue committee” whether they know it or not.[i] Issue committees must register with the State and may only fund their “campaign activities” from a separate bank account opened solely for that purpose. They must list the ballot issues or questions they intend to support or oppose on their registration statements and must not support or oppose any issues that are not listed on their statement. Issue committees must track all expenses and report them to the Secretary of State. That means keeping track of every piece of printing paper and ink cartridge that goes into printing their letters or fact sheets to their neighbors, and reporting every lawn sign they purchase from a printer or the cardboard, wooden dowels, and magic markers they use to create them. Issue committees must also keep track of every dollar that goes to fund their activities, and must report to the Secretary of State the identities and addresses of anyone who contributes more than $20.[ii] For those who contribute more than $100, the issue committee must disclose their employers as well. “Contributions” include more than just cash. Donations of goods must also be reported, and also count toward the $200 threshold that defines an issue committee.[iii] For people like the residents of Parker North, this means that just getting together and deciding to share the costs of printing up yard signs can qualify them as an issue committee.
Failing to comply with these regulations can mean fines and legal defense costs if a complaint is filed against you, even if you never knew that the campaign finance laws might apply to you. Worse, Colorado’s law allows “any person” to file and prosecute a complaint against someone he or she thinks might be violating the campaign finance laws.[iv] Imagine if anyone—your neighbor, your work colleagues, your former clients or customers, your ex-husband or wife—could bring a lawsuit against you to enforce the tax laws, the building code or one of the thousands of other regulations that exist today. Add that to a setting in which your opponent is likely to have a political ax to grind, and you have Colorado’s campaign finance laws.
Not surprisingly, the complainant who filed the case against the residents of Parker North is one of their neighbors and a chief supporter of annexation. Her lawyer in the case is the man who first proposed the idea of annexation and spoke out in favor of it at the town meeting in February.
Faced with the possibility of sanctions, Norm, Tom, Karen, Louise, Wes and Becky ended up hiring a lawyer to defend against the complaint. In an abundance of caution and to avoid any further sanctions, they also registered as an issue committee. They do not believe they should have to comply with onerous regulations simply to speak out about the issue of annexation, but felt they had no other choice under the circumstances.
Indeed, the whole point of the First Amendment, and its protections for free speech and association, is to allow open and vigorous discussion and debate about important issues, especially political issues.[v] As the U.S. Supreme Court has said, “it is a prized American privilege to speak one’s mind . . . on all public institutions, and this opportunity is to be afforded for vigorous advocacy no less than abstract discussion.”[vi] The First Amendment “was fashioned to assure unfettered interchange of ideas” and expresses “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.”[vii]
There is something wrong when, in a nation that cherishes free speech and self-government, a State can saddle individuals with regulations, red tape and the threat of lawsuits simply for speaking out about an important political matter like a ballot issue. In America, no one should have to get the government’s permission—or his or her neighbor’s—to speak about political issues.
How did we get to this point?
Campaign Finance Laws: Preventing Corruption or Controlling Political Speech?
Campaign finance laws have long been justified as necessary to prevent quid pro quo corruption. In other words, campaign contributions are thought to tempt contributors to try to purchase political favors and politicians to try to sell them. Roughly 30 years ago, the Supreme Court upheld many provisions of the first comprehensive modern campaign finance law on the grounds that the law was necessary to prevent corruption of politicians.[viii] The evidence that such corruption is common is scarce. Most people give money to campaigns because they actually support the candidates or issues, and most candidates solicit contributions because campaigning is expensive. Nevertheless, the belief persists that quid pro quo corruption is widespread and cannot be remedied by simple bribery laws.
But even if the corruption justification applies to elections for political office, it cannot possibly apply to ballot issue elections because in ballot issue elections there is no politician to corrupt. Recognizing this, the Supreme Court has struck down contribution limits and other restrictions on ballot issue campaigns.[ix] Even so, many States have persisted, requiring contributors to ballot issue campaigns to disclose their identities and other personal information and imposing onerous registration and reporting requirements on those who run the campaigns. The justification for these laws is no longer corruption, but combating voter ignorance by requiring ballot issue campaigns to disclose the source of their funds.
This informational justification has a superficial appeal because people generally believe that more information is always better than less, and that sunlight makes the best disinfectant. But what, exactly, is this information “disinfecting”? If there is no politician running for office, then there is no possibility of quid pro quo corruption.
Even if funding sources are in some sense relevant, disclosure laws have a profoundly negative impact on contributors’ privacy and on those trying to run effective ballot issue campaigns. Candidates are human beings with a wide variety of views, and contributing to their campaign does not disclose much about a person’s views. But ballot issues are pure political issues, and contributing to one is tantamount to voting for it. The government has no right to make you disclose which way you voted in an election. It should not be permitted to do the same thing by forcing you to disclose which side you support before the election. Moreover, ballot issues often involve many of the most controversial issues of the day, such as medical marijuana, gay marriage, affirmative action and assisted suicide, to name just a few. It is crucial to protect ballot issue contributors’ privacy for the same reason we protect voters’ privacy—to protect their right to political participation without fear of threats, intimidation, harassment or reprisals.
The impact on those who want to run ballot issue campaigns can be just as severe. Complying with regulations and red tape takes time and effort. The more costly and difficult we make political speech and participation, the less of it we will get. And no regulatory scheme exists without an enforcement mechanism and the prospect of sanctions for its violation. Being sued is frightening and expensive and very quickly can dampen one’s feelings of civic pride and public-spiritedness. Although the plaintiffs in this lawsuit want to speak and associate about ballot issues or questions in the future, some or all of them will not do so because of the threat of being sued. In short, campaign finance laws don’t take the money out of politics. They just put the lawyers in.
The residents of Parker North are not the only ones who have felt the impact of oppressive campaign finance laws. Across the country, many people are finding their political speech threatened and restricted by these laws.
Many more laws are on the books than even these cases indicate. On the heels of the U.S. Supreme Court’s infamous decision in McConnell v. FEC, the federal government and at least 13 States now ban ads funded by corporations or labor unions that mention a candidate within 30 days of a primary or 60 days of an election.[xiii] Florida recently passed a law that imposes arduous reporting and registration requirements on any group, including a non-profit, that sends a publication into the state that mentions a candidate for election or a ballot issue within a certain time preceding an election.[xiv] And although the U.S. Supreme Court recently struck down Vermont’s extremely low limits on political contributions, [xv] many more States have them and will no doubt continue the fight to restrain speech and political participation.
Whatever the original intent of campaign finance laws, today their impact on political speech is undeniable. The whole point of the laws is to regulate contributions or expenditures of money that support or oppose politicians or ballot issues. Campaigns receive and spend money for only one purpose—to promote the candidate or issue, to oppose the other side, to advertise, and to “get the message out”—in short, to fund speech. Indeed, in 1997, 38 U.S. senators voted to amend the First Amendment to the U.S. Constitution to weaken its protections for free speech and make room for more campaign finance regulation.[xvi] The amendment effort failed, but it makes crystal clear that even the proponents of campaign finance laws recognize that their purpose is to control political speech.
The term campaign “finance” in describing these laws is a gross misnomer. They are political speech restrictions, pure and simple. They have no place in a nation that prides itself on free and unfettered political debate.
The First Amendment protects the right of every individual to speak out on political issues, free from unnecessary or arbitrary burdens or the threat of fines or sanctions, and so Colorado’s regulations suffer from three primary failings and provide nowhere near the protections political speech deserves.
Laws that burden speech must be narrowly drawn to serve a compelling State interest.[xvii] That means that the benefits of the law must be extremely important and must clearly outweigh the burdens, and the law must be no broader than necessary. Colorado’s registration and reporting requirements for issue committees fail miserably.
Ballot issue elections raise no possibility of corruption, because there is no candidate to corrupt.[xviii] Recognizing this, the States, including Colorado, have fallen back on the claim that disclosure and reporting requirements are still necessary for ballot issues in order to provide voters with information about funding sources. This claim is dubious, as stated above. But even if the information is generally relevant, forcing people to disclose it cannot be considered a compelling or even substantial government interest unless States can document their claims that voters are indeed ignorant about ballot issues, actually consider the information necessary in deciding which way to vote, and cannot obtain it any other way.
Even if the informational interest is considered compelling, forced disclosure does not outweigh the harm to political speech and participation and there are far narrower ways than Colorado has chosen to obtain that information. As stated above, issue committees must register with the State, open bank accounts, and track and report all of their expenditures and contributions.[xix] As the U.S. Supreme Court has noted, “[d]etailed record-keeping and disclosure obligations . . . impose administrative costs that many small entities may be unable to bear.”[xx] While professional politicians and experienced campaigners may have little difficulty complying with these obligations, people like the residents of Parker North will often be stymied by questions about what constitutes a “contribution” or an “expenditure,” where and when to file reports, and when an issue actually becomes a “ballot issue” that triggers these regulations. And the sheer time and effort required to comply with the laws, coupled with the high costs in possible sanctions and legal expenses of making a mistake, will often make the effort more costly than it is worth.
As one judge put it, “Trade associations and other interest groups will have little problem complying with [the] law. Factions that hope to secure political favors enjoy legal counsel who specialize in election matters.”[xxi] The layman, unlike the professional politician, has only one truly safe option: silence.
In effect, Colorado’s registration and reporting requirements add a surcharge to political speech and association. Before speaking, citizens must invest the time and money necessary to become familiar with a complex and unclear body of regulations, determine if anyone else could be lumped together with them to create a group, and then comply with regularly-scheduled reports—all because they may have spent more than $200 making signs or leaflets. In exchange for a molehill worth of disclosure, political speakers are forced to climb a mountain of paperwork. This misguided tradeoff is one the First Amendment forbids.
The law’s heavy burden is made far worse by the fact that anyone can file a complaint alleging a violation of the campaign finance laws and prosecute that alleged violation. The U.S. Supreme Court has recognized that the freedom of speech needs “breathing space” lest people be intimidated into silence out of a fear of the cost and worry of litigation. This is why, for example, in libel lawsuits concerning a public person, courts require plaintiffs to show “actual malice” before recovering damages—a high standard intended to protect free speech and vigorous debate.[xxii] Laws like Colorado’s turn that idea on its head—instead of providing more protection for speech than offered under baseline rules, the campaign finance laws provide less.
Traditionally, State prosecutors prosecute violations of State law—giving defendants some assurance that an independent party has evaluated the charges against them. But Colorado’s campaign finance laws allow the one party with the most to gain from such a suit—the opposing side on an issue or campaign—to bring and prosecute it.[xxiii] The result is not difficult to predict. Political partisans file complaints and are able to use the laws to harass and even sanction their opponents. It is strange enough to entrust the Republican party in Colorado with the authority to decide whether to prosecute their counterparts in the Democratic party for campaign finance violations—or vice versa. But it is intolerable to encourage that to happen among neighbors involved in heated local disputes, who often lack the resources or knowledge even to navigate the campaign finance laws, much less defend themselves in a lawsuit.[xxiv]
The Supreme Court has made clear that the First Amendment does not allow a “heckler’s veto”—that is, private citizens who are opposed to certain speech cannot be given the power to suppress it.[xxv] And as one Supreme Court Justice noted, laws that allow this sort of unchecked private prosecution of speakers are an open invitation for “a purely ideological plaintiff . . . to bring into the courtroom the kind of political battle better waged in other forums.”[xxvi]
By allowing unchecked private enforcement, Colorado is sending a clear message to people who want to speak out on contentious issues: get a lawyer or keep quiet.
The First Amendment protects not just the right to speak publicly, but also the “respected tradition of anonymity in the advocacy of political causes.”[xxvii] Colorado’s laws make a mockery of that right. Anyone who wants to help their neighbors speak out about an issue runs a risk of having their support trumpeted not just to their neighbors, but to the entire world via the Internet. What’s more, there is no way to know whether your neighbors will eventually have to register as an issue committee before you help them make a sign or lend them your car (both of which are activities that must be reported to the State). Colorado’s laws make quiet, small-scale support impossible—if you support the cause, that support must be broadcast to the world.
Ballot issue elections often involve many of the most controversial issues of the day. Thus, disclosure laws force citizens to choose between their right to keep their political views private and their right to political speech and participation. For instance, what public school teacher would contribute to a ballot issue campaign that opposed more funding for public schools when they risk incurring the wrath of fellow teachers, principals or the union? How likely will an otherwise conservative person be to contribute to an initiative campaign in favor of gay marriage when his support might be disclosed to his family, his business colleagues, or the members of his church?
“Anonymity,” as the U.S. Supreme Court has put it, “is a shield from the tyranny of the majority
. . . . It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society.”[xxviii] Throughout our history, anonymity has been vital to political speech and participation. During the ratification debates over the Constitution, James Madison, John Jay and Alexander Hamilton published the Federalist Papers under the pseudonym “Publius” as a series of articles urging support for the new Constitution. Those opposed to the new Constitution often did the same. Should they have been forced to disclose their identities because they were “supporting or opposing” the Constitution? Should civil rights groups be forced to disclose the identities of their members when they support or oppose a ballot initiative?
Voters have every right to request that those campaigning for issues disclose their funding sources voluntarily. Indeed, any voter who does not believe she has received sufficient information about an issue should refuse to vote for it. But no one should be forced to choose between exercising the right to free speech and political participation and exercising the right to privacy.
Karen Sampson lives with her sister in a quiet home in Parker North. Even though Karen is a busy consultant, she thought it was worth her time to share information with her neighbors about the annexation issue. But she never considered herself to be part of some organized anti-annexation group. When she received the complaint against her, Karen was angry and confused; she couldn’t understand how this type of lawsuit could happen in this country. She is challenging these laws because in America you have the right to speak to your neighbors—and political bullies should not be able to stop you.
Norm Feck is an electrical contractor who likes living in a neighborhood that is not part of any town. While Norm believes strongly in his right to speak out about political issues and vigorously opposes annexation, he wonders whether the time this has taken is worth it. He is challenging Colorado’s campaign finance laws because he believes no one will speak up if you have to jump through hoops like this.
Becky Cornwell is a successful children’s book author. Her husband Wes runs a local print shop. They have three kids and have lived in Parker North since 1990. Becky and Wes first heard about the annexation issue from one of their neighbors. They weren’t too pleased with the idea, so they made a “No Annexation” sign for their front lawn, and another for one of their neighbors. Soon others were asking for signs, so Wes printed more signs and sold them at cost. He thought he was just helping his neighbors express their views. Becky and Wes believe that no one should have to file papers with the state or risk a lawsuit every time they help a neighbor put a sign in his or her front yard.
Tom Sorg opposes annexation because he thinks it will mean higher taxes and fewer services for Parker North. He started a Parker North Yahoo discussion group along with another neighbor to allow residents of the neighborhood to learn about and discuss the issue. For Tom, being sued for speaking up has really soured him on participating in a political issue ever again, and he does not want that to happen to others.
Louise Schiller has resided in Parker North with her two sons since 1997 and feels a strong obligation to be an informed voter. She became involved in the annexation issue after receiving more information from Norm Feck, so his right to free speech in this instance actually affected her. Louise is very busy with work, however, so the time and cost of dealing with a lawsuit over campaign finance laws has left her with little time to focus on the annexation itself. As time allows, she will continue to support the no annexation issue.
Colorado’s campaign finance laws—like the growing number of campaign finance laws across the country—make speaking out about political issues more costly, both in time and potential liability. The more difficult we make political speech and participation, the less people will feel free to speak. Norm, Karen, Becky, Wes, Tom and Louise are fighting for their right to participate in political debate the next time they hear about an issue they care about. They know how it feels to have their own right to free speech threatened and they don’t want other Coloradoans to suffer the same fate.
The Institute for Justice’s legal team will be led by Senior Attorney Steve Simpson. Simpson litigates free speech, economic liberty and property cases nationwide. Simpson is lead counsel in IJ’s challenge to Colorado’s campaign finance laws on behalf of the Independence Institute. Simpson will be joined by William H. Mellor, president and general counsel of the Institute for Justice, and Valerie Bayham, a staff attorney.
Reinforcing and Expanding Free Speech
The Institute for Justice litigates in support of fundamental individual liberties, including free speech. IJ’s headquarters and state chapters have scored significant victories on behalf of individuals and businesses throughout the nation. A few of these important speech victories include:
For more information contact:
John Kramer, Vice President for Communications (firstname.lastname@example.org)
Lisa Knepper, Director of Communications (email@example.com)
Institute for Justice
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[i] Colo. Const. art. XXVIII, § 2(10)(a).
[ii] Colo. Rev. Stat. §§ 1-45-108 &-109 (2006).
[iii] Colo. Const. art. XXVIII, § 2(5)(a).
[iv] Colo. Const. art. XXVIII, § 9(2).
[v] Mills v. Alabama, 384 U.S. 214, 218-19 (1966).
[vi] New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964) (citations and internal quotation marks omitted).
[vii] Id. at 269-70.
[viii] Buckley v. Valeo, 424 U.S. 1, 26-27 (1976).
[ix] See Citizens Against Rent Control v. Berkeley, 454 US 290, 299 (1981); First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 776-77 (1978).
[x] More information about this case, Independence Institute v. Richard Evans, is available at /index.php?option=com_content&task=view&id=1262&Itemid=165.
[xi] More information about the case, San Juan County v. No New Gas Tax, is available at /index.php?option=com_content&task=view&id=1269&Itemid=165.
[xii] Verified Complaint at 4-5, Hanway v. Linthicum, No. 4:06-CV-399 (N. D. Fla. filed August 31, 2006).
[xiii] See, e.g., Bipartisan Campaign Reform Act (BCRA), § 201, 2 U.S.C. 434(f)(3)(A)(i); Colo. Const., art. XXVIII, §§ 2(7), 6.
[xiv] Fla. Stat. §§ 106.011(1)(b)(3), 106.011(18).
[xv] Randall v. Sorrell, 126 S. Ct. 2479 (June 26, 2006).
[xvi] Congressional Record, March 18, 1997 (cited in Smith, Unfree Speech: The Folly of Campaign Finance Reform (2001) at 10 n. 5.)
[xvii] Citizens for Responsible Gov’t State Political Action Comm. v. Davidson, 236 F.3d 1174, 1198 (10th Cir. 2000) (citing Buckley v. Valeo, 424 U.S. 1, 25 (1976)).
[xviii] See Citizens Against Rent Control v. Berkeley, 454 US 290, 298 (1981); First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 776-77 (1978). See also Homans v. City of Albuquerque, 366 F.3d 900, 911 (10th Cir. 2004) (“Thus far, the Supreme Court has recognized but one interest sufficiently compelling to justify campaign-finance regulation: the anti-corruption rationale.”).
[xix] Colo. Rev. Stat. § 1-45-108(1)(a) (2006).
[xx] FEC v. Mass. Citizens for Life, 479 U.S. 238, 254 (1986) (plurality opinion). See also id. at 266 (O’Connor, J., concurring in part and concurring in the judgment).
[xxi] See Majors v. Abell, 361 F.3d 349, 357 (7th Cir. 2004) (Easterbrook, J., ”expressing doubt about a judgment.)
[xxii] New York Times, 376 U.S. at 279-80, 298.
[xxiii] Colo. Const. art. XXVIII, § 9(2).
[xxiv] Marshall v. Jerrico, Inc., 446 U.S. 238, 249-50 (1980) (a “scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions.”).
[xxv] See Reno v. ACLU, 521 U.S. 844, 880 (1997).
[xxvi] Nike v. Kasky, 539 U.S. 654, 679 (2003) (Breyer, J., dissenting from the dismissal of the writ of certiorari).
[xxvii] See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 343, 341-43 (1995).
[xxviii] Id. at 357.
[xxix] 358 F.3d 223 (2d Cir. 2004).
[xxx] 347 F. Supp. 2d 868 (E.D. Cal. 2004).
[xxxi] 680 N.W.2d 915 (Mich. Ct. App. 2004).
[xxxii] 267 F. Supp. 2d 559 (E.D. La. 2003).
[xxxiii] 53 F. Supp. 2d 464 (D.D.C. 1999).