DISTRICT COURT, CITY AND COUNTY OF

DENVER, COLORADO
1437 Bannock Street, Room 256
Denver, CO 80202
______________________________________________
Plaintiffs: COLORADO REPUBLICAN PARTY

v.

Defendant: SCOTT GESSLER, in his official capacity
as Colorado Secretary of State

and

Intervenor Defendant: Colorado Ethics Watch
______________________________________________
Attorneys for Plaintiff Colorado Republican Party:

Richard A. Westfall, No. 15295
Allan L. Hale, No. 14885
Peter J. Krumholz, No. 27741
Hale Westfall, LLP
1600 Stout St., Suite 500
Denver, CO 80202
Phone 720-904-6010
Fax 720-904-6020
rwestfall@halewestfall.com







COURT USE ONLY



Case Number: 2014CV031851

Div./Courtroom: 409
REPLY IN SUPPORT MOTION FOR SUMMARY JUDGMENT

Plaintiff Colorado Republican Party (CRP or the Party) hereby files this Reply in
Support of Motion for Summary Judgment.
INTRODUCTION
Colorado Ethics Watch (CEW) argues that the Party should seek a legislative change
rather than pursue this litigation. There is no need for any legislative changes, however, because
the existing Colorado constitutional and statutory provisions allow the Colorado Republican
2

Party (and indeed any other political party in Colorado) to establish an independent expenditure
committee (IEC) to accept unlimited amounts from any permissible source for the purpose of
making expenditures independent of any candidate or candidate committee. Tellingly, CEWs
response fails to engage with the Partys careful analysis of the relevant constitutional and
statutory provisions, and instead asserts that those provisions cannot possibly mean precisely
what they say. The Secretary of State, in its advisory opinion on this very issue,
1
rejected CEWs
assertion, and this Court should reject it as well.
FACTS
CEW has stipulated to virtually all of the undisputed facts set forth in CRPs Summary
Judgment Motion. Notably, CEW stipulates that even before the IECs adoption of the Standing
Rules, the activities of the IEC and Chairman Ryan Calls interactions with the IEC were
consistent with the requirements of the Standing Rules.
In addition to the Partys undisputed facts, CEW added two additional paragraphs of
undisputed facts. First, CEW added the facts concerning the Partys formation and registration of
its former independent expenditure committee, which accepted contributions, subject to party
limits, for use in the 2012 election cycle. These facts were taken from the Partys complaint, and
they are undisputed. The Party does not agree, however, that the facts concerning the Partys
former IEC are material or relevant for purposes of its Motion for Summary Judgment.

1
See Final Agency Decision, attached as Ex. C. The Secretary of State declined to issue
declaratory relief as the Party had requested, but nonetheless proceeded to issue a non-binding
advisory opinion agreeing with the Partys position. As the Secretary States decision notes, an
advisory opinion is not binding and has no precedential value, but it may offer persuasive
evidence where, as here, no precedent exists.
3

Second, CEW sets forth facts concerning contributions its current IEC has received from
individuals and at least one corporation. CEW asserts that these contributions were in excess of
the contribution limits for political parties. However, as discussed below and in the Partys
Motion for Summary Judgment, the contribution limits for political party committees are
inapplicable to independent expenditure committees.
ARGUMENT
I. THE IECS INDEPENDENT EXPENDITURES WILL NOT BE COORDINATED
WITH THE PARTY OR ANY CANDIDATE COMMITTEE

CEWs argument depends entirely on its insistence that the IECs activities will be
coordinated with the Party or with candidates affiliated with the Party. That simply is not the
case. CEWs assertion is based on a misreading of the regulation defining coordination for
purposes of Colorados campaign finance laws. In addition, CEW largely ignores the Standing
Rules that have been adopted by the management board of the IEC, and that operate to eliminate
any possibility of coordination between the Party and the independent expenditures of the IEC.
The regulations defining coordination provide that expenditures are deemed to have been
coordinated with a candidate committee or political party if:
A person makes an expenditure or engages in spending at the request, suggestion,
or direction of, in consultation with, or under the control of that candidate
committee or political party.

8 Colo. Code Regs. 1505-6, Rule 1.4. CEW implicitly concedes that the Standing Rules
prevent a candidate committee, the Party, or any of the Partys agents or officers from making a
request for, or suggestion of, an expenditure by the IEC. Similarly, CEW also apparently
concedes that the Standing Rules preclude the IEC from making any expenditure at the
4

direction of or in consultation with a candidate committee, the Party, or any of the Partys
agents or officers.
The only phrase left in Rule 1.4 for CEW to seize upon is the phrase under the control
of. CEW argues that the IEC is under the control of the Party because Chairman Ryan Call
makes the initial appointments of the executive director and the independent management
committee and can remove IEC board members.
2
This completely misses the point of the phrase.
The Party necessarily has certain very limited control over certain structural aspects of the IEC,
but the Standing Rules eliminate the ability of the Party to have any control over the IECs
activities including and especially its expenditures, which is what Rule 1.4 is designed to
address. Because the Party has no control over the activities of the IEC, including its plans,
projects, activities or expenditures, see Standing Rules, 5, there can be no coordination within
the meaning of Rule 1.4.
The provisions of the Standing Rules that ensure that the CRP exercises no control over
the activities of the IEC include the following:
No officer, staff member, or agent of the CRP may have any involvement in the
management or development of any of the IECs plans, projects, activities, or
expenditures. Standing Rules, 5.

No officer or agent of any political party committee affiliated with the CRP may make
any requests or suggestions to the IEC concerning its activities. Nor may they consult
with or provide direction concerning any aspect of the IECs electioneering
communications. Id., 11.


2
Of course, such removal may only be for cause, such as fraud or malfeasance and even then,
only upon the recommendation of a majority of the remaining members of the IEC management
board. In other words, Chairman Calls authority to remove board members is limited only to
circumstances in which the IECs management board independently recommends it. Standing
Rules, 3.

5

Such provisions prevent the Party from exercising control over the IECs activities and
expenditures. To further ensure independence and prevent any other type of coordination, the
Standing Rules also place restrictions on the IEC management board and executive director:
Neither an IEC board member nor the executive director may hold any position within
the CRP, nor serve as a delegate in any Republican assembly or convention, nor
participate on the campaign committee of any candidate for public office who will benefit
from the independent expenditures made by the IEC. Id., 6, 7, 8.

Neither an IEC board member nor the executive director may solicit any non-public
information from any candidate or candidate committee concerning that candidates
campaign strategy, plans, projects, activities, or needs. Id., 10.

Neither an IEC board member nor the executive director may solicit or accept direction
from any candidate or candidate committee concerning the development, creation,
production, or dissemination of any independent expenditure or electioneering
communication paid for the by IEC. Id.

These structural protections are more than sufficient to avoid coordination as that term is
defined in Rule 1.4, and CEWs ipse dixit to the contrary is simply wrong.
Because CEWs rhetorical insistence that this just has to be coordination is wrong, the
rest of its argument falls apart. See, e.g., CEW Response, at 7 (Because the [CRPs independent
expenditure committee] is controlled by, and coordinated with, the CRP, [it] is subject to these
political party contribution limitations and source prohibitions in Article XXVIII.). As further
discussed below and in CRPs Motion for Summary Judgment, the political party contribution
limits are not applicable to an IEC.

6

II. AN INDEPENDENT EXPENDITURE COMMITTEE IS NOT A POLITICAL
PARTY AND IS NOT SUBJECT TO CONTRIBUTION LIMITS OR SOURCE
PROHIBITIONS

CEW acknowledges that a political partys IEC
3
may make unlimited independent
expenditures, but it argues at length that Colorados campaign finance regime cannot possibly
allow a political partys IEC to accept unlimited contributions from any permissible source.
CEWs argument, however, cannot overcome the plain language of Article XXVIII and the Fair
Campaign Practices Act (FCPA).
As CRP explained in its Motion for Summary Judgment, the relevant language shows
that:
(1) the section of Article XXVIII that imposes contribution limits pointedly omits
independent expenditure committees;

(2) independent expenditure committees are not political committees subject to
the $550 limit of the FCPA;

(3) a party-sponsored independent expenditure committee is not a political
party within the meaning of Article XXVIII
4
;

(4) the FCPA and C.R.S. 1-45-107.5(3)(a) provide that any person may
sponsor an independent expenditure committee and may accept unlimited
donations for the purpose of making independent expenditures; and

(5) the FCPA and Art. XXVIII, 2(11) specifically define person to include
any natural person, partnership, committee, association, corporation, labor

3
CEW insists on calling them Super PACS, a phrase that appears nowhere in Colorado law.
Perhaps CEW does so in the misguided hope that it will sound more ominous and scary to this
Court. In any case, the Party will continue to use the phrase independent expenditure
committee or IEC, which is the phrase the General Assembly chose to employ when it
enacted the statutory regime upon which the Party principally relies.
4
As to this point, the Partys Motion explained that an independent expenditure committee is not
a political party within the meaning of Article XXVIII because an IEC is not an affiliated party
organization that nominate[s] candidates at any level, whether state, county, or district levels.
CEW made absolutely no attempt to respond to this analysis.
7

organization, political party, or other organization or group of persons.
(Emphasis added); see C.R.S. 1-45-103(13).

Taken together, these provisions lead inescapably to the conclusion that Colorados existing
campaign finance regime does, in fact, permit a political party-sponsored IEC to receive
unlimited contributions from any permissible source, and to make unlimited independent
expenditures. The Secretary of State agrees: Under Colorado law, a political party may form an
IEC for the purpose of making independent expenditures and that committee may raise funds in
any amount from any permissible source. Final Agency Decision at 6. CEWs rhetoric to the
contrary is based not on what the constitutional and statutory provisions say, but what CEW
wishes they said. Stripped of any valid argument based on the language of the provisions, CEW
resorts to shrill labels like nonsensical the kind of words reserved for when ones arguments
lack substance.
Because a political party-sponsored IEC is not a political party within the meaning of
Article XXVIII, CEWs other arguments necessarily fail. For example, the Partys motion
explained that Section 3(4) of Article XXVIII formerly provided that corporations and labor
organizations may not make contributions to a candidate committee or political party but it did
not prohibit them from making contributions to independent expenditure committees. In
response, CEW objects that corporations and labor unions are still not allowed to make direct
contributions to political parties. Because independent expenditure committees are not political
parties, however, CEWs objection is inapposite. See Final Agency Decision at 7 (While
Colorado law provides source restrictions and contribution limits for political parties, there are
no source restrictions or contribution limits for IECs.).
8

CEW spends very little time addressing the Partys careful analysis of the language, and
instead insists that this Court must look to existing law at the time the citizen initiative was
adopted in order to properly interpret its provisions. This is incorrect. The case cited by CEW,
Colorado Ethics Watch v. Senate Majority Fund, 269 P.3d 1248 (Colo. 2012), actually states that
in determining voters intent, we give words their ordinary and popular meaning, and if the
language of a constitutional amendment is clear and unambiguous, then it must be enforced as
written. Id. at 1254 (emphasis added). The Court in Senate Majority Fund indicated that it
should look to existing law at the time of the amendment only if the language is ambiguous.
Even CEW does not make the claim that Article XXVIII and the relevant provisions of the
FCPA are ambiguous. Accordingly, CEWs recitation of the state of federal law at the time of
the citizen initiative is irrelevant.
5

Additionally, having been forced to find some way around the actual language of
Colorados campaign finance provisions, CEW ends up getting the entire First Amendment
analysis backwards. CEW accuses the Party of attempt[ing] to read permission for its desired
activities where none is given. CEW Response at 9. That is not how First Amendment analysis
works. Fortunately, the freedom of expression and the freedom of association do not depend
upon permission first being given from the State; rather, if the State wishes to proscribe First
Amendment activity, it must do so expressly and narrowly. See NAACP v. Button, 371 U.S. 415,
433 (1963) (Because First Amendment freedoms need breathing space to survive, government
may regulate in the area only with narrow specificity.); cf. Citizens United v. Federal Election

5
CEW urges earlier case law to support its argument that the only reasonable interpretation of
Colorado constitutional campaign finance provisions is that voters intended to allow separate
bank accounts otherwise subject to source and amount restrictions. Deriving such intent is
nothing but pure speculation on CEWs part.
9

Com'n, 558 U.S. 310, 324 (2010) (The First Amendment does not permit laws that force
speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek
declaratory rulings before discussing the most salient political issues of our day.). As CEW
seems to concede, Colorado has not affirmatively proscribed the right of political parties (as
opposed to all other groups) to accept unlimited contributions for the purpose of independent
expenditures.
6

III. COLORADO CAMPAIGN FINANCE LAW TREATS POLITICAL PARTIES IN
THE SAME WAY IT TREATS ALL OTHER PERSONS AND GROUPS

CEW spends much of its response brief asserting that political parties are different from
outside groups and therefore treated differently for purposes of contribution limits. That assertion
is belied by the Colorado Constitution. As CRP has already pointed out in its Motion for
Summary Judgment, the Colorado Constitution provides at least two examples in which certain
committees of a political party namely, small donor committees and political committees are

6
CEW cites Republican Natl Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010), and Rufer v.
FEC, 2014 WL 4076053 (D.D.C. Aug. 19, 2014), as authority for the proposition that
contribution limitations applied to political parties are constitutional under the First Amendment.
CEWs reliance upon these authorities does not get CEW where it needs or wants to go, for at
least two reasons. First, CRPs complaint for declaratory relief is based upon the plain language
of Colorados Constitution and Fair Campaign Practices Act, not a First Amendment
challenge. Second, the First-Amendment-protected activities that CRP asserts here (that have not
been expressly prohibited by any state law), have not been conclusively rejected by the federal
courts. In Rufer, the district court merely denied a preliminary injunction, but acknowledged the
U.S. Supreme Court has not confronted this issue, and concluded the question must be addressed
in the first instance by the D.C. Circuit en banc. See 2014 WL 4076053, at *5-6. As for RNC v.
FEC, the case rejected on First Amendment grounds federal restrictions on contributions and
activities of the national political parties themselves and their officers. Independent expenditure
efforts expressly subject to non-coordination requirements at issue here were not considered
in that case.

10

treated exactly the same as other outside groups who have their own sponsored small donor or
political committees.
In particular, Section 2(12)(b) of Article XXVIII states that a political committee does
not include a political party, and that all such committees are subject to individual and corporate
contribution limits of $550 per election cycle. Similarly, Section 2(14)(b) states that a small
donor committee does not include a political party and that any such committee is subject to
individual contribution limits of $50 per year per individual. Notably, these contribution limits
are over and above the $3,400 contribution limit applicable to political parties and, in the case of
a political committee sponsored by a political party, contributions may also be from corporations
that cannot contribute to the political party itself. In other words, political parties may establish
such committees and may receive contributions over and above the $3,400 limit and source
prohibitions applicable to political parties themselves. This is exactly how the law treats any
other small donor committee or political committee, established, financed, maintained, or
controlled by any other person, group of persons, or entity, such as a corporation, labor
organization, or any other group.
Accordingly, the Colorado Constitution treats the regulated political finance committees
and separate segregated funds of the political parties separately from the political parties
themselves the same as for any other group or entity. As discussed above and in CRPs
Summary Judgment Motion, the clear import of the relevant provisions is that for purposes of
11

IECs, political parties are also treated the same as any other group or entity, and the IEC stands
on its own, with its own registration and disclosure obligations.
7

CONCLUSION

For the reasons set forth in this brief and in the Partys Motion for Summary Judgment,
the Party respectfully submits that the relevant legal provisions and the stipulated facts in this
case all point to one conclusion: that an independent expenditure committee established by a
political party may raise funds in any amounts from any permissible source, so long as the
expenditures are truly independent and not coordinated with any candidate or candidate
committee.
Dated this 2d day of September, 2014.

HALE WESTFALL, LLP

By :s/Richard A. Westfall
Richard A. Westfall, Reg. No. 15295

Attorneys for Colorado Republican Party






7
CEW states that [o]ur campaign finance system requires disclosures by independent political
actors, outside of any political party, that raise and spend money to influence Colorado state
elections. CEW Response at 6. The Party agrees. The IEC complies with all disclosure laws, as
evidenced by Exhibit 1 to CEWs brief.
12

CERTIFICATE OF SERVICE

I hereby certify that on this 2d day of September, 2014, a true and correct copy of the
foregoing pleading was served via ICCES on the following:

Matthew D. Grove
Sueanna Johnson
Colorado Attorney Generals Office
State Services Section
1300 Broadway, 6th Floor
Denver, CO 80203

Luis Toro
Margaret Perl
Colorado Ethics Watch
1630 Welton St., Suite 415
Denver, CO 80202

s/Peter Krumholz
Peter Krumhoz