Court of Appeals SOS Answer-Reply Brief

COLORADO COURT OF APPEALS 2 East 14th Avenue Denver, CO 80203 District Court, City and County of Denver Honorable J. Eric Elliff, Judge Case No. 2012 CV 2133 (consolidated with 2012 CV 2153) Defendant/Appellant/Cross-Appellee: SCOTT GESSLER, in his official capacity as Secretary of State for the State of Colorado, v. Plaintiffs/Appellees/Cross-Appellants: COLORADO ETHICS WATCH and COLORADO COMMON CAUSE and Plaintiffs/Appellees: DAVID PALADINO; MICHAEL CERBO; PRO-CHOICE COLORADO PAC; PPRM BALLOT ISSUE COMMITTEE; and CITIZENS FOR INTEGRITY, INC. JOHN W. SUTHERS, Attorney General LEEANN MORRILL, First Assistant Attorney General FREDERICK R. YARGER, Assistant Solicitor General, Reg. No. 39479* MATTHEW D. GROVE, Assistant Attorney General, Reg. No. 34269* 1300 Broadway, 10th Floor Denver, Colorado 80203 Telephone: (720) 508-6551 E-Mail: [email protected]; [email protected] *Counsel of Record Answer-Reply Brief of Appellant / Cross-Appellee Colorado Secretary of State COURT USE ONLY Case No. 12 CA 1712

Certificate of Compliance This brief complies with the requirements of C.A.R. 28 and C.A.R. 32, including all formatting requirements. Specifically, I certify that The brief complies with C.A.R. 28(g) because  It contains 7,292 words. o It does not exceed 30 pages. o The brief does not comply with CAR 28(g) because it exceeds the word and/or page limit. A motion to accept the over length brief has been filed contemporaneously with the brief. The brief complies with C.A.R. 28(k) because, For the party raising the issue: It contains under a separate heading (1) a concise statement of the applicable standard of appellate review with citation to authority; and (2) a citation to the precise location in the record (R. __, p. __), not to an entire document, where the issue was raised and ruled on.  For the party responding to the issue (CROSS-APPEAL): It contains, under a separate heading, a statement of whether such party agrees with the opponent’s statements concerning the standard of review and preservation for appeal, and if not, why not. /s/ Frederick R. Yarger Frederick R. Yarger

TABLE OF CONTENTS PAGE ARGUMENT IN REPLY: Rules 1.18.2, 1.12.3, 7.2.1, 1.10, and 18.1.8(a) ....................................................................................................... 1  I.  Standard of Review. .......................................................................... 1  A.  The Secretary did not violate C.A.R. 28(k) by trimming words from his brief—and neither did CEW and CCC. .................1  B.  The Secretary, the only official empowered to administer and enforce Colorado’s campaign finance laws, has discretion to enact rules to provide guidance to the public. ..........3  II.  Rules 1.18.2, 1.12.3, 7.2.1, 1.10, and 18.1.8(a) are valid exercises of the Secretary’s constitutional authority....................... 8  A.  Rule 1.18.2 codifies the “major purpose” requirement for political committees...........................................................................8  1.  Rule 1.18.2 is necessary to avoid regulating political committees through post-hoc litigation. ................................. 8  2.  The Secretary properly based Rule 1.18.2 on applicable judicial precedent. .................................................................. 10  3.  Despite Plaintiffs’ arguments, the major purpose test is part of Colorado’s definition of “political committee.” .......... 11  B.  Rule 1.12.3 explains how to apply the “a major purpose” requirement for issue committees..................................................13  1.  Rule 1.12.3 is an exercise of administrative discretion to fill a gap in current law. .................................................... 13  2.  Rule 1.12.3 is based on a careful consideration of the record and the Secretary’s discretionary authority. ............. 16  C.  Rules 7.2.1 and 1.10 clarify the definition of “political organization.” ...................................................................................19  1.  The Court—and the Secretary—must heed preexisting law in construing legislative language. ................................ 19  2.  Buckley applies to disclosure-only laws. ............................... 21  i

TABLE OF CONTENTS PAGE 3.  Rules 1.10 and 7.2.1 clarify when a political organization must report all of its activities. ....................... 23  4.  Plaintiffs’ flawed reading of Citizens United illustrates the value of the Secretary’s rules. ......................................... 25  D.  Plaintiffs’ objections to Rule 18.1.8 are based on a misreading of the rule. ....................................................................28  ANSWER TO CEW AND CCC’s CROSS-APPEAL: Rule 1.7 ................ 30  I.  Summary of Argument.................................................................... 30  II.  Standard of Review. ........................................................................ 30  III. Argument. ........................................................................................ 32  A.  Rule 1.7 is drawn directly from binding Colorado case law, as modified by U.S. Supreme Court jurisprudence. .....................32  B.  The “functional equivalent” test is still relevant to Colorado’s regulation of electioneering..........................................35  C.  Rule 1.7 is identical to its predecessor and makes no changes to Colorado law. ................................................................37  Conclusion ................................................................................................. 40 

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TABLE OF AUTHORITIES PAGE CASES  Alliance for Colo.’s Families v. Gilbert, 172 P.3d 964 (Colo. App. 2007) ................................................................................... 6, 9, 10, 11, 12 Buckley v. Valeo, 424 U.S. 1 (1976) ..................... 12, 20, 21, 22, 23, 25, 33 Center for Individual Freedom v. Van Hollen, 694 F.3d 108 (D.C. Cir. 2012) ................................................................................................. 7 Cerbo v. Protect Colo. Jobs, Inc., 240 P.3d 495 (Colo. App. 2010).... 14, 21 Citizens for Free Enter. v. Dep’t of Revenue, 649 P.2d 1054 (Colo. 1982) ....................................................................................................... 17 Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010).......................................................................... 7, 21, 25, 26, 35, 37 Colo. Citizens for Ethics in Gov’t v. Comm. For the Am. Dream, 187 P.3d 1207 (Colo. App. 2008) ....................................................... 7, 31 Colo. Ethics Watch v. Senate Majority Fund, 269 P.3d 1248 (Colo. 2012) ................................................................................................. 21, 34 Colo. Ground Water Comm’n v. Eagle Peak Farms, 919 P.2d 212 (Colo. 1996) ........................................................................................ 4, 30 Colo. League of Taxpayers, No. OS 2009-0001, at 2 n.2 (Apr. 24, 2009) ....................................................................................................... 40 Fed. Election Comm’n v. Mass. Citizens for Life, 479 U.S. 238 (1986)...................................................................................................... 11 Fed. Election Comm’n v. Wis. Right to Life, Inc. (“WRTL II”), 551 U.S. 449 (2007) .......................................................... 7, 33, 34, 35, 38, 39 Harwood v. Senate Majority Fund, LLC, 141 P.3d 962 (Colo. App. 2006) ................................................................... 32, 33, 34, 35, 36, 37, 39 In re Interrogatories, 227 P.3d 892 (Colo. 2010) ............................... 36, 37 Independence Institute v. Coffman, 209 P.3d 1130 (Colo. App. 2008) ................................................................................. 6, 11, 13, 14, 18 iii

TABLE OF AUTHORITIES PAGE Janssen v. Indus. Claim Appeals Office, 40 P.3d 1 (Colo. App. 2001) ....................................................................................................... 16 League of Women Voters of Colo. v. Davidson, 23 P.3d 1266 (Colo. App. 2001) .............................................................................................. 20 Minn. Citizens Concerned for Life v. Swanson, 692 F.3d 864 (8th Cir. 2012) ............................................................................................... 22 Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) ........................................................................................ 3 National Organization for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011) ................................................................................... 11, 12, 23 O’Quinn v. Baca, 250 P.3d 629 (Colo. App. 2010) ..................................... 2 People v. Durapau, 2012 COA 67 .............................................................. 1 People v. Lowrie, 761 P.2d 778 (Colo. 1988).............................................. 4 Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010) ..................... 18, 22 Sanger v. Dennis, 148 P.3d 404 (Colo. App 2006) ..................................... 4 Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) .............. 10 Timothy C. Wirt, M.D., P.C. v. Prout, 754 P.2d 429 (Colo. App. 1988) ....................................................................................................... 10 Vaughan v. McMinn, 945 P.2d 404 (Colo. 1997) ..................................... 19 Wine & Spirits Wholesalers of Colo., Inc. v. Colo. Dep’t of Revenue, 919 P.2d 894 (Colo. App. 1996) ............................................. 14 CONSTITUTIONS  Colo. Const. Art. XXXVII, § 3(4) .............................................................. 37 Colo. Const. Art. XXXVII, § 6(2) .............................................................. 37 Colo. Const. Art. XXVIII, § 9(1)(b) ............................................................. 3

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TABLE OF AUTHORITIES PAGE STATUTES  § 1-45-103(12), C.R.S. (2012) ...................................................................... 6 § 1-45-103(12)(b), C.R.S (2012). ......................................................... 14, 15 § 1-45-103.7(2.5), C.R.S. (2012) ................................................................ 25 § 1-45-108(1)(a)(I), C.R.S. (2012) ....................................................... 12, 24 § 1-45-108(1)(a)(III), C.R.S. (2012)..................................................... 24, 27 § 1-45-108.5(1), C.R.S. (2012) ................................................................... 25 RULES  C.A.R. 28(k) ............................................................................................. 1, 2 Rule 1.7 ............................................................................................. passim Rule 1.10 ................................................................................. 19, 23, 25, 40 Rule 1.12.3 ........................................................................................ passim Rule 1.18.2 ........................................................................................ passim Rule 7.2.1 ................................................................................ 19, 22, 25, 40 Rule 9.4 ................................................................................... 30, 34, 37, 39 Rule 18.1.8(a) ............................................................................................ 40 OTHER AUTHORITIES  Webster’s Third New International Dictionary (1986) ........................... 32

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ARGUMENT IN REPLY: Rules 1.18.2, 1.12.3, 7.2.1, 1.10, and 18.1.8(a) I. Standard of Review. A. The Secretary did not violate C.A.R. 28(k) by trimming words from his brief—and neither did CEW and CCC.

The Paladino Plaintiffs1 argue that the Opening Brief violates C.A.R. 28(k) and should be struck because it sets forth the standard of review under a single heading rather than five duplicative headings (i.e., one for each rule). (Paladino Ans. Br. at 4–5.) This argument is a distraction. Had the Secretary’s Opening Brief been procedurally deficient, this Court would have struck the brief on its own and “directed [the Secretary] to file a complying brief.” See People v. Durapau, 2012 COA 67, ¶ 45. In any event, each rule at issue in this appeal is governed by the same administrative review standards, and each issue in this appeal There are two groups of plaintiffs in this case: (1) Colorado Ethics Watch and Colorado Common Cause (“CEW and CCC”) and (2) the group that includes David Paladino (the “Paladino Plaintiffs”).
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was resolved in a single order by the district court. Only one standardof-review heading was necessary. CEW and CCC followed that very approach in their own Opening-Answer brief: they included only a single standard-of-review section for the five rules at issue in the appeal—presumably in the interest of brevity and concision—and they included a separate standard-of-review section for the portion of their brief related to the cross-appeal. (CEW/CCC Op.-Ans. Br. at 13–15, 31.) Yet, transparently, the Paladino Plaintiffs do not argue that the brief filed by CEW and CCC should be struck. The Secretary is aware of the purposes of C.A.R. 28(k). For convenience, he attached a full copy of the district court’s order to the Opening Brief as well as an addendum containing the full text of all of the challenged rules, ensuring that this Court would not have to “search [the] record[] to determine whether (and, if so, how) issues had been raised and resolved in the trial court[].” O’Quinn v. Baca, 250 P.3d 629 (Colo. App. 2010). The Colorado Appellate Rules are meant to facilitate efficient case administration; the Paladino Plaintiffs’ selective quibbling over collateral issues serves the opposite purpose. 2

B.

The Secretary, the only official empowered to administer and enforce Colorado’s campaign finance laws, has discretion to enact rules to provide guidance to the public.

CEW and CCC assert that “the Secretary is not a judge . . . , nor a legislative body . . . . He is merely an administrator of the laws enacted by the General Assembly or the People . . . .” CEW/CCC Op.-Ans. Br. at 13. The Secretary has never argued otherwise. But the Secretary’s role as “administrator of the laws” is crucial, no matter how hard Plaintiffs try to minimize it. He is the only official in Colorado authorized to “promulgate rules” to “administer and enforce” the state’s campaign finance laws, and he has a constitutional duty to do so. Colo. Const. Art. XXVIII, § 9(1)(b). Like every public official with rulemaking authority, the Secretary must interpret the law, often in light of judicial decisions, and provide guidance to the public about how the law may be implemented. This is the very essence of “administration.” See, e.g., Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980–82 (2005) (explaining that an agency’s role is to “fill . . . statutory gap[s] in [a] 3

reasonable fashion,” which entails making “interpretations” and “constructions” of statutory language). It follows that the Secretary must have discretion to promulgate campaign finance regulations, as long as those regulations do not “add [to], [] modify, and [] conflict with” governing law. Sanger v. Dennis, 148 P.3d 404, 413 (Colo. App 2006). Although Plaintiffs appear to contend otherwise, there are many ways to implement a statute or constitutional provision. See People v. Lowrie, 761 P.2d 778, 781 (Colo. 1988) (“[I]t will often be impracticable for the General Assembly to fix rigid standards . . . without destroying the flexibility necessary to effectuate obvious legislative goals . . . .”). Plaintiffs may disagree with the Secretary’s rules or his legal interpretations, but if the Secretary’s rules are “permissible”—that is, if they are consistent with governing law, including judicial opinions— they must be upheld against Plaintiffs’ challenges. See Colo. Ground Water Comm’n v. Eagle Peak Farms, 919 P.2d 212, 217 (Colo. 1996) (explaining that a plaintiff bears the burden of demonstrating that a rule-maker “violated constitutional or statutory law”).

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The Paladino Plaintiffs, in an attempt to deflect their burden to rebut the presumed validity of the Secretary’s rules, distort the Secretary’s rulemaking efforts. They claim the Secretary “is arguing that validly enacted statutes and validly adopted constitutional amendments are unconstitutional.” (Paladino Ans. Br. at 9–10.) They further assert that the Secretary must “establish[] that constitutional and statutory [provisions are] unconstitutional beyond a reasonable doubt.” (Id.) The Secretary, however, is not arguing that various provisions of Colorado’s campaign finance laws are “unconstitutional.” His rules provide guidance as to how valid laws may be validly implemented, consistent with judicial precedent. Courts routinely explain how to apply what Plaintiffs call “validly enacted statutes and validly adopted constitutional amendments.” (Id.) In doing so, courts do not declare the laws to be “invalid,” as the Paladino Plaintiffs assume—even if the resulting judicial opinions narrow the circumstances in which the laws may be applied. For example, when this Court held that the major purpose test must be applied to political committees in Colorado, it was 5

not “invalidating” a Colorado constitutional provision but was explaining how the provision—which was necessarily valid—could be enforced. Alliance for Colo.’s Families v. Gilbert, 172 P.3d 964, 972–73 (Colo. App. 2007). Even the Paladino Plaintiffs admit that “guidance” is sometimes necessary to “clarif[y] the law . . . in light of” judicial decisions. (Paladino Ans. Br. at 14–15.) They explain that the General Assembly amended C.R.S. § 1-45-103(12), the statute that defines issue committees, to comply with this court’s decision in Independence Institute v. Coffman, 209 P.3d 1130 (Colo. App. 2008). They further acknowledge that this legislative amendment did not “make a substantive change” to the statute. (Paladino Ans. Br. at 15.) Yet, in the view of the Paladino Plaintiffs, the Secretary’s own attempts to clarify the law in light of judicial precedent equates to “arguing that validly enacted statutes and validly adopted constitutional amendments are unconstitutional.” (Id. at 9.) This view bucks common sense. As the D.C. Circuit recently observed, significant developments in case law often create the occasion for rulemaking. Center for Individual Freedom v. 6

Van Hollen, 694 F.3d 108, 110 (D.C. Cir. 2012) (remanding the case for rulemaking and noting that “[t]he statute is anything but clear, especially when viewed in the light of the Supreme Court’s decisions in Citizens United . . . and WRTL II”). An ostrich-like approach that requires public officials to ignore case law serves no purpose but to confuse members of the public who consult administrative rules to answer legal questions. Aside from their disagreement with the rules they have challenged, Plaintiffs provide no reason why the Secretary or other officials, in exercising their constitutional duty to promulgate administrative rules, must ignore judicial precedent. Nor can they explain why the Secretary is prevented from clarifying the law by answering specific questions not answered by existing statutes and constitutional provisions. Plaintiffs’ disagreement with the Secretary’s rules does not relieve them of the burden to prove that each of the challenged rules is invalid beyond a reasonable doubt. Colo. Citizens for Ethics in Gov’t v. Comm. For the Am. Dream, 187 P.3d 1207, 1217 (Colo. App. 2008). 7

II.

Rules 1.18.2, 1.12.3, 7.2.1, 1.10, and 18.1.8(a) are valid exercises of the Secretary’s constitutional authority. A. Rule 1.18.2 codifies the “major purpose” requirement for political committees. 1. Rule 1.18.2 is necessary to avoid regulating political committees through post-hoc litigation.

Both Plaintiffs and the district court recognized below that under Colorado law, a group cannot be regulated as a “political committee” unless it meets “the major purpose” requirement. (See E-File R. at 240, 391.2) But as it stands now, with Rule 1.18.2 invalidated, the only way for an entity to determine whether this requirement has been met is through litigation. The entity will not know with certainty whether it is subject to regulation as a political committee until it has been sued, appears before an ALJ, receives a decision, and perhaps endures an “E-File R.” refers to documents compiled in the compact disk e-filed by the district court clerk (for these citations, page numbers refer to PDF pages 1–508). “Admin. R. Vol. 1” refers to the eight documents in the official rulemaking record. “Admin. R. Vol. 2” refers to written comments submitted by the public as part of the rulemaking hearing in December 2011. “Tr.” refers to pages of the transcript of the rulemaking hearing.
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appeal. See, e.g., Alliance for Colo.’s Families v. Gilbert, 172 P.3d 964 (Colo. App. 2007). Plaintiffs apparently prefer the existing regime of regulationthrough-litigation, pointing to cases in which “application of the existing definition [of political committee] . . . have not violated the First Amendment.” (Paladino Ans. Br. at 27.) But Plaintiffs’ preferred litigation-based regime creates serious problems: well-funded members of the political community can hire counsel to advise them and defend against (or prosecute) lawsuits involving the major purpose requirement. Meanwhile, unsophisticated parties with fewer resources must, without the aid of counsel, digest not only constitutional provisions, statutes, and administrative rules, but forty years of judicial precedent as well. As the record demonstrates, some of these parties will be discouraged from exercising their First Amendment rights. (See Tr. at 57:110–16; Admin. R. Vol. 2, Tab 14 at 4.) Rule 1.18.2 codifies the “major purpose” test in a way that addresses the imbalance between sophisticated political groups and small grassroots organizations.

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2.

The Secretary properly based Rule 1.18.2 on applicable judicial precedent.

It cannot be true, as Plaintiffs argue, that because “[t]he voters did not include a ‘major purpose’ requirement” in the constitutional definition of “political committee,” the Secretary is prevented from recognizing the requirement through rulemaking. (CEW and CCC Op.Ans. Br. at 27; see also Paladino Ans. Br. at 25–26.) If this were so, this Court could not have instructed the ALJ in Alliance for Colorado’s Families to apply the major purpose test. Instead, the Court would have been required to declare the definition of “political committee” unenforceable. Courts, like administrative officials, cannot add new requirements to existing legal definitions. Cf. Timothy C. Wirt, M.D., P.C. v. Prout, 754 P.2d 429, 430 (Colo. App. 1988) (refusing to “judicially amend a clearly stated . . . legislative policy . . . and impermissibly invade the province of the General Assembly”); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1167—68 (10th Cir. 1999) (refusing to “judicially amend” a statutory definition and holding “our duty is to enforce Congress’ definition”). 10

Yet Plaintiffs assert that Rule 1.18.2 is “arbitrary and capricious” because its two criteria are based on guidance from the Supreme Court and the Tenth Circuit. (Paladino Ans. Br. at 30 (citing Fed. Election Comm’n v. Mass. Citizens for Life, 479 U.S. 238 (1986)); CEW and CCC Op.-Ans. Br. at 26–27 (citing Colo. Right to Life Comm. v. Coffman, 498 F.3d 1137 (10th Cir. 2007)).) The “the major purpose” requirement is an acknowledged fact in Colorado, and, as Plaintiffs’ recognize, “[t]he issue is how the ‘political committee’ definition is applied without violating the Constitution.” (Paladino Ans. Br. at 28.) It was not “arbitrary and capricious” for the Secretary to explain the “major purpose” test using judicial guidance that this Court itself has described as “relevant authority.” Alliance for Colo.’s Families, 172 P. 3d at 973 (citing Colo. Right to Life Comm. v. Coffman). 3. Despite Plaintiffs’ arguments, the major purpose test is part of Colorado’s definition of “political committee.”

In a final attempt to invalidate Rule 1.18.2, the Paladino Plaintiffs misread National Organization for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011), suggesting that because the First Circuit upheld a Maine 11

statute regulating “non-major purpose political committees,” Rule 1.18.2 is necessarily invalid. (Paladino Ans. Br. at 26.) That argument is wrong for at least two reasons. First, it defies this Court’s holding that the major purpose test is “required by Buckley” and is, unambiguously, a part of Colorado law. See Alliance for Colo.’s Families, 172 P.3d at 972. Second, the “non-major purpose” provisions of the law at issue in National Organization for Marriage were “tailored to Maine’s informational interest, requiring disclosure only of the candidates or campaigns the non-major-purpose PAC supports or opposes, its expenditures made to support or oppose the same, and identifying information for any contributors who have given more than $50 to the PAC to support or oppose a candidate or campaign.” 649 F.3d at 58 (emphasis added). The same is not true in Colorado, where political committees are required to report all donations, all expenditures, and all “obligations [they] enter[] into.” C.R.S. § 1-48-108(1)(a)(I) (emphasis added). The Paladino Plaintiffs’ attempt to equate Colorado law with another state’s vastly different regulatory scheme underscores their 12

misunderstanding of the major purpose test and Rule 1.18.2. Because the rule simply codifies an existing requirement of Colorado law and clarifies how that requirement is met, it was within the Secretary’s discretion to promulgate. B. Rule 1.12.3 explains how to apply the “a major purpose” requirement for issue committees. 1. Rule 1.12.3 is an exercise of administrative discretion to fill a gap in current law.

Plaintiffs’ arguments against Rule 1.12.3 reveal that they misunderstand the circumstances under which administrative officials may promulgate rules. In Plaintiffs’ view—which echoes the district court’s faulty analysis below (see Sec’y Op. Br. at 36–39)—a rule is valid only if the statute under which it was promulgated is either unconstitutional or has already spoken to the precise question the rule answers. This makes no sense—if Plaintiffs are correct, a rule is valid only if it is unenforceable or unnecessary. Plaintiffs argue that two court decisions—Independence Institute v. Coffman, 209 P.3d 1130 (Colo. App. 2009) and Cerbo v. Protect Colo. 13

Jobs, Inc., 240 P.3d 495 (Colo. App. 2010)—foreclose Rule 1.12.3 because in both of them, this Court concluded that the phrase “a major purpose” is not unconstitutionally ambiguous, vague, or overbroad. (See Paladino Ans. Br. at 16, 18; CEW and CCC Op.-Ans. Br. at 24.) The fact that the phrase “a major purpose” is constitutionally enforceable, however, sheds no light on the real question: whether the definition of “a major purpose” leaves any gap to be filled through rulemaking. Plaintiffs do not dispute that when a relevant statute or constitutional provision has not “spoken on [a] precise question,” an administrator is empowered to make rules. Wine & Spirits Wholesalers of Colo., Inc. v. Colo. Dep’t of Revenue, 919 P.2d 894, 989–99 (Colo. App. 1996). Here, for example, the statutory definition of “a major purpose” provides a set of criteria but fails to explain how those criteria apply. C.R.S. § 1-45-103(12)(b). The Secretary promulgated Rule 1.12.3 to fill this gap. In arguing that Independence Institute and Cerbo left no gap to fill, Plaintiffs confuse the distinction between an unconstitutional, unenforceable law and one that is subject to rulemaking. This Court,

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however, did not confuse that distinction. Neither Independence Institute nor Cerbo forecloses Rule 1.12.3. Plaintiffs also assert that because “[t]he General Assembly . . . did not . . . use the 30% figure adopted by the Secretary,” it “left no room for the Secretary’s 30% idea.” (Paladino Ans. Br. at 14–15; see also CEW and CCC Op.-Ans. Br. at 25.) Plaintiffs believe that, under § 1-45103(12)(b), “a case-specific inquiry into an organization’s pattern of conduct [is] the appropriate test.” (CEW and CCC Op.-Ans. Br. at 25.) The statutory definition of “a major purpose,” however, says nothing about a “case-specific inquiry”—just as it does not mandate the brightline approach of Rule 1.12.3. See § 1-45-103(12)(b). This silence does not mean that only one option is “the appropriate test.” (CEW and CCC Op.Ans. Br. at 25.) Instead, it means either approach is permissible. Moreover, Plaintiffs’ view—that because § 1-45-103(12)(b) does not specify a bright-line test, this type of test must be prohibited—turns administrative rulemaking on its head. The lack of specificity in the statute is what empowers the Secretary to make rules; the legislative

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silence does not preclude him from doing so. See Janssen v. Indus. Claim Appeals Office, 40 P.3d 1, 4 (Colo. App. 2001). 2. Rule 1.12.3 is based on a careful consideration of the record and the Secretary’s discretionary authority.

Plaintiffs further argue that the 30% threshold of Rule 1.12.3 is “arbitrary” and “was adopted with no factual basis in the rulemaking record.” (CEW and CCC Op.-Ans. Br. at 26; see also Paladino Ans. Br. at 19.) This is simply untrue—the record demonstrates the need for an easy-to-apply test explaining whether an entity satisfies the “a major purpose” requirement. For example:  One written comment stated, “[t]he adoption of a 30-percentexpenditure threshold . . . provides another much-needed bright-line test. Colorado’s ‘a major purpose’ language . . . has been a source of confusion and an object of litigation.” (Admin. R. Vol. 2, Tab 39 at 2–3.)  Another commenter, who had unwittingly formed an issue committee in a previous election cycle, testified, “I do like the idea that there’s a clear rule here. There hasn’t been a test at all. Who knows what a major purpose would mean? . . . [I]f you decide not to file, you’re running the risk that you’re going to be dragged into court . . . . And you just don’t . . . know whether you’re complying with the rules or not. [Rule 1.12.3] would at least have a bright-line test . . . .” (Tr. at 114:4–13.)

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 Another commenter testified that under the old rules, “the average citizen would have to hire an attorney . . . . The result is that citizen activists are going to shut up, go home, do what they’re told, and not have a voice in the system. . . . That is why the rules matter.” (Tr. at 56:19–57:4.)  The record also demonstrates that the Secretary considered other options for clarifying “a major purpose,” including, as an opponent of Rule 1.12.3 suggested, a dollar limit rather than a percentage-based threshold. (Tr. at 86:12–19, 88:5–7.) In evaluating this record, the Court must “display sensitivity to the range and nature of determinations that must be made by an administrative agency.” Citizens for Free Enter. v. Dep’t of Revenue, 649 P.2d 1054, 1064 (Colo. 1982). It “must be mindful that [its] task is not to substitute [its] judgment for that of the administrative agency; rather, it is to assure that the regulation is the product of reasoned decisionmaking fairly defensible in light of the material before the agency and its latitude in the resolution of policy matters.” Id. at 1065. Here, whether to employ a bright-line test or the “case-specific inquiry” that Plaintiffs prefer is a matter that demands agency discretion. The record makes clear that the Secretary carefully considered all the testimony and written comments, and made a “reasoned decision” that this Court cannot second-guess. 17

Plaintiffs assert that the 30% line was “drawn in the wrong place” and “foster[s] non-disclosure.” (Paladino Ans. Br. at 16; see also CEW and CCC Op.-Ans. Br. at 27.) But the “a major purpose” requirement itself was designed to decrease disclosure, at least when the burdens of regulation outweigh the public’s interest in such information. That is the whole point of the “a major purpose” test: to balance the need for disclosure against the concern that not everyone who engages in protected speech must report his or her expressive activity. Independence Institute, 209 P.3d at 1139 (“[T]he electorate’s intent in adopting article XXVIII [was] to require disclosure of contributions made to entities that exist to influence election outcomes as to ballot issues, and not to require disclosure of contributions to entities that do not have such influence as a major purpose.” (emphasis added)); cf. Sampson v. Buescher, 625 F.3d 1247, 1261 (10th Cir. 2010) (“Here, the financial burden of state regulation on Plaintiffs’ freedom of association approaches or exceeds the value of their financial contributions to their political effort . . . .”). Rule 1.12.3’s 30% threshold simply makes the requirement easier to administer and understand. 18

And, as the record suggests, the rule will likely cause more groups to engage in ballot-issue advocacy, therefore increasing disclosure above the current level. If nascent issue committees are easily able to determine when they will trigger reporting requirements, they will be more likely to comply with them rather than “shut[ting] up, go[ing] home, . . . and not hav[ing] a voice in the system.” (Tr. at 56:19–57:4.) C. Rules 7.2.1 and 1.10 clarify the definition of “political organization.” 1. The Court—and the Secretary—must heed preexisting law in construing legislative language.

The Secretary’s Opening Brief explains in detail that Rules 7.2.1 and 1.10 clarify the definition of “political organization” based on existing legal requirements. (Sec’y Op. Br. at 41–47.) The General Assembly, when enacting the definition, was legislating in an area laden with years of judicial interpretation. This Court must presume the General Assembly knew of this precedent and “adopt[ed] the construction which prior judicial decisions have placed on particular language.” Vaughan v. McMinn, 945 P.2d 404, 407 (Colo. 1997). This is 19

especially true in the realm of campaign finance law. See, e.g., League of Women Voters of Colo. v. Davidson, 23 P.3d 1266, 1278 (Colo. App. 2001) (“[N]one of [the] advertisements was ‘express advocacy,’ as that term is construed and applied in Buckley [v. Valeo, 424 U.S. 1 (1976)] . . . .”). Plaintiffs trivialize this legal background, and they urge the Court to presume that the General Assembly was unaware of it or, perhaps, chose to ignore it. (See Paladino Ans. Br. at 38–41.) CEW and CCC even suggest that the General Assembly “deliberately chose to avoid the legally significant terms ‘expenditure’ or ‘express advocacy.’” (CEW and CCC Op.-Ans. Br. at 16–17.) At the same time, CEW and CCC disregard the legal significance of the terms the General Assembly did deliberately choose to use, including the phrase “influencing or attempting to influence.” That phrase, according to Buckley, is overbroad and requires a limiting construction. (See Sec’y Op. Br. at 44– 47.) And because Buckley is the “bedrock of all campaign finance political speech jurisprudence,” Colo. Ethics Watch v. Senate Majority

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Fund, 269 P.3d 1248, 1258 (Colo. 2012), the Secretary is not free to disregard it. 2. Buckley applies to disclosure-only laws.

But Plaintiffs not only ignore the law; they also misconstrue it. They assert that “the Buckley analysis is simply not relevant to Colorado’s political organization statute, which creates only disclosure obligations.” (CEW and CCC Op.-Ans. Br. at 19; see also Paladino Ans. Br. at 39.) In their view, “disclosure-only” laws do not raise the First Amendment concerns that Buckley identified. 3 The precedent, however, says otherwise. Cerbo v. Protect Colo. Jobs, Inc., 240 P.3d 495, 500 (Colo. App. 2010) (“[R]egistration and reporting requirements . . . Plaintiffs pluck a single passage from Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), to argue that “disclosureonly” laws are free from Buckley’s requirements. (CEW and CCC Op.Ans. Br. at 19–20; Paladino Ans. Br. at 39.) Citizens United, however, dealt with a specific regulatory area: electioneering communications. As the Colorado Supreme Court recognizes, “electioneering” is narrowly defined by “objective and bright-line criteria,” making broader limitations on electioneering “tolerable.” Senate Majority Fund, 269 P.3d at 1258. Outside the electioneering context, however, regulations like those governing political organizations implicate “the vagueness and overbreadth concerns from Buckley.” See id.
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implicate the First Amendment . . . .”); Sampson, 625 F.3d at 1255 (“Reporting and disclosure requirements . . . can infringe on the right of association.”). As the Eight Circuit recently recognized, “simply placing a ‘disclosure’ label on laws imposing the substantial and ongoing burdens typically reserved for PACs” does not exempt those laws from existing judicial precedent. Minn. Citizens Concerned for Life v. Swanson, 692 F.3d 864 (8th Cir. 2012). There, the court analyzed a law that “d[id] not prohibit corporate speech.” Id. at 871. Although it was a disclosure-only law, the court found it problematic under the First Amendment because it required “ongoing reporting requirements from associations not otherwise qualifying as PACs” and yet did not employ the Buckley major purpose test to determine what entities would or would not be faced with this type of regulation. Id. at 877, 871–72. For the same reasons, Rule 7.2.1 properly incorporates the “major purpose” test into Colorado’s definition of “political organization.” Another case also found a deficiency in a disclosure-only statute, but this time the issue was the problematic phrase “influencing or 22

attempting to influence.” Nat’l Org. for Marriage, 649 F.3d at 64–47. There, the First Circuit considered “pure disclosure laws” that “impose[ed] no limitation on the amount of money PACs [could] raise . . . [or] spend.” Id. at 41–42. Yet the court recognized that the laws’ use of the phrase “influencing” “present[ed] some vagueness problems.” Id. at 65. In the court’s view, Buckley dictated that the term be given a “narrow[ing] formulation” that would be “considerably more precise than the original.” Id. at 67. This is precisely what Rule 1.10 does in similarly construing the phrase “influencing or attempting to influence.” 3. Rules 1.10 and 7.2.1 clarify when a political organization must report all of its activities.

Plaintiffs claim that Rules 1.10 and 7.2.1 “collapse[] the distinction between political committees and political organizations.” (CEW and CCC Op.-Ans. Br. at 15.) And they argue that a 527 group could avoid regulation “so long as they avoid the ‘magic words’ of ‘express advocacy’ or continue to spend in other states.” (CEW and CCC Op.-Ans. Br. at 18.) But Plaintiffs ignore that Colorado law

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comprehensively regulates many types of election-related activity, often in overlapping ways. All individuals and entities—no matter what form they take— must report “each independent expenditure in excess of one-thousand dollars,” if those expenditures are not reported elsewhere. Colo. Const. Art. XXVIII, Sec. 5(1). And for every contribution of over $20 to a candidate committee, political committee, issue committee, small donor committee, or political party, a disclosure must be made that includes the name and address of the contributor. C.R.S. § 1-45-108(1)(a)(I). Any expenditure that is coordinated with a political candidate is treated as a contribution subject to these disclosure rules. Colo. Const. Art. XXVIII, § 9. Separately, any electioneering communication over $1,000 must be reported, as well as the name, address, occupation, and employer of anyone donating $250 or more to the communication. C.R.S. § 1-45108(1)(a)(III). This intricate system often blurs the lines that separate distinct campaign activity. For example, in 2010 the General Assembly was required to pass a law ensuring that independent expenditure committees would not be regulated as political committees; this law was 24

necessary because organizations could easily fall under both definitions. See C.R.S. § 1-45-103.7(2.5). Within this framework, Rules 1.10 and 7.2.1 clarify the point at which a § 527 organization must report all of its activity—both in Colorado and around the country—to the Colorado Secretary of State. In Colorado, a political organization must report “any contributions it receives” and “any spending . . . that exceeds twenty dollars.” C.R.S. § 145-108.5(1) (emphasis added). This type of regulatory regime, which imposes comprehensive reporting and disclosure requirements on everything an entity does, must comply with Buckley to ensure it is not overbroad. See Minn. Right to Life, 692 F.3d at 872 (“Minnesota has, in effect, substantially extended the reach of PAC-like regulation to all associations that ever make independent expenditures.” (emphasis in original)). 4. Plaintiffs’ flawed reading of Citizens United illustrates the value of the Secretary’s rules.

Finally, Plaintiffs resort to unfounded hyperbole in an attempt to argue that Rules 7.2.1 and 1.10 are invalid. 25

The Paladino Plaintiffs declare that “the very spending that was at the heart of Citizens United would not be disclosed under Rule 7.2.1 and 1.10. . . . [T]here would be no disclosure at all if [Hillary: The Movie] were shown in Colorado.” (Paladino Ans. Br. at 41–42.) This argument does nothing to support Plaintiffs’ objections to Rule 1.10 and 7.2.1. It merely reveals that the Paladino Plaintiffs do not understand Citizens United or Colorado’s rules regarding electioneering communications. The movie at issue in Citizens United was to be made “available through video-on-demand within 30 days of the 2008 primary elections.” 130 S. Ct. at 888. Because the movie repeatedly mentioned a political candidate by name and “urge[d] viewers to vote against Senator Clinton for President,” it was “the functional equivalent of express advocacy.” Id. at 890. With these attributes, the movie was an “electioneering communication” under Colorado’s definition (and under the federal definition), and it would therefore have been subject to various reporting and disclosure requirements. Colo. Const. Art. XXVIII § 7(a); see also Rule 1.7. Indeed, the status of the movie as “electioneering” 26

under federal law was the very reason the Supreme Court was required to answer the broader question presented in Citizens United: whether corporations have a First Amendment right to engage in political speech. Citizens United, 130 S. Ct. at 892 (As the foregoing analysis confirms, the Court cannot resolve this case on a narrower ground . . . .”) Thus, if Hillary—or, more accurately, a similar movie that disparaged a candidate for state office4—were broadcast in Colorado, the creators of the movie would be required to make various disclosures:  “the amount expended on the communication[],”  “the name and address of any person that contribut[ed] more than two hundred fifty dollars,” and  “the [donor’s] occupation and employer” if the donor was “a natural person.” C.R.S. § 1-45-108(1)(a)(III). The Paladino Plaintiffs’ exaggerations therefore fall flat. Indeed, their arguments merely illustrate why campaign finance rules like Colorado campaign finance law does not regulate electioneering related to candidates for national office.
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those at issue in this case are necessary. Even parties represented by counsel can misunderstand how campaign finance laws interact with judicial precedent. Concise, accurate rules can help clear up this sort of confusion. D. Plaintiffs’ objections to Rule 18.1.8 are based on a misreading of the rule.

CEW and CCC5 simply misread Rule 18.1.8. They claim that the rule “dispenses with any ‘good cause’ requirement and effectively waives fines in advance” and that the rule “obviate[s] the need for any particular committee to request a waiver.” (CEW and CCC Op.-Ans. Br. at 30.) This is incorrect. A person seeking a fee waiver under Rule 18.1.8 for failure to file a major contributor report must still submit a request for waiver to the Secretary under Rule 18.1.1. This is made clear by the structure of the rules: Rule 18.1.8 is a sub-rule within Rule 18.1, which is entitled, “Requests for waiver or reduction of campaign finance penalties.” (Emphasis added.) The Paladino Plaintiffs did not challenge Rule 18.1.8 in this litigation.
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Rule 18.1.8 operates identically to the other good-cause scenarios, codified in Rule 18.1.2, to which CEW and CCC do not object. Those scenarios, as CEW and CCC admit, “govern the Secretary’s exercise of discretion when presented with waiver requests that do demonstrate good cause.” (CEW and CCC Op.-Ans. Br. at 30.) Rule 18.1.8 merely describes one additional scenario under which good cause exists to excuse a campaign finance penalty. In any event, the arguments CEW and CCC make on appeal do not challenge the substance of Rule 18.1.8. Instead, their only concern appears to be that a person or group seeking a fee waiver under Rule 18.1.8 should be required to submit a request for waiver to the Secretary. Since this is already true, their objections are off the mark. Rule 18.1.8 merely implements the Secretary’s constitutional authority to “set aside or reduce the penalty [for failure to file a report] upon a showing of good cause.” Colo. Const. Art. XXVIII, § 10(2)(c). CEW and CCC have failed to identify any reason why this particular exercise of that power is improper.

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ANSWER TO CEW AND CCC’s CROSS-APPEAL: Rule 1.7 I. Summary of Argument. Rule 1.7 does nothing more than clarify the definition of a term of art—“electioneering communication”—based on case law from Colorado and the United States Supreme Court. Indeed, the substance of Rule 1.7 was in effect before the current Secretary took office: former Rule 9.4, Rule 1.7’s predecessor, is identical to the new rule. As the district court held, “[t]he new rule adds no substantive additional terms and imposes no additional restrictions over the old rule.” (E-File R. at 389.) The arguments CEW and CCC make against Rule 1.7 misread the relevant precedent and the rule itself. When weighed against the proper authorities—the decisions of this Court and the Colorado Supreme Court—Rule 1.7 must be upheld. II. Standard of Review. The Court must presume that Rule 1.7, like the other rules at issue in this case, is valid. Colo. Ground Water Comm’n v. Eagle Peak Farms, 919 P.2d 212, 217 (Colo. 1996). Plaintiffs are required to prove 30

the invalidity of the rule beyond a reasonable doubt. Colo. Citizens for Ethics in Gov’t v. Comm. for the Am. Dream, 187 P.3d 1207, 1217 (Colo. App. 2008). To do so, they bear the heavy burden of demonstrating that the rule “violated constitutional or statutory law, exceeded [the Secretary’s] authority, or lacked a basis in the record.” Eagle Peak Farms, 919 P.2d at 217. Contrary to Plaintiffs’ arguments, the district court below did not “improperly conduct[] [its] de novo review” by comparing Rule 1.7 to its predecessor. (CEW and CCC Op.-Ans. Br. at 31.) The court properly consulted recent case law from the Colorado Supreme Court, which “reaffirm[ed]” the validity of Rule 1.7 and its reliance on the U.S. Supreme Court’s decision in Wisconsin Right to Life. (E. File. R. at 389.) In recognizing that “[t]he new rule adds no substantive additional terms and imposes no additional restrictions over the old rule,” the district court was merely observing that Rule 1.7 reflects Colorado’s longstanding approach to determining whether a communication amounts to “electioneering.” (Id.) This Court, likewise, may consider this fact in reviewing the validity of the rule. 31

III. Argument. A. Rule 1.7 is drawn directly from binding Colorado case law, as modified by U.S. Supreme Court jurisprudence.

Rule 1.7 clarifies the definition of “electioneering communications” based on a line of case law that includes opinions from this Court, the Colorado Supreme Court, and the U.S. Supreme Court. In Harwood v. Senate Majority Fund, 141 P.3d 962 (Colo. App. 2006), this Court construed the term “electioneering communication” to mean “electoral advocacy.” Id. at 966. To arrive at this construction, the Court examined the intent of the voters who enacted the constitution’s “electioneering” provisions, concluding that “the electorate was concerned with regulating . . . speech designed to influence the outcome of Colorado elections.” The Court also examined the plain meaning of the term “electioneering,” finding it to mean “try[ing] to sway public opinion especially by the use of propaganda.” Id. at 965–66 (quoting Webster’s Third New International Dictionary 731 (1986)). Harwood then adopted an “intent and effect” test, holding

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that a communication is “electioneering” if the speaker “intends” or “tries” or “seeks” to influence voters. 141 P.3d at 966. After Harwood was decided, however, the United States Supreme Court held that this type of intent-based test is too vague. Fed. Election Comm’n v. Wis. Right to Life, Inc. (“WRTL II”), 551 U.S. 449, 468 (2007). Under an intent-and-effect test, identical communications could be treated differently. Speakers wishing to influence an election could be regulated, while speakers using the same words, but wishing only to voice opinions on public issues, could not. Regulating speech based on the intent of the speaker would therefore “‘blanket[] with uncertainty whatever may be said,’ and ‘offer[] no security for free discussion’”; in other words, intent-based regulation “chill[s] core political speech.” Id. (quoting Buckley, 424 U.S. at 43). Because of these problems, the Court held that intent-based standards must give way to an objective approach, under which a communication amounts to “electioneering” only if it is the “functional equivalent of express advocacy”—that is, only if it is “susceptible of no reasonable interpretation other than as an appeal to vote for or against 33

a specific candidate.” Id. at 470. The Court also provided a negative definition, under which a communication is not electioneering if it (1) merely “take[s] a position on [an] issue” and asks others to do the same; (2) does not “mention an election, candidacy, political party, or challenger”; and (3) does not “take a position on a candidate’s character, qualifications, or fitness for office.” Id. WRTL II’s holding therefore provided a roadmap for applying Harwood’s definition of electioneering. The Secretary, seeking to make Colorado campaign finance law clear and understandable, explicitly included that road map in Rule 1.7—just as its predecessor, former Rule 9.4 did.6 Indeed, Rule 1.7 mirrors the language of the U.S. Supreme Court and, just like former Rule 9.4, cites WRTL II itself. The Colorado Supreme Court recently made clear that Rule 1.7’s underpinnings remain sound. In Colorado Ethics Watch v. Senate Majority Fund, the Court analyzed WRTL II’s formulation of the The full text of Rule 1.7 and former Rule 9.4 is included in Addendum A to the Secretary’s Opening Brief.
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“functional equivalent” test. 269 P.3d at 1257–58 (quoting WRTL II, 551 U.S. at 470). The Court recognized that “an intent-based test” like the one adopted in Harwood “would serve as a deterrent and chill core political speech” and would open the door to “burdensome litigation” about the subjective motivations of the speaker. Id. at 1257. The “functional equivalent” test is therefore required in lieu of an intentbased approach. Id. Rule 1.7 is consistent with the Colorado Supreme Court’s analysis. It begins with Harwood’s definition of “electioneering” but recognizes that an intent-based approach cannot be used to determine whether speech triggers campaign finance regulations. It therefore incorporates recent case law, which, as the Colorado Supreme Court recognizes, is designed to avoid “burdensome litigation” that “chill[s] protected political speech.” Id. B. The “functional equivalent” test is still relevant to Colorado’s regulation of electioneering.

CEW and CCC argue that Citizens United undermined the significance of WRTL II and made “the ‘functional equivalent’ standard 35

[] not applicable” in Colorado. (CEW and CCC Op.-Ans. Br. at 34.) They point to cases from various federal courts to suggest that the “functional equivalent” test “need not be grafted onto disclosure-only regimes.” (Id. at 41–42.) They also claim that a Colorado Supreme Court case, which applies the holding of Citizens United to Colorado’s former ban on corporate electioneering communications, makes WRTL II irrelevant. (Id. at 34 (citing In re Interrogatories, 227 P.3d 892 (Colo. 2010).) This argument misses the point of Rule 1.7. The rule is based on the accepted definition of “electioneering” in Colorado, which Harwood established. Harwood, however, adopted an intent-based test, and both the Colorado Supreme Court and the United States Supreme Court acknowledge that this type of test creates constitutional problems. Rule 1.7 therefore incorporates recent precedent to explain how the definition of “electioneering” in Colorado is applied. Other states, of course, may use different definitions of “electioneering” with different constitutional implications. But the question Rule 1.7 answers is one of Colorado law, and cases interpreting other states’ laws do not address that question.

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In re Interrogatories does not alter this analysis. There, the Colorado Supreme Court applied Citizens United to two specific provisions of Colorado campaign finance law, Sections 3(4) and 6(2) of Article XXVIII. In re Interrogatories, 227 P.3d at 894. The court invalidated these provisions to the extent they banned speech by corporations and unions. But the court said nothing about Colorado’s definition of “electioneering communications” as interpreted by Harwood. Indeed, that opinion said nothing at all about the “functional equivalent” test—even though, at the time, former Rule 9.4 used that test to define “electioneering.” C. Rule 1.7 is identical to its predecessor and makes no changes to Colorado law.

In an attempt to avoid the flaws in their arguments against Rule 1.7, CEW and CCC adopt a strained, erroneous reading of the rule. They claim that the rule “uses a term not found in former Rule 9.4—‘the functional equivalent of express advocacy’ . . . [and] provides a get-outof-reporting-free card.” (CEW and CCC Op.-Ans. Br. at 40–41.) They are correct that the old rule did not use the label “functional equivalent.” 37

But they are wrong on substance. Former Rule 9.4 and current Rule 1.7 both cite WRTL II and explain that a communication is not “electioneering” unless it is subject to “no reasonable interpretation other than an appeal to vote for or against a specific candidate.” (Sec’y Op. Br. at A-1.) The rules are substantively identical, as the district court recognized below. CEW and CCC also assert that “the specific safe harbors in Rule 1.7.3 create regulatory exemptions” and “arbitrarily carve[] out numerous types of advertisements.” (CEW and CCC Op-Ans. Br. at 37.) Those “exemptions,” however, come straight out of WRTL II. And they are not, in fact, “safe harbors” or “exemptions” at all7—they are merely elements of the definition employed by the Supreme Court. Compare Below, the Secretary referred to the negative definition of electioneering as a “safe harbor,” but he never implied that the negative definition is any broader than the “functional equivalent” test. (E-File R. at 291.) Neither did the Supreme Court. WRTL II, 551 U.S. at 470. Rule 1.7 merely “clarifies which communications are, and which are not, subject to requirements imposed for electioneering communications.” (Admin. R. Vol. 1, Tab 1, Proposed Statement of Basis, Purpose, and Specific Statutory Authority at 2.)
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Rule 1.7.3 with WRTL II, 551 U.S. at 470 (holding that communications are not electioneering when they merely “take a position on [an] issue” and ask others to do the same; when they do not “mention an election, candidacy, political party, or challenger”; and when they do not “take a position on a candidate’s character, qualifications, or fitness for office”) Plaintiffs attempt to brush aside the fact that Rule 1.7 is substantively identical to former Rule 9.4, hyperbolically arguing that “[d]uring the 2012 election, voters were left in the dark about [political] ads thanks to the district court’s erroneous ruling.” (CEW and CCC Op.Ans. Br. at 35.) Yet they point to no 2012 political advertisement about which Colorado voters were “left in the dark,” and the Secretary certainly is not aware of one. In any event, their argument assumes that Rule 1.7 somehow changed Colorado law, when it did nothing of the sort. Rule 9.4, the predecessor to Rule 1.7, explicitly adopted the Harwood–WRTL II “functional equivalent” test. (Sec’y Op. Br. at A-1.) And administrative law judges have been routinely applying that test in electioneering disputes for years. See Colo. League of Taxpayers, No. OS 2009-0001, at 39

2 n.2 (Apr. 24, 2009) (ALJ Decision). Plaintiffs fail to explain how Rule 1.7 leaves voters “in the dark” when it is based on the very same case law, and the same legal principles, as its predecessor. Conclusion The Secretary respectfully requests that the Court reverse the district court’s order as to Rules 1.18.2, 1.12.3, 7.2.1, 1.10, and 18.1.8(a) and conclude that each of these rules is valid and enforceable. The Secretary further requests that the Court affirm the district court’s order as to Rule 1.7.

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Respectfully submitted on April 25, 2013. JOHN W. SUTHERS Attorney General /s/ Frederick R. Yarger LEEANN MORRILL First Assistant Attorney General Public Officials Unit State Services Section FREDERICK YARGER, 39479* Assistant Solicitor General MATTHEW GROVE, 34269* Assistant Attorney General Public Officials Unit State Services Section Attorneys for Secretary Gessler *Counsel of Record

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CERTIFICATE OF SERVICE This is to certify that I have served this ANSWER-REPLY BRIEF OF APPELLANT / CROSS-APPELLEE COLORADO SECRETARY OF STATE on all parties by LexisNexis File & Serve at Denver, Colorado, on April 25, 2013, addressed as follows: Mark Grueskin Heizer Paul Grueskin LLP 2401 15th Street, Suite 300 Denver, Colorado 80202 Luis Toro Margaret Perl 1630 Welton Street Denver, Colorado 80202 Jennifer H. Hunt Hill & Robbins, P.C. 1441 18th Street, Suite 100 Denver, Colorado 80202-1256

/s/ Frederick R. Yarger Frederick R. Yarger

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