Secretary of State Sued Over Issue Committee Registration Requirements
Rules are unconstitutionally vague and arbitrary, groups argue

by Julia Cardi

A new legal arm of the Public Trust Institute has filed a lawsuit in federal court against Secretary of State Jena Griswold and Director of Elections Judd Choate over the department’s requirements for registering issue committees, claiming they are unconstitutionally vague and arbitrary.

The lawsuit filed Sept. 11 on behalf of the plaintiffs Colorado Union of Taxpayers and the Stop the Wolf Coalition has challenged the Secretary of State’s determination the organizations must register as issue committees, and claim the rules for issue committee registration deprive organizations of their free speech rights and of due process, claiming they are vague and arbitrary. Among other claims, the lawsuit states Colorado’s rules are not narrowly construed to serve a compelling government interest.

A press release from the Public Trust Institute – which pursued ethics complaints against former Gov. John Hickenlooper for violating the state’s constitutional gifts ban – states the lawsuit is the first filed by the organization’s new public-interest law firm.

Issue committees have to report their donors and spending activity if they accept, contribute, or spend more than $5,000 in an election cycle in support of or against ballot issues. According to the complaint, that threshold is arbitrary and does not have a rational basis.

Issue committees have “a major purpose” of supporting or opposing ballot issues. State law defines a “major purpose” as reflected by an organization’s identified objectives in its organizational documents or established behavior pattern based on annual spending on or communications about ballot issues.

According to the complaint, the Secretary of State requires organizations must both meet the $5,000 threshold and satisfy the major purpose test to qualify as issue committees.

“Even if the Secretary of State’s rules are correct that an organization must meet both the expenditure and the major purpose test before being subject to issue committee regulation, the government has provided no definition of ‘a major purpose’ that allows an organization to determine beforehand if it will be subject to the registration, reporting, and disclosure requirements,” reads the complaint.

Although according to the complaint the Colorado Union of Taxpayers’ organizational documents don’t specifically identify any ballot issues in its objectives, the CUT plans to speak out on, support and oppose ballot issues for this November’s election cycle and in the future, states the complaint.

Also according to the complaint, in 2019 the Stop the Wolf Coalition raised about $115,000 and spent $89,000 on communications asking voters to oppose a proposed ballot question for reintroducing wolves to Colorado. At the time the issue had not yet been certified for this November’s ballot. The Secretary of State has sought to require the Coalition to register as an issue committee as of June 2019 and report its contributions and spending from then forward, on the grounds the Coalition has a major purpose of opposing a ballot issue.

“Despite the Coalition’s miniscule spending against a proposed ballot initiative, the Secretary has taken a hyper-aggressive approach to enforcement,” states the complaint. “Taking advantage of the inherent vagueness of the term ‘a major purpose,’ she argues that the Coalition has ‘a’ major purpose of opposing a ballot issue. ”

Among other requests, the complaint asks for the U.S. District Court to stop the Secretary of State from enforcing any rule or law based on the major purpose test. The complaint also requests the court to declare Colorado’s rules for issue committee registration unconstitutionally vague and the $5,000 threshold for reporting donors and spending unconstitutionally arbitrary, and asks for a declaration that the Colorado Union of Taxpayers and the Stop the Wolf Coalition need not register as issue committees.