Show Me the Donors! CO Law May Force Citizens United to Disclose Contributor List

Citizens United, the Washington-based conservative messaging group whose name has become synonymous with free-flowing campaign spending, plans to make a documentary and advertisements in Colorado this election season and wants to keep the identities of the people funding its work secret. On Tuesday, executives asked the secretary of state’s office to clarify whether doing so would violate Colorado’s campaign finance laws.

“The issue here today is about the freedom of the press. We are part of the press. Our press activities are documentary films,” said CEO David Bossie at a downtown hearing. He called campaign finance reporting a burdensome abridgment of freedom of speech.

Bossie’s organization gained notoriety in 2010 when it won a Supreme Court case against the Federal Election Commission. The ruling has allowed corporations to contribute unlimited amounts of money on behalf of political candidates.

Federal law still requires Political Action Committees to disclose their funding sources, nonprofits like Citizens United are free from disclosure laws — so long as issues, not elections, remain the primary focus of their work.

Under Colorado law, however, all funding for any “electioneering” activity in amounts greater than $250 must be disclosed. The state defines electioneering as any communications published in the two months before an election that refer unambiguously to a candidate for an audience that includes voters.

Bossie argued Tuesday that Citizens United doesn’t aim to work for free or at a loss. He said it’s most profitable to produce films and ads and sell them in the weeks before Election Day when interest is naturally highest.

Offerings now available at the group’s site include works on the “sickening impact of Obamacare,” the need to abolish the IRS and further investigate the U.S. consulate attack in Benghazi.

Bossie and Citizens United Vice President Michael Boos argued their Colorado film should be exempt from donor reporting for the same reason news products don’t have to reveal their financing. They said their film would mention Colorado political figures but not in the context of any current election contest. The film won’t qualify as electioneering speech, they said.

Nonprofit Colorado Ethics Watch disagreed. At the hearing, Ethics Watch Director Luis Toro argued it’s not possible for the secretary of state to decide whether the film or the trailers for it would constitute electioneering because the content has yet to be produced. He noted that Citizens United has a history of producing films, for example one in Virginia, which included promotional trailers that looked a lot like political ads for that state’s gubernatorial race.

Bossie argued that if their film impacted the elections, its influence should be considered equal to an evening news report or to work by filmmaker Michael Moore, whose documentary Fahrenheit 9/11 — critical of the Bush administration — came out right before the 2004 national elections.

Toro noted that, even if Citizens United could qualify for the kind of disclosure exemptions enjoyed by the media, the group would still have to report the funding behind any political ads — just as any news source would have to do if they spent money on political ad production.

“No one is saying that Citizens United can’t make this movie or spend as much money as they want on this movie,” Toro said. “All we’re asking for is that they comply with disclosure requirements in the Colorado constitution…They can say whatever they want.

“What’s at stake is casting an informed ballot. Like the U.S. Supreme Court said in the Citizen’s United case, it’s important for voters to know who’s spending money to influence the election so they can evaluate the message.”

It’s not clear whether being required to disclose donors in Colorado would be a dealbreaker for Citizens United and effectively scotch its work plans.

Even if the secretary’s office grants a disclosure exemption now, complaints might pour into the office once the group produces and airs its products and citizens or watchdog organizations like Ethics Watch feel they violate the law.

Secretary of State Scott Gessler is running for governor and has stepped back from Citizens United’s request. Deputy Secretary of State Suzanne Staiert said she will issue an opinion on the matter before the end of the week.

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