Tenth Circuit rejects challenge to donor disclosure requirement in Colorado election law

The Independence Institute wanted to run a television ad right before the 2014 general election that criticized Colorado’s failure to audit its health insurance exchange, and which asked viewers to contact the governor (who was then up for re-election) to express their views.

The Institute was concerned that this ad might be considered an “electioneering communication” under Colorado law, which would require it to disclose the names of donors who gave money to support running the ad. It filed suit to challenge the disclosure requirement, arguing that because the ad did not urge viewers to vote for or against the governor, it was unrelated to a campaign, and the First Amendment prohibited Colorado from requiring it to disclose the names of donors who supported the ad.

Yesterday, in Independence Institute v. Williams, the Tenth Circuit rejected these claims. Chief Judge Tymkovich’s opinion explains that the Colorado law, as applied to the advertisement, satisfied the exacting scrutiny standard set forth in Citizens United. The disclosure requirement was supported by the interest in informing the public about who is financing ads that mention political candidates, and it was narrowly tailored to require disclosure only of donors who provided funds specifically earmarked to pay for the advertisement.

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