James Madison Center Files Challenge to Colorado's Amendment 27
 

On Thursday, July 31, 2003, James Madison Center attorneys filed a constitutional challenge to several provisions of Colorado's Constitutional Amendment 27.  Plaintiffs Colorado Right to Life, Inc.,  and Colorado Citizens for Responsible Government, Inc., are challenging various provisions of Amendment 27 that limit their freedom of speech and association in the name of "reform."

Like the challenged provisions of the Bipartisan Campaign Reform Act, Amendment 27 "reforms" the political process by unconstitutionally regulating groups who merely mention a candidate's name during the 30 days before a primary or the 60 days before a general election regardless of whether the mention of the candidate's name is part of a call to vote for or against that candidate.  Worse yet, some organizations are completely banned from making such communications simply because the group has chosen to be a non-profit corporation rather than remain an unincorporated organization of like-minded individuals.  Plaintiffs are challenging Amendment 27's definition of "political committee" for similar reasons.

Such legislation flies in the face of Supreme Court precedent which allows regulation of "express advocacy," i.e. communications that contain explicit words advocating the election or defeat of a candidate, while requiring that "issue advocacy," i.e. communications which do not contain explicit words advocating the election or defeat of a clearly identified candidate, may not be regulated at all.

According to James Bopp, Jr., General Counsel to the James Madison Center, "The challenged provisions of Amendment 27 hinder the political process by excluding some and limiting others from sharing information on issues concerning candidates at precisely the time the public is most interested in hearing it.  As a result, the public will not have access to information necessary to making informed decisions regarding legislation and public officials."

The James Madison Center previously challenged similar provisions of Colorado's Fair Campaign Practices Act, adopted by initiative in 1996, which sought to regulate issue advocacy. In that case, Citizens for Responsible Government State Political Action Committee v. Davidson, 236 F. 3d 1174 (2000), the Tenth Circuit Court of Appeals held that only communications containing express advocacy may be constitutionally regulated.  Eight of the 12 Federal Circuit Courts of Appeal have considered whether issue advocacy can be regulated and have unanimously determined that it cannot.

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