DENVER (CN) — A group of fiscally conservative Coloradans has standing to sue the state over its campaign disclosure rules, the 10th Circuit Court of Appeals said Wednesday, in an order remanding the case to the district court for review of its alleged First Amendment violations.
"For standing, Colorado Union argues that it fears an enforcement action. The credibility of that fear involves a fact-issue that prevents summary judgment,” wrote Circuit Judge Robert Bacharach, in a 28-page opinion.
The Colorado Union of Taxpayers challenged the state’s disclosure requirements in a lawsuit filed Sept. 11, 2020. The Colorado Stop the Wolf Coalition was also an original party on the case, but left in 2021.
Since 1976, the nonprofit CUT has advocated against "excessive taxation, regulation, and government spending," according to the organization's website.
CUT spent $3,500 on ballot advocacy in 2020, triggering Colorado’s requirement that it register as a small-scale issue committee. The prior year, the organization spent $5,001 on ballot issues, qualifying it as a regular issue committee and thus requiring more extensive donor and expenditure disclosures.
Senior District Judge Christine M. Arguello, a George W. Bush appointee, issued summary judgment in favor of Secretary of State Jena Griswold in March 2022, finding the organization lacked standing because the state has not taken steps against CUT to enforce the rules at issue.
The 10th Circuit reversed the dismissal and remanded the case for consideration on the merits of its claim that donor disclosure violates CUT's First Amendment rights.
Wednesday's ruling follows in lockstep with the Supreme Court’s June decision in 303 Creative v. Elenis, another pre-enforcement lawsuit, which found a Christian web designer could exclude same-sex couples from the wedding website business she planned to launch.
"Given our recognition of a fact-issue on standing in 303 Creative, we conclude that a factfinder could reasonably find a credible fear of enforcement against Colorado Union even though it had spent less money on ballot issues than Unite for Colorado,” Bacharach wrote.
In the District Court of Denver, dark money group Unite for Colorado, which spent millions of dollars backing state candidates, also sued to block the state's disclosure requirements and won earlier this year.
“We’re pleased the Tenth Circuit recognized we have a right to our day in court," a spokesperson for the Colorado Union of Taxpayers said via email. "With this appeal behind us, we look forward to returning to the trial court and getting to the heart of the important First Amendment issues at stake here.”
CUT is represented by Daniel Nightingale of the Denver firm Wheeler Trigg O'Donnell.
Colorado Secretary of State Jena Griswold, a Democrat, said she will defend the disclosure requirements in the district court.
“As Secretary of State, I will always fight against dark money," Griswold said via email. "I am optimistic that the facts of the case will result in another dismissal at the trial level.”
Bacharach, an Obama appointee, was joined by Bill Clinton-appointed Senior Circuit Judges Mary Beck Briscoe and Michael Murphy.
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