Hackstaff Law Group Defeats Effort to Chill Election Speech:
Colorado Supreme Court Upholds “magic words” Definition of “express advocacy”

February 21, 2012

Contact: Mario Nicolais Steve Klenda
303.534.4317 303.534.4317
mn@hackstafflaw.com sk@hackstafflaw.com

Today, in an opinion by Chief Justice Michael Bender, the Colorado Supreme Court unanimously rejected an effort to subject more political speech to Colorado campaign finance regulations by redefining “express advocacy” to include the “functional equivalent of express advocacy.” The Court ruled in favor of the Senate Majority Fund, LLC, represented by attorneys Steven Klenda and Mario Nicolais of the Hackstaff Law Group, and the Colorado Leadership Fund, represented by Jason Dunn of Brownstein Hyatt Farber Schreck.

For over 25 years, since the U.S. Supreme Court’s decision in Buckley v. Valeo, political speech could only be regulated if it was “express advocacy,” which the Supreme Court defined by “magic words,” such as “vote for,” “vote against,” or “support.” Colorado Ethics Watch argued that Buckley was “no longer operative” because the U.S. Supreme Court had permitted the “functional equivalent of express advocacy” to be regulated in the narrow context of candidate-specific, pre-election speech, called an “electioneering communication.” The Colorado Supreme Court rejected this approach because it could make Colorado campaign-finance regulations unconstitutionally vague and chill political speech. The Court also clarified that the presence of “magic words” alone does not constitute express advocacy, but a communication must also “exhort the reader to vote for or against” a candidate to be subject to campaign-finance regulations.

The Court found that no communications disseminated by the groups during the 2008 election cycle constituted “express advocacy,” and, consequently, the groups did not need to register as political committees subject to contribution limits.

The attorneys for the Senate Majority Fund, Steven Klenda and Mario Nicolais, hailed the ruling as a complete and total victory for free speech. “Today’s opinion is a victory for the tradition of robust political debate that the Founding Fathers intended the First Amendment to protect,” said Steven Klenda. “The Colorado Supreme Court correctly—and unanimously—rejected an activist attempt to subject vast swaths of candidate-specific political debate to campaign-finance regulations. Replacing Buckley’s bright-line, ‘magic words’ test with a vague and uncertain standard would have allowed government to subjectively decide what political speech could be regulated, and thus punished. The First Amendment forbids this.”

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