CO House Bill 19-1318 The Clean Campaign Act Of 2019

Comments provided by H. Branscomb 4/18/2019

First Regular Session Seventy-second General Assembly

STATE OF COLORADO

INTRODUCED

A BILL FOR AN ACT CONCERNING INCREASED TRANSPARENCY OF MONEY IN ELECTIONS CONSISTENT WITH THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION.

LLS NO. 19-0514.01 Bob Lackner x4350

HOUSE BILL 19-1318

HOUSE SPONSORSHIP Weissman, Kennedy

SENATE SPONSORSHIP Bridges and Foote,

House Committees Senate Committees State, Veterans, & Military Affairs

[Inline comments version G added by
HARVIE BRANSCOMB in brackets]

[4/16/2019 harvie@electionquality.com]

Capital letters indicate new material to be added to existing statute. Dashes through the words indicate deletions from existing statute.

Bill Summary (Note:  This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://leg.colorado.gov.)

Section 2 of the bill prohibits an issue committee or small-scale issue committee from knowingly accepting contributions from:

  • Any natural person who is not a citizen of the United States;
  • A foreign government; or
  • Any foreign corporation that does not have the authority to transact business in this state.

Under the bill, a natural person who is not a citizen of the United States, a foreign government, or a foreign corporation is prohibited from establishing, registering, or maintaining a political committee, small donor committee, political party, issue committee, or small-scale issue committee, or making an electioneering communication or regular biennial school electioneering communication.

If, within the 6 months before becoming a candidate for public office, a person actively solicits funds for an independent expenditure committee with the intent of benefitting his or her future candidacy, any expenditure made by that independent expenditure committee in that candidate’s race is presumed to be controlled by or coordinated with that candidate and deemed to constitute both a contribution by the maker of the expenditures, and an expenditure by the candidate committee.

Section 3 extends existing restrictions barring a foreign corporation from expending money on an independent expenditure to include a natural person who is not a citizen of the United States, or a foreign government. The bill also prohibits an independent expenditure committee from knowingly accepting a donation from any natural person who is not a citizen of the United States, any foreign government, or any foreign corporation.

The bill expands existing requirements requiring a disclaimer to include communication placed on a website, streaming media service, or an online forum for a fee, or that is otherwise distributed. Existing requirements pertaining to the nature of the disclaimer are expanded to include online video or audio communications.

Any corporation, labor organization, or independent expenditure committee (covered organization) that contributes, donates, or transfers $10,000 or more to any person during any one calendar year earmarked for the purpose of making an independent expenditure or electioneering communication must provide to the recipient of the contribution, donation, or transfer a written affirmation.

Any covered organization that transfers $10,000 or more to any person, earmarked for the purpose of that person making a contribution, donation, or transfer to pay for an independent expenditure or electioneering communication, during any one calendar year, must provide to the recipient of the transfer a written affirmation. Particular disclosure requirements are made applicable to a covered organization that is not a for-profit organization.

The bill prohibits any person from accepting a contribution, donation, or transfer from a covered organization unless the covered organization provides a written affirmation. The bill describes the required contents of the affirmation.

Section 4 repeals and reenacts existing statutory provisions addressing small-scale issue committees and, in particular, specifies requirements governing when such committees are required to disclose and file reports of their contributions or expenditures. Under existing law, an issue committee making an expenditure in excess of $1,000 on a communication is required to disclose in the communication the name of the issue committee making the expenditure.

Section 5 expands these requirements so they apply to a candidate committee, political committee, small donor committee, political organization, political party, or other person, as well as an issue committee, making or spending more than $1,000 per calendar year on a communication. The bill also extends these requirements to communication placed on a website, streaming media service, or online forum for a fee. Instead of requiring that the communication disclose certain information, the bill requires that the responsible person include in the communication a disclaimer statement. The bill specifies the contents of the disclaimer statement.

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1. In Colorado Revised Statutes, 1-45-103, amend the introductory portion and (7.5); and repeal and reenact, with amendments, (16.3) as follows: 1-45-103. Definitions -repeal. As used in this article ARTICLE 45, unless the context otherwise requires: (7.5) “Earmark” means a designation, instruction, or encumbrance that directs the transmission by the recipient of all or part of a donation to a third party for the purpose of making one or more independent expenditures OR ELECTIONEERING COMMUNICATIONS in excess of one thousand dollars. (16.3) (a) “SMALL-SCALE ISSUE COMMITTEE” MEANS AN ISSUE COMMITTEE THAT HAS ACCEPTED OR MADE [HB1] CONTRIBUTIONS OR EXPENDITURES IN AN AMOUNT THAT DOES NOT EXCEED FIVE THOUSAND DOLLARS DURING AN APPLICABLE ELECTION CYCLE FOR THE MAJOR PURPOSE OF SUPPORTING OR OPPOSING ANY BALLOT ISSUE OR BALLOT QUESTION.

[accepted total or made total which ever larger? Accepted total separately accounted plus total made (even if same dollars are counted twice)? This could be more clear.]

(b) THE FOLLOWING ARE TREATED AS [HB2] [HB3] A SINGLE SMALL-SCALE ISSUE COMMITTEE:

[Meaning multiple somehow associated small-scale issue committees actually aren’t small-scale? And are they supposed to collectively self-identify and report as issue committees somehow? What does “treated” mean? Will that be left to rulemaking? I see this paragraph is largely copied from the existing statutory definition. Now would be a great time to update the language to make it clearer.]

  • ALL SMALL-SCALE ISSUE COMMITTEES THAT SUPPORT OR OPPOSE A COMMON [HB4] BALLOT MEASURE IF THE COMMITTEES ARE ESTABLISHED, FINANCED, MAINTAINED, OR CONTROLLED BY A SINGLE CORPORATION OR[HB5]  ITS SUBSIDIARIES; (II) ALL SMALL-SCALE ISSUE COMMITTEES THAT SUPPORT OR OPPOSE A COMMON BALLOT MEASURE IF THE COMMITTEES ARE ESTABLISHED, FINANCED, MAINTAINED, OR CONTROLLED BY A SINGLE LABOR ORGANIZATION OR[HB6]  THE AFFILIATED LOCAL UNITS IT DIRECTS; OR (III) ALL SMALL-SCALE ISSUE COMMITTEES THAT SUPPORT OR OPPOSE A COMMON BALLOT MEASURE IF THE COMMITTEES ARE ESTABLISHED, FINANCED, MAINTAINED, OR CONTROLLED BY SUBSTANTIALLY[HB7]  THE SAME PERSON, GROUP OF PERSONS, OR OTHER ORGANIZATIONS.

[“Common means “the same”? Could be written: “support or oppose the same ballot measure” It is unnecessarily arcane language in three instances. “or its subsidiaries” could be “including its subsidiaries”; likewise for “affiliated local units”. “Substantially the same person means what? And who decides what it means?].

SECTION 2. In Colorado Revised Statutes, 1-45-103.7, add (5.3), (5.5), and (11) as follows:

1-45-103.7. Contribution limits -treatment of independent expenditure committees -contributions from limited liability companies -voter instructions on spending limits -definitions.

(5.3) AN ISSUE COMMITTEE OR SMALL-SCALE ISSUE COMMITTEE SHALL NOT KNOWINGLY ACCEPT CONTRIBUTIONS FROM:

(a) ANY NATURAL PERSON WHO IS NOT A CITIZEN OF THE UNITED STATES;

(b) A FOREIGN GOVERNMENT; OR

(c) ANY FOREIGN CORPORATION THAT DOES NOT HAVE THE AUTHORITY TO TRANSACT BUSINESS IN THIS STATE PURSUANT TO ARTICLE 115 OF TITLE 7 OR ANY SUCCESSOR SECTION.

(5.5) A NATURAL PERSON WHO IS NOT A CITIZEN OF THE UNITED STATES, A FOREIGN GOVERNMENT, OR A FOREIGN CORPORATION SHALL NOT ESTABLISH, REGISTER, OR MAINTAIN A POLITICAL COMMITTEE, SMALL DONOR COMMITTEE, POLITICAL PARTY, ISSUE COMMITTEE, OR SMALL-SCALE ISSUE COMMITTEE, OR MAKE AN ELECTIONEERING COMMUNICATION OR REGULAR BIENNIAL SCHOOL ELECTIONEERING COMMUNICATION. [HB8] 

[[HB9]  A “regular biennial school electioneering communication”turns out to be a complex subset of an “electioneering communication” The definition of the “regular biennial school electioneering communication is a hideously complex variation and here it is if you can read it: (15.5)  “Regular biennial school electioneering communication” has the same meaning as “electioneering communication” as defined in section 2 (7) of article XXVIII of the state constitution; except that, for purpose of the definition of regular biennial school electioneering communication only, “candidate” as referenced in section 2 (7)(a)(I) of said article means a candidate in a regular biennial school election and the requirements specified in section 2 (7)(a)(II) mean a communication that is broadcast, printed, mailed, delivered, or distributed within sixty days before a regular biennial school election. Except as otherwise specified in this subsection (15.5), the definition of “regular biennial school electioneering communication” is the same as that of “electioneering communication”.]

(11) (a) IF, WITHIN THE SIX MONTHS BEFORE BECOMING A CANDIDATE FOR PUBLIC OFFICE, A PERSON ACTIVELY SOLICITS FUNDS FOR AN INDEPENDENT EXPENDITURE COMMITTEE WITH THE INTENT OF BENEFITING HIS OR HER FUTURE CANDIDACY, ANY EXPENDITURE MADE BY THAT INDEPENDENT EXPENDITURE COMMITTEE IN THAT CANDIDATES RACE[HB10]  IS PRESUMED TO BE CONTROLLED BY OR COORDINATED WITH THAT CANDIDATE AND DEEMED TO CONSTITUTE BOTH A CONTRIBUTION BY THE MAKER OF THE EXPENDITURES[HB11] , AND AN EXPENDITURE BY THE CANDIDATE COMMITTEE[HB12] .

[“In that candidate’s race” – “In” means what? Means the “person” is now a “candidate”? This “maker of the expenditures” appears to be the “independent expenditure committee”. Better to make clear if so. This means possibly that “expenditures” prior to the announcement of candidacy are to be retroactively included in “candidate committee” expenditures? If so the retroactivity ought to be made more clear.]

(b) IF ANY COMPLAINT FILED UNDER SECTION 1-45-111.7 FOR A VIOLATION OF THIS SUBSECTION (11) FAILS TO STATE SUFFICIENT FACTS TO SUPPORT THE ALLEGATIONS OF THE COMPLAINT, UPON A FINAL AGENCY ACTION, THE RESPONDENT TO SUCH A COMPLAINT MAY APPLY TO THE STATE DISTRICT COURT FOR AN AWARD OF THE PERSON’S ATTORNEYS FEES AND COSTS IN CONNECTION WITH DEFENDING AGAINST THE COMPLAINT IF[HB13]  THE DISTRICT COURT DETERMINES THAT THE COMPLAINT WAS FRIVOLOUS, VEXATIOUS, OR FOR THE PURPOSE OF HARASSMENT.

[Two “if”s separated by the subject and action can only be confusing.”If… and if” would be better.]

SECTION 3. In Colorado Revised Statutes, 1-45-107.5, amend (1) and (5); and add (14) as follows: 1-45-107.5.   Independent expenditures – restrictions on foreign corporations -registration – disclosure – disclaimer requirements ­definitions. (1) Notwithstanding any other provision of law, no NATURAL PERSON WHO IS NOT A CITIZEN OF THE UNITED STATES, FOREIGN GOVERNMENT, OR foreign corporation may expend moneys on an independent expenditure in connection with an election in the state, AND NO INDEPENDENT EXPENDITURE COMMITTEE MAY KNOWINGLY ACCEPT A DONATION FROM ANY NATURAL PERSON WHO IS NOT A CITIZEN OF THE UNITED STATES, ANY FOREIGN GOVERNMENT, OR ANY FOREIGN CORPORATION[HB14] .

[Only because you can’t be a citizen of a foreign corporation is this a clear statement. Section 2(5.3) is much more clear with numbered bullet points.]

(5) (a) In addition to any other applicable requirements provided by law, and subject to the provisions of this section, any communication[HB15]  that is broadcast, printed, mailed, delivered; PLACED ON A WEBSITE, STREAMING MEDIA SERVICE, OR ONLINE FORUM FOR A FEE[HB16] ; or THAT IS otherwise circulated DISTRIBUTED[HB17]  that constitutes an independent expenditure for which the person[HB18]  making the independent expenditure expends in excess of one thousand dollars on the communication shall include in the communication a statement that:

[In place of “any communication” could you substitute: “any payment for a communication” – or “expenditure in connection with”? Is “for a fee” here for a reason and which items does it apply? -only to “online forum”?  Could you replace “distributed” with “communicated both in private and in public”? Apparently the “person” referred to may be non-natural.]

(I) The communication has been “paid for by (full name of the person paying for the communication)”; and

(II) Identifies a natural person who is the registered agent if the person identified in subparagraph (I) of this paragraph (a) SUBSECTION (5)(a)(I) OF THIS SECTION is not a natural person.

(b) In the case of a broadcast OR ONLINE VIDEO OR AUDIO communication, the statement required by paragraph (a) of this subsection (5) SUBSECTION (5)(a) OF THIS SECTION shall satisfy all applicable requirements promulgated by the federal communications commission for size, duration, and placement.

(c) In the case of a nonbroadcast communication, INCLUDING AN ONLINE COMMUNICATION[HB19] , the secretary of state shall, by rule, establish size and placement requirements for the disclaimer STATEMENT. IF THE SIZE, FORMAT, OR DISPLAY REQUIREMENTS OF THE COMMUNICATION MAKE IT IMPRACTICABLE TO INCLUDE A DISCLAIMER STATEMENT ON THE COMMUNICATION, THE RULES MUST REQUIRE THAT THE DISCLAIMER STATEMENT BE AVAILABLE BY MEANS OF A DIRECT LINK [HB20] FROM THE COMMUNICATION TO THE WEB PAGE OR APPLICATION SCREEN CONTAINING THE STATEMENT.

(14) (a) ANY COVERED ORGANIZATION THAT CONTRIBUTES, DONATES, OR TRANSFERS TEN THOUSAND DOLLARS OR MORE TO ANY PERSON, EARMARKED FOR THE PURPOSE OF MAKING AN INDEPENDENT EXPENDITURE OR ELECTIONEERING COMMUNICATION, DURING ANY ONE CALENDAR YEAR[HB21] , SHALL PROVIDE TO THE RECIPIENT OF THE CONTRIBUTION, DONATION, OR TRANSFER AN AFFIRMATION, IN WRITING, THAT INCLUDES THE INFORMATION LISTED IN SUBSECTION (14)(d) OF THIS SECTION. AFTER REACHING THE TEN THOUSAND DOLLAR THRESHOLD, THE COVERED ORGANIZATION SHALL PROVIDE A NEW AFFIRMATION STATEMENT FOR EACH QUALIFYING SUBSEQUENT CONTRIBUTION[HB22] , DONATION, OR TRANSFER DURING THAT CALENDAR YEAR.

[ Is “online communication” defined to include robocalls and emails- or defined at all?

“A direct link”: Note that on websites, link size can be infinitesimal – e.g. a link can be as small as one pixel. Rules will need to be specific.

“During any one calendar year” appears to need a reference to “in aggregate” or “in total”.

“For each qualifying subsequent contribution” is a mouthful. It isn’t clear what “qualifying” refers to. Apparently the unmentioned aggregation stops at $10,000 and every contribution beyond is subject to “affirmation.”The “affirmation” in this paragraph and referred to in (14)(d) I will call the (14d) affirmation.]

(b) ANY COVERED ORGANIZATION THAT TRANSFERS TEN THOUSAND DOLLARS OR MORE TO ANY PERSON, EARMARKED FOR THE PURPOSE OF THAT PERSON MAKING A CONTRIBUTION, DONATION, OR TRANSFER TO PAY FOR AN INDEPENDENT EXPENDITURE OR ELECTIONEERING COMMUNICATION, DURING ANY ONE CALENDAR YEAR, SHALL PROVIDE TO THE RECIPIENT OF THE TRANSFER AN AFFIRMATION, IN WRITING, THAT INCLUDES THE INFORMATION LISTED IN SUBSECTION (14)(d) OF THIS SECTION. AFTER REACHING THE TEN THOUSAND DOLLAR THRESHOLD, THE COVERED ORGANIZATION SHALL PROVIDE A NEW AFFIRMATION STATEMENT FOR EACH QUALIFYING SUBSEQUENT TRANSFER DURING THAT CALENDAR YEAR.

(c) A PERSON SHALL NOT ACCEPT A CONTRIBUTION, DONATION, OR TRANSFER AS DESCRIBED IN SUBSECTION (14)(a) OR (14)(b) OF THIS SECTION FROM A COVERED ORGANIZATION UNLESS THE COVERED ORGANIZATION PROVIDES A WRITTEN AFFIRMATION TO THE RECIPIENT SATISFYING THE REQUIREMENTS OF SUBSECTION (14)(d) OF THIS SECTION. THE RECIPIENT SHALL INCLUDE THE WRITTEN AFFIRMATION WHEN REPORTING THE INDEPENDENT EXPENDITURE OR ELECTIONEERING COMMUNICATION TO THE APPROPRIATE FILING OFFICER AND SHALL RETAIN THE WRITTEN AFFIRMATION FOR NOT LESS THAN ONE YEAR FOLLOWING THE DATE OF THE END OF THE ELECTION CYCLE DURING WHICH THE AFFIRMATION WAS RECEIVED.

(d) THE AFFIRMATION REQUIRED BY THIS SUBSECTION (14) MUST INCLUDE:

(I) THE NAME OF THE COVERED ORGANIZATION AND ITS PRINCIPAL PLACE OF BUSINESS[HB23] ;

[[HB23] “Covered organizations” might not be in “business”.]

(II) THE AMOUNT OF THE CONTRIBUTION,DONATION,OR TRANSFER AND THE NAME OF THE PERSON WHO RECEIVED THE[HB24]  CONTRIBUTION, DONATION, OR TRANSFER;

  • (A) IF THE COVERED ORGANIZATION IS A FOR-PROFIT CORPORATION[HB25] , EACH BENEFICIAL OWNER’S NAME AND CURRENT RESIDENCE OR BUSINESS ADDRESS AND, IF A LISTED BENEFICIAL OWNER EXERCISES CONTROL OVER THE ENTITY THROUGH ANOTHER LEGAL ENTITY, SUCH AS A CORPORATION, PARTNERSHIP, LIMITED LIABILITY COMPANY, OR TRUST, EACH SUCH OTHER LEGAL ENTITY AND EACH SUCH BENEFICIAL OWNER WHO WILL USE THAT OTHER ENTITY TO EXERCISE CONTROL OVER THE ENTITY[HB26] .

[“Received the contribution” could be “received each applicable contribution”?

“corporation” appears to be intended not to include partnership, LLC, trust etc.? Why?

Five instances of “entity” in one sentence. Are they all the same “entity”? Confusing..]

(B) FOR PURPOSES OF THIS SUBSECTION (14)(d)(III), “BENEFICIAL OWNER” MEANS A CORPORATIONS[HB27]  OFFICERS, DIRECTORS, AND OWNERS OF MORE THAN FIVE PERCENT OF THE CORPORATION.

[ If “corporation” was intended to include partnership, LLC, trust etc. as one would think- then if so include “managers” and “partners”? This definition is limited to “corporation”.]

(IV) (A) IF THE COVERED ORGANIZATION IS NOT A FOR-PROFIT CORPORATION BUT IS SUBJECT TO DISCLOSURE UNDER SUBSECTION (14)(a) OR (14)(b) OF THIS SECTION, A LIST OF ANY PERSON WHO TRANSFERRED FIVE THOUSAND DOLLARS OR MORE TO THE COVERED ORGANIZATION AND WHO EARMARKED THAT TRANSFER OF FUNDS FOR THE PURPOSE OF MAKING AN INDEPENDENT EXPENDITURE OR ELECTIONEERING COMMUNICATION AS DETERMINED BY THE EARLIER OF EITHER THE PRECEDING TWELVE-MONTH PERIOD THAT ENDS ON THE DATE OF THE TRANSMISSION OF THE INDEPENDENT EXPENDITURE OR ELECTIONEERING COMMUNICATION OR THAT ENDS ON THE DATE OF THE TRANSFER.

(B) A COVERED ORGANIZATION IS NOT REQUIRED TO INCLUDE A NATURAL PERSON’S NAME IF DISCLOSURE OF THAT PERSON WOULD LEAD TO A REASONABLE PROBABILITY [HB28] OF HARM, THREATS, HARASSMENT, OR REPRISALS TO THE PERSON OR TO INDIVIDUALS AFFILIATED WITH THAT PERSON.

[Very difficult to regulate, and may necessitate litigation. However, (C) attempts to address this, but that paragraph talks about redaction rather than inclusion.]

(C) A COVERED ORGANIZATION MAY ONLY REDACT[HB29]  A PERSON’S NAME FROM ITS REPORT UNDER SUBSECTION (14)(d)(IV)(B) OF THIS SECTION IF THE PERSON HAS AFFIRMED [HB30] ON A FORM PROVIDED BY THE SECRETARY OF STATE, UNDER PENALTY OF PERJURY, THAT THE PERSON BELIEVES THERE IS A REASONABLE PROBABILITY THAT THEY WILL BE SUBJECT TO HARM, THREATS, HARASSMENT, OR REPRISAL IF DISCLOSED. THE COVERED ORGANIZATION SHALL RETAIN THE AFFIRMATION FOR NOT LESS THAN ONE YEAR AND SHALL PRODUCE THE AFFIRMATION TO THE SECRETARY OF STATE’S OFFICE IN RESPONSE TO A REQUEST FOR INFORMATION RELATED TO ANY INVESTIGATION OF A CAMPAIGN FINANCE VIOLATION. THE AFFIRMATION MUST REMAIN CONFIDENTIAL DURING THE PENDENCY OF ANY INVESTIGATION AND COMPLAINT WITH A HEARING OFFICER UNDER SECTION 1-45-117.5. FOLLOWING A FINAL AGENCY DECISION FINDING THAT THE INDIVIDUAL WHOSE NAME WAS REDACTED DOES NOT MEET THE REQUIREMENTS OF THIS SUBSECTION (14)(d)(IV)(C), INCLUDING THE APPLICABLE PERIOD FOR APPEAL, THE AFFIRMATION[HB31]  IS NO LONGER CONFIDENTIAL AND IS SUBJECT TO PUBLIC REVIEW[HB32] .

[Unfortunately this Section seems to contain two types of affirmations that will need to be disambiguated. The reference to “has affirmed” here is the second kind of affirmation – apparently a justification for exemption from (14d) “affirmation.” This will lead to confusion. Which “affirmation” do the references here refer to, or perhaps both? The (14d) “affirmation” deserves more than just “subject to public review” – it deserves a deliberate disclosure not yet required here. If the “affirmation” is “subject to public review” does that mean an applicable adjustment of the report or (14d)“affirmation” shall then be made? This seems important.]

(D) IF THE CONTRIBUTION, DONATION, OR TRANSFER UNDER SUBSECTION (14)(a) OR (14)(b) OF THIS SECTION IS FROM ANOTHER COVERED ORGANIZATION, THE COVERED ORGANIZATION SHALL PROVIDE A LIST OF PERSONS WHO TRANSFERRED TO THAT COVERED ORGANIZATION CONSISTENT WITH SUBSECTIONS (14)(d)(IV)(B) AND (14)(d)(IV)(C) OF THIS SECTION.

(V) A COVERED ORGANIZATION NEED NOT INCLUDE A TRANSFER MADE FOR A COMMERCIAL TRANSACTION IN THE ORDINARY COURSE OF ANY TRADE OR BUSINESS CONDUCTING BY THE COVERED ORGANIZATION[HB33] .

[If the “covered organization” is in the business of electioneering communications, this seems to be in conflict with the intention of the bill and a loophole. Perhaps “non-political trade or business” would clarify?]

(VI) A CERTIFICATION BY THE CHIEF EXECUTIVE OFFICER OR PERSON WHO IS THE HEAD[HB34]  OF THE COVERED ORGANIZATION STATING THAT THE CONTRIBUTION, DONATION, OR TRANSFER IS NOT MADE IN COOPERATION, CONSULTATION, OR CONCERT WITH OR AT THE REQUEST OR SUGGESTION OF A CANDIDATE, AUTHORIZED COMMITTEE, OR AGENT OF A CANDIDATE, POLITICAL PARTY, OR AGENT OF A POLITICAL PARTY.

(e) FOR PURPOSES OF THIS SUBSECTION (14), “COVERED ORGANIZATION” MEANS A CORPORATION, INCLUDING AN ENTITY ORGANIZED UNDER SECTION 501(c) OR 527 OF THE INTERNAL REVENUE CODE, A LABOR ORGANIZATION, OR AN INDEPENDENT EXPENDITURE COMMITTEE. IT DOES NOT INCLUDE A SMALL DONOR COMMITTEE, POLITICAL PARTY COMMITTEE, OR CANDIDATE COMMITTEE.

(f) FOR PURPOSES OF THIS SUBSECTION (14), “TRANSFER”, “DONATE”, OR “CONTRIBUTE”DOES NOT INCLUDE THE PROVISION OF FUNDS TO A VENDOR OR IN PAYMENT OF A CONTRACT FOR GOODS OR SERVICES. [HB35] 

[“Head” might require replacement, or expansion in a definition.

“Provision of funds…” looks like a loophole if the contract is for services of “electioneering communication”. See also (V) above. Is this intended to exempt common carriers such as TV stations, phone companies for robocalls? It could be more specific.]

SECTION 4. In Colorado Revised Statutes, 1-45-108, repeal and reenact, with amendments, (1.5); and add (8) as follows: 1-45-108. Disclosure -definition -repeal.

(1.5) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, IN LIGHT OF THE OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT IN THE CASE OF COALITION FOR SECULAR GOVERNMENT V. WILLIAMS, NO. 14-1469 (10TH CIRCUIT MARCH 2, 2016), THAT AFFIRMED THE ORDER OF THE FEDERAL DISTRICT COURT IN THE CASE OF COALITION FOR SECULAR GOVT V. GESSLER, CASE NO. 12 CV 1708, THE DISCLOSURE[HB36]  REQUIREMENTS SPECIFIED IN SUBSECTION (1)(a)(I) OR (1)(a)(II) OF THIS SECTION AND THE REPORTING [HB37] REQUIREMENTS SPECIFIED IN SUBSECTION (3.3) OR (6) OF THIS SECTION SHALL NOT APPLY TO A SMALL-SCALE ISSUE COMMITTEE. A SMALL-SCALE ISSUE COMMITTEE SHALL DISCLOSE OR FILE REPORTS ABOUT THE CONTRIBUTIONS OR EXPENDITURES IT HAS MADE OR RECEIVED [HB38] OR OTHERWISE REGISTER AS AN ISSUE COMMITTEE IN CONNECTION WITH ACCEPTING OR MAKING SUCH CONTRIBUTIONS OR EXPENDITURES IN ACCORDANCE WITH THE FOLLOWING ALTERNATIVE REQUIREMENTS:

[“Disclosure” should be “report and disclosure” – (1)(a)(I) requires a report.

“Reporting requirements” should be “registration requirements” if you check the cited statute.

“Made and received” could be replaced by “received and separately made”?]

  • A SMALL-SCALE ISSUE COMMITTEE THAT ACCEPTS OR MAKES [HB39] CONTRIBUTIONS OR EXPENDITURES IN AN AGGREGATE AMOUNT DURING ANY APPLICABLE ELECTION CYCLE [HB40] THAT DOES NOT EXCEED TWO HUNDRED DOLLARS IS NOT REQUIRED TO DISCLOSE OR FILE REPORTS ABOUT THE CONTRIBUTIONS OR EXPENDITURES IT HAS MADE OR RECEIVED OR OTHERWISE[HB41]  REGISTER AS AN ISSUE COMMITTEE IN CONNECTION WITH ACCEPTING OR MAKING SUCH CONTRIBUTIONS OR EXPENDITURES.

[“Accepts or makes” – Since this results in a quantitative comparison to a threshold it is important to clarify if this is “accepts plus makes in aggregate” even if the same dollars are first accepted and then made into contributions – meaning a double booking of the same funds.

Is it clear when “applicable election cycle” begins and ends?

Why “otherwise register” in his sentence? Should it not be “or register”? This changes the meaning of the end of the sentence.]

(b) (I) A SMALL-SCALE ISSUE COMMITTEE THAT ACCEPTS OR MAKES CONTRIBUTIONS OR EXPENDITURES IN AN AGGREGATE AMOUNT DURING ANY APPLICABLE ELECTION CYCLE OF BETWEEN TWO HUNDRED DOLLARS AND FIVE THOUSAND DOLLARS SHALL REGISTER WITH THE APPROPRIATE OFFICER WITHIN TEN BUSINESS DAYS OF THE DATE ON WHICH THE AGGREGATE AMOUNT OF CONTRIBUTIONS OR EXPENDITURES EXCEEDS TWO HUNDRED DOLLARS. THE REGISTRATION REQUIRED BY THIS SUBSECTION (1.5)(b)(I) MUST INCLUDE A STATEMENT LISTING:

(A) THE COMMITTEE’S FULL NAME, SPELLING OUT ANY ACRONYMS USED IN THE NAME;

(B) THE NAME OF A NATURAL PERSON AUTHORIZED TO ACT AS A REGISTERED AGENT OF THE COMMITTEE;

(C) A STREET ADDRESS FOR THE PRINCIPAL PLACE OF BUSINESS OF THE COMMITTEE;

(D) THE PURPOSE OR NATURE OF INTEREST OF THE COMMITTEE; AND

(E) THE NAME OF THE FINANCIAL INSTITUTION IN WHICH, IN A SEPARATE ACCOUNT BEARING THE NAME OF THE COMMITTEE, ALL CONTRIBUTIONS RECEIVED BY THE COMMITTEE ARE DEPOSITED.

(II) A SMALL-SCALE ISSUE COMMITTEE DESCRIBED IN SUBSECTION (1.5)(b)(I) OF THIS SECTION IS NOT REQUIRED TO MAKE ANY DISCLOSURE ABOUT ANY CONTRIBUTIONS OR EXPENDITURES IT HAS MADE OR RECEIVED.

(c) (I) AT SUCH TIME AS AN ISSUE COMMITTEE THAT BEGAN AS A SMALL-SCALE ISSUE COMMITTEE ACCEPTS OR MAKES CONTRIBUTIONS OR EXPENDITURES IN AN AGGREGATE AMOUNT DURING ANY APPLICABLE ELECTION CYCLE THAT EXCEEDS FIVE THOUSAND DOLLARS, THE COMMITTEE SHALL REPORT TO THE APPROPRIATE OFFICER, FOR EACH PARTICULAR CONTRIBUTION OR EXPENDITURE ACCEPTED OR MADE, THE NAME AND ADDRESS OF EACH PERSON WHO HAS MADE SUCH CONTRIBUTION AND THE AMOUNT OF EACH SPECIFIC CONTRIBUTION AND EXPENDITURE ACCEPTED OR MADE BY THE COMMITTEE.

(II) AT SUCH TIME AS ANY ISSUE COMMITTEE THAT BEGAN AS A SMALL-SCALE ISSUE COMMITTEE ACCEPTS OR MAKES CONTRIBUTIONS OR EXPENDITURES IN AN AGGREGATE AMOUNT DURING ANY APPLICABLE ELECTION CYCLE THAT EXCEEDS FIVE THOUSAND DOLLARS, THE COMMITTEE SHALL MAKE DISCLOSURE OF ANY CONTRIBUTIONS OR EXPENDITURES IT ACCEPTS OR MAKES ON OR AFTER THE DATE ON WHICH SUCH AGGREGATE AMOUNT EXCEEDS FIVE THOUSAND DOLLARS IN COMPLIANCE WITH ALL APPLICABLE REQUIREMENTS UNDER THIS ARTICLE 45 PERTAINING TO THE DISCLOSURE BY AN ISSUE COMMITTEE OF ITS CONTRIBUTIONS OR EXPENDITURES ACCEPTED OR MADE. (III) WITHIN FIFTEEN DAYS OF A SMALL-SCALE ISSUE COMMITTEE BECOMING SUBJECT TO THE APPLICABLE REQUIREMENTS GOVERNING AN ISSUE COMMITTEE UNDER THIS ARTICLE 45, THE COMMITTEE THROUGH ITS REGISTERED AGENT SHALL REPORT THIS CHANGE IN THE COMMITTEE’S STATUS TO THE SECRETARY OF STATE.

(8) (a) ANY EXPENDITURE OR SPENDING [HB42] ON A COVERED COMMUNICATION THAT IS CONTROLLED BY OR COORDINATED WITH A CANDIDATE OR CANDIDATE’S AGENT OR A POLITICAL PARTY IS CONSIDERED BOTH A CONTRIBUTION BY THE MAKER OF THE EXPENDITURE[HB43]  OR SPENDING, AND AN EXPENDITURE BY THE CANDIDATE COMMITTEE.

[“Expenditure or spending”: Is there a reason for two seemingly identical words – perhaps an arcane constitution?

This instance of “maker of the expenditure”  makes more sense than what is in Section 2 (11) above.]

(b) FOR PURPOSES OF THIS SUBSECTION (8), “COVERED COMMUNICATION” INCLUDES:

(I) A COMMUNICATION THAT EXPRESSLY ADVOCATES FOR THE ELECTION OR DEFEAT OF A CANDIDATE;

 (II) AN ELECTIONEERING COMMUNICATION AS DEFINED IN SECTION 2 (7) OF ARTICLE XXVIII OF THE STATE CONSTITUTION AND SECTION 1-45-103 (9)[HB44] , OR REGULAR BIENNIAL ELECTIONEERING COMMUNICATION AS DEFINED IN SECTION 1-45-103 (15.5); AND

[This is a redundant citation of the state constitution.]

(III) A COMMUNICATION BY A POLITICAL ORGANIZATION THAT INFLUENCES OR ATTEMPTS TO INFLUENCE THE SELECTION, NOMINATION, ELECTION, OR APPOINTMENT OF A CANDIDATE TO PUBLIC OFFICE.

SECTION 5. In Colorado Revised Statutes, amend 1-45-108.3 as follows:

1-45-108.3. Issue committees -disclaimer. (1) An issue committee A CANDIDATE COMMITTEE, POLITICAL COMMITTEE, ISSUE COMMITTEE, SMALL DONOR COMMITTEE, POLITICAL ORGANIZATION, POLITICAL PARTY, OR OTHER PERSON making an expenditure in excess of OR SPENDING MORE THAN one thousand dollars PER CALENDAR YEAR on a communication that supports or opposes a statewide ballot issue or ballot question MUSTBEDISCLOSED UNDER ARTICLE XXVIIIOFTHE STATE CONSTITUTION OR UNDER THIS ARTICLE 45 OR SUPPORTS OR OPPOSES A BALLOT ISSUE OR BALLOT QUESTION, and that is broadcast, by television or radio, printed, in a newspaper or on a billboard, directly mailed, or delivered; by hand to personal residences, PLACED ON A WEBSITE, STREAMING MEDIA SERVICE, OR ONLINE FORUM FOR A FEE; or THAT IS otherwise distributed shall disclose INCLUDE in the communication produced by the expenditure, the name of the issue committee making the expenditure A DISCLAIMER STATEMENT IN ACCORDANCE WITH SUBSECTION (2) OF THIS SECTION.

(2) (a)  The disclaimer STATEMENT required by subsection (1) of this section shall be printed on the communication clearly and legibly in a conspicuous manner MUST CONFORM TO THE REQUIREMENTS SPECIFIED IN SECTION 1-45-107.5 (5) FOR CONTENT, SIZE, DURATION, AND PLACEMENT.

(b) If the communication is broadcast on radio, the disclaimer shall be spoken at the beginning or end of the communication.

(c) (I) If the communication is broadcast on television, the disclaimer shall be written or spoken at the beginning or end of the communication. If the disclaimer is written, it shall appear for at least four seconds of any communication broadcast on television.

(II) The written disclaimer required by subparagraph (I) of this paragraph (c) shall appear in the communication in a conspicuous manner.

SECTION 6. Applicability. This act applies to the portion of any election cycle or to the portion of the calendar year remaining after the effective date of this act and for any election cycle or calendar year commencing after such effective date, whichever is applicable.

SECTION 7. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.


 [HB1]Accepted plus made? Accepted or separately accounted, made?

 [HB2]Meaning multiple somehow associated small-scale issue committees actually aren’t? And are they supposed to self-identify and report as issue committees somehow? What does “treated” mean? Will that be left to rulemaking?

 [HB3]I see this paragraph is largely copied from the existing statutory definition. Now would be a great time to update the language to make it clearer.

 [HB4]Means “the same”? Could be written: “support or oppose a ballot measure in common” but still unnecessarily arcane.

 [HB5]“including”?

 [HB6]“including”?

 [HB7]“substantially” means? Who defines?

 [HB8]Is  a “regular biennial school electioneering communication”  an electioneering communication? If so, then “including” instead of “or”.

 [HB9]The definition of the “regular biennial school electioneering communication is a hideously complex variation and here it is: (15.5)  “Regular biennial school electioneering communication” has the same meaning as “electioneering communication” as defined in section 2 (7) of article XXVIII of the state constitution; except that, for purpose of the definition of regular biennial school electioneering communication only, “candidate” as referenced in section 2 (7)(a)(I) of said article means a candidate in a regular biennial school election and the requirements specified in section 2 (7)(a)(II) mean a communication that is broadcast, printed, mailed, delivered, or distributed within sixty days before a regular biennial school election. Except as otherwise specified in this subsection (15.5), the definition of “regular biennial school electioneering communication” is the same as that of “electioneering communication”.

 [HB10]“In” means what? Means the “person” is now a “candidate”?

 [HB11]This “maker of the expenditures” appears to be the “independent expenditure committee”. Better to make clear.

 [HB12]This means possibly that “expenditures” prior to the announcement of candidacy are to be retroactively included in “candidate committee” expenditures? If so the retroactivity ought to be made more clear.

 [HB13]Two “if”s separated by the subject and action can only be confusing.”If… and if” would be better.

 [HB14]Only because you can’t be a citizen of a foreign corporation is this a clear statement. Section 2(5.3) is much more clear with numbered bullet points.

 [HB15]Any “payment for a” communication? Or “expenditure in connection with”?

 [HB16]Unclear why this is here and to which items it applies- only to “online forum”?

 [HB17]Means communicated both in private and or in public?

 [HB18]Is this “person” to include non-natural persons, foreign governments, etc?  Can a “foreign government” be a “person”? “Person” is used in many places in the next lines.

 [HB19]Does this include robocalls and emails? It probably needs definition.

 [HB20]Note that on websites, size can be infinitesimal – e.g. a link can be as small as one pixel. Rules will need to be specific.

 [HB21]“In aggregate”? or “in total” seems to be needed.

 [HB22]This implies that the aggregate total is reset to zero, but that is very unclear- do subsequent contributions also get aggregated against the same threshold?

 [HB23]“Covered organizations” might not be in “business”.

 [HB24]“Each applicable”?

 [HB25]Intended not to include partnership, LLC, trust etc.? Why?

 [HB26]5 instances of “entity in one sentence. Are they all the same “entity”? Confusing..

 [HB27]Including partnership, LLC, trust etc.? If so then “managers”? This definition is limited to “corporation”.

 [HB28]Very difficult to regulate, and may necessitate litigation. However, (C) attempts to address this, but that paragraph talks about redaction rather than inclusion.

 [HB29]Does this “redact” mean not “include” as in (B) above? What does “redact” mean here?

 [HB30]Unfortunately this section 14 seems to contain two types of affirmations that will need to be disambiguated. This here is the second kind of affirmation of justification for exemption from the first kind of affirmation. This will lead to confusion.

 [HB31]Which “affirmation” does this refer to, or perhaps both. The “affirmation” of the first kind deserves more than just subject to public review – it deserves a deliberate disclosure not yet required here.

 [HB32]And the applicable adjustment of the report or”affirmation of the first kind” shall then be made?

 [HB33]If the “covered organization” is in the business of electioneering communications, this seems to be in conflict with the intention of the bill. Perhaps “non-political trade or business”?

 [HB34]This word might require replacement, or expansion in a definition.

 [HB35]This looks like a loophole if the contract is for services of “electioneering communication”. See also (V) above. Is this intended to exempt common carriers such as TV stations, phone companies for robocalls? It could be more specific.

 [HB36]“report and disclosure” – (1)(a)(I) requires a report.

 [HB37]“Registration” not “reporting”

 [HB38]“received and separately made”?

 [HB39]Since this results in a quantitative comparison to a threshold it is important to clarify if this is “accepts plus makes in aggregate” even if the same dollars are first accepted and then made into contributions – meaning a double booking of the same funds.

 [HB40]Is it clear when this begins and ends?

 [HB41]Why “otherwise”?

 [HB42]Reason for two seemingly identical words?

 [HB43]This one makes more sense than what is in Section 2 (11) above

 [HB44]This is a redundant citation of the state constitution.

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