Independence Institute v. Coffman
Stifling Political Speech: Challenging Colorado's Campaign Finance

Nationwide, campaign finance laws, which many hope would be used to “clean up” elections, are instead being widely abused to stifle the speech of those who are unpopular with the political establishment. In Colorado, the Independence Institute, a free market non-profit think tank, faced charges under the state’s campaign finance laws for merely speaking out on statewide ballot referenda.

During the 2005 election season, the Independence Institute, a long-time proponent of lower taxes and fiscal responsibility, commented extensively on Referenda C & D, which it believed would raise taxes and increase government spending. After running a series of radio ads criticizing the referenda, the Institute found itself the subject of a complaint filed with the Colorado Secretary of State claiming that it was not an educational non-profit, but an “issue committee” that was “campaigning” against the referenda and had violated campaign finance laws by failing to register with the State, report all expenditures and contributions, and disclose the identities of its supporters.

Although the complaint was ultimately thrown out as unwarranted, after experiencing firsthand how these laws can be used as a political weapon to stifle free speech and impose steep financial and opportunity costs on dissenters, the Independence Institute filed suit challenging the vague language of Colorado’s campaign finance laws as well as their disclosure and reporting requirements that chill political speech and association. The Institute is also challenging the laws’ requirement that contributors’ identities be disclosed as a violation of individuals’ right to anonymous speech and political participation.

Those who claim campaign finance laws will not erode political speech and participation or that they regulate only “money” but not speech either do not understand the operations of these laws, or, worse, do not care. The Independence Institute’s case illustrates this point: if the reason to regulate campaign finance is to prevent the corruption of politicians, then regulating ballot initiative campaigns is pointless because ballot initiative elections are about voting for issues, not politicians; if there is no politician involved, then there is no one to be “corrupted” by the temptation to trade political favors for campaign contributions. The only purpose these regulations serve, therefore, is to limit the ability of citizens to speak out about ballot issues and to restrict the public’s participation in issue campaigns.