Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Colorado *

Secretary of State Mike Coffman is automatically substituted for former Colorado

Secretary of State Gigi Dennis as the Defendant-Appellant/Cross-Appellee in this

case.

F I LED

United States Court of Appeals

Tenth Circuit

August 21, 2007

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

COLORADO RIGHT TO LIFE

COMMITTEE, INC.,

Plaintiff-Appellee/CrossAppellant,

v.

MIKE COFFMAN, in his official *

capacity as Colorado Secretary of

State,

Defendant-Appellant/CrossAppellee.

_______________________________

COLORADO COMMON CAUSE and

LEAGUE OF WOMEN VOTERS OF

COLORADO.

Amici Curiae in support of

Defendant- Appellant/CrossAppellee.

Nos. 05-1519 and 05-1538
2

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 03-cv-1454-WDM-PAC)

Maurice G. Knaizer (with Monica Márquez and John W. Suthers, Attorney

General for the State of Colorado, on the briefs), Denver, Colorado for DefendantAppellant/Cross-Appellee.

James Bopp, Jr. (with Richard E. Coleson on the briefs), Bopp, Coleson &

Bostrom, Terre Haute, Indiana for Plaintiff-Appellee/Cross-Appellant.

Martha M. Tierney, Kelly/Haglund/Garnsey+Kahn LLC, Denver, Colorado, filed a

brief on behalf of Amici Curiae.

Before HENRY, ANDERSON, and HOLMES, Circuit Judges.

HENRY, Circuit Judge.

Article XXVIII of the Colorado Constitution is a citizen-passed campaign

finance reform amendment designed to limit the influence of certain types of

corporations’ general funds on state elections. Colorado Right to Life Committee

(CRLC), a non-profit ideological corporation, sought declaratory and injunctive

relief against the Colorado Secretary of State, arguing that Article XXVIII

contained provisions that interfered with its traditional communications and

activities and, thereby, violated its First and Fourteenth Amendment rights under

the United States Constitution. The district court granted summary judgment in

part to CRLC and in part to the Secretary. The Secretary now appeals, and CRLC
1

The people of the state of Colorado hereby find and declare . . . that in recent

years the advent of significant spending on electioneering communications, as

defined herein, has frustrated the purpose of existing campaign finance requirements;

that independent research has demonstrated that the vast majority of televised

electioneering communications goes beyond issue discussion to express electoral

advocacy; that political contributions from corporate treasuries are not an indication

of popular support for the corporation’s political ideas and can unfairly influence the

(continued...)

3

cross-appeals. 

We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. Specifically,

we hold that the challenged sections of Article XXVIII regulating corporate

expenditures and electioneering communications are unconstitutional as applied to

CRLC because CRLC meets Supreme Court-approved exemption requirements for

a voluntary ideological corporation that seeks to engage in political speech. See

FEC v. Mass. Citizens for Life, 479 U.S. 238, 259-60 (1986) (plurality opinion)

(“MCFL”). In addition, we conclude that Article XXVIII’s definition of a

political committee is unconstitutional as applied to CRLC because it fails to

incorporate Buckley v. Valeo’s “major purpose” test. 424 U.S. 1, 79 (1976). 

Finally, we decline CRLC’s invitation to reconsider its remaining facial

challenges to various sections of Article XXVIII.

I. BACKGROUND

A. Article XXVIII of the Colorado Constitution

In November 2002, Colorado voters, seeking to limit the influence of money

on state elections, passed Amendment 27. Amendment 27 amended Article 1
(...continued) 1

outcome of Colorado’s elections; and that the interests of the public are best served

by limiting campaign contributions, encouraging voluntary campaign spending

limits, providing full and timely disclosure of campaign contributions, independent

expenditures, and funding electioneering communications and strong enforcement

of campaign finance requirements.

Colo. Const. art. XXVIII, § 1.

 “Expressly advocating” is not defined in Article XXVIII. The Buckley 2

Court defined express advocacy as “express terms advocat[ing] the election or

defeat of a clearly identified candidate for federal office . . . [and advertisements

that use terminology] such as ‘vote for’ ‘elect,’ ‘support,’ ‘cast your ballot for,’

‘[Candidate’s name] for Congress,’ ‘vote against,’ ‘defeat,’ [and] ‘reject.’” 424

U.S. at 44 & n.52. “Buckley adopted the ‘express advocacy’ requirement to

distinguish discussion of issues and candidates from more pointed exhortations to

vote for particular persons.” MCFL, 479 U.S. at 249.

4

XXVIII of the Colorado Constitution to prohibit corporations from using their

general funds to make contributions, expenditures, and electioneering

communications. Section 3(4)(a) of Article XXVIII reads:

It shall be unlawful for a corporation or labor organization to make

contributions to a candidate committee or a political party, and to make

expenditures expressly advocating the election or defeat of a candidate;

except that a corporation or labor organization may establish a political

committee or small donor committee which may accept contributions or

dues from employees, officeholders, shareholders, or members.2

Section 6(2) further reads:

Notwithstanding any section to the contrary, it shall be unlawful for a

corporation or labor organization to provide funding for an

electioneering communication; except that any political committee or

small donor committee established by such corporation or labor
An electioneering communication is defined as 3

any communication broadcasted by television or radio, printed in a

newspaper or on a billboard, directly mailed or delivered by hand to

personal residences or otherwise distributed that:

(I) Unambiguously refers to any candidate; and

(II) Is broadcasted, printed, mailed, delivered, or distributed within 

 thirty days before a primary election or sixty days before a 

 general election; and

(III) Is broadcasted to, printed in a newspaper distributed to, mailed 

 to, delivered by hand to, or otherwise distributed to an 

 audience that includes members of the electorate for such 

 public office.

Colo. Const. art. XXVIII, § 2(7)(a).

5

organization may provide funding for an electioneering communication.3

However, following the United States Supreme Court’s teachings in MCFL,

Article XXVIII and Secretary of State Rule 4.13 created an exception to the

prohibition for corporations that meet three requirements. Section 3(4)(b)

provides:

The prohibition contained in paragraph (a) of this subsection (4) shall

not apply to a corporation that:

(I) Is formed for the purpose of promoting political 

 ideas and cannot engage in business activities; and

(II) Has no shareholders or other persons with a claim 

 on its assets or income; and

(III) Was not established by and does not accept 

 contributions from business corporations or labor 

 organizations.
6

Colo. Const. art. XXVIII, § 3(4)(b). Similarly, Rule 4.13, the Secretary of State

Rules’ exception to § 6(2) reads:

Article XXVIII § 6(2), concerning the prohibition against funding by

corporations and labor organizations for electioneering communications,

shall not apply to any corporation that: 

a. Was formed for the purpose of promoting political ideas and cannot

 engage in business activities; 

b. Has no shareholders with a claim on its assets or other income; and

c. Was not established by, and does not accept contributions from 

 business corporations or labor organizations. 

Colo. Sec. of State, Rules Concerning Campaign and Political Finance, Rule 4.13. 

We have labeled the exception established by § 3(4)(b) and Rule 4.13 the “MCFL

exemption.” 

A corporation that meets these criteria may use its general corporate

treasuries to make expenditures, contributions, and electioneering

communications. However, the Secretary maintains that whether or not a

corporation meets the MCFL exemption, it must still register as a political

committee if it makes or accepts contributions or expenditures in excess of $200 to

support or oppose the nomination or election of candidates. Colo. Const. art.

XXVIII, § 2(12)(a) (defining “political committee” as “any person, other than a

natural person, or any group of two or more persons, including natural persons that

have accepted or made contributions or expenditures in excess of $200 to support

or oppose the nomination or election of one or more candidates”); see id. § 7
7

(referring to disclosure requirements relevant to political committees and other

groups, set forth in Colo. Rev. Stat. § 1-45-108 or any successor section).

Furthermore, if a nonprofit ideological corporation (or “any person”) funds

electioneering communications exceeding $1,000 per year from its general

corporate treasuries, it too must file applicable reports. Section 6(1) of Article

XXVIII details these requirements, while § 6(2) prohibits corporate funding of

electioneering communications:

Any person who expends one thousand dollars or more per calendar year

on electioneering communications shall submit reports to the secretary

of state in accordance with the schedule currently set forth in [Colo.

Rev. Stat. §] 1-45-108(2) . . ., or any successor section. Such reports

shall include spending on such electioneering communications, and the

name, and address, of any person that contributes more than two

hundred and fifty dollars per year to such person described in this

section for an electioneering communication. In the case where the

person is a natural person, such reports shall also include the occupation

and employer of such natural person. The last such report shall be filed

thirty days after the applicable election.

Notwithstanding any section to the contrary, it shall be unlawful for a

corporation or labor organization to provide funding for an

electioneering communication; except that any political committee or

small donor committee established by such corporation or labor

organization may provide funding for an electioneering communication.

Colo. Const. art. XXVIII, § 6.

At issue here is whether CRLC is subject to Article XXVIII’s reporting

requirements and whether §§ 3(4) (banning corporations from making

expenditures that expressly advocate the election or defeat of a candidate), 6(2)

(banning corporations from funding electioneering communications), and (2)(12)
8

(defining political committee) of Article XXVIII are unconstitutional as applied to

CRLC. We also discuss CRLC’s contention that these provisions, along with §

2(7), are facially vague and overbroad. 

B. Colorado Right to Life Committee

We first summarize the undisputed facts regarding CRLC, drawn largely

from the district court’s order. See Colo. Right to Life Comm., Inc. v. Davidson,

395 F. Supp. 2d 1001, 1007-09 (D. Colo. 2005). CRLC is a tax-exempt

organization under 26 U.S.C. § 501(c)(4) and has a policy of not contributing to,

accepting contributions from, or engaging in express advocacy regarding, political

parties or candidates. Likewise, it is not associated with any political candidate,

political party, or campaign committee, and is not aware of ever receiving any

donations at the request of, or solicited by, a political candidate, a political party

or elected official. It has several chapters throughout the State of Colorado. 

CRLC’s policy is not to engage in express advocacy or make direct in-kind

contributions. 

CRLC’s corporate organizational documents indicate that its purposes are to

(1) promote reverence and respect for human life without regard to condition,

quality, age, race, religion, creed, or color, whether born or unborn; and (2)

educate the community regarding the dangers of abortion, euthanasia, infanticide,

and compulsory sterilization as well as any legislation that would allow the

debasement of or destroy the community’s moral fiber; and (3) encourage a
9

favorable, spiritual, physical, and cultural environment that would improve the

quality of life consistent with these purposes. CRLC seeks to achieve these

purposes by communicating with the public regarding such issues, providing

information about elected officials, and encouraging Colorado citizens to

communicate with their representatives on these issues.

CRLC was not established by a business corporation or labor union, and has

no shareholders or otherwise affiliated persons who would have a claim on its

assets and earnings. CRLC has two types of members: (1) supporting members,

who include anyone who donates money to the organization, unless that person

asks not to be a member; and (2) voting members, who include anyone who

supports CRLC’s objectives, indicates a desire to join CRLC, and pays the

prescribed dues, unless CRLC’s board has waived those dues.

Individual donors nearly exclusively fund CRLC through their paying of

dues. In 2001, CRLC had 1,529 donors, including 15 who gave $200 or more. In

2002, CRLC had 2,101 donors, including 19 who gave $200 or more. In 2003,

CRLC had 1,333 donors, including 7 who gave $200 or more.

CRLC does not have a policy against accepting contributions from business

corporations, and it received $50 in corporate contributions in each of 2001, 2002,

and 2003. Its gross revenues and receipts from membership dues for the same

years were $121,000, $132,000, and $128,000. Additionally, CRLC at one point

participated in a long distance telephone service carrier program in which
 The record indicates that in 2005, CRLC had a similar program with a 4

company called Amerivision.

10

subscribers could designate it as the recipient of a portion of their bills. In 2003, 4

CRLC received $358.30 from its participation in this program.

CRLC also engages in fund-raising activities including the “sale” (via

suggested donations) of “baby feet pins” and bumper stickers at various public

events like the Colorado State Fair. Although there is a suggested donation for the

items, they are often given away. CRLC’s treasurer estimated that CRLC received

approximately $300 per year from these combined activities. Additionally, about a

decade ago, CRLC received income when it rented its mailing list to a political

candidate for a state house seat.

CRLC has not had a political committee or other segregated account since

1986. It has no record of ever receiving donations earmarked for the type of

communications at issue in this case.

CRLC publishes a periodic newsletter, titled The Colorado LifeLight, 

which often mentions the names of candidates and their positions on various life

issues. CRLC distributes The Colorado LifeLight year-round, including within 30

days before the primary election and 60 days before the general election. The

newsletter is sent to members, and sometimes to prospective members. In total,

the mailing is sent to approximately 3,000 to 3,500 recipients.

CRLC also maintains a website that contains a section on politics and law. 
11

Some articles in that section mention candidates and are available to the public

year round, including immediately preceding elections. Additionally, CRLC

admits that it “might” have placed voter guides on its website in the past.

In recent election cycles, CRLC has made communications that

unambiguously referred to candidates within 30 days before primary elections and

60 days before general elections to inform voters of the candidates’ views on

abortion. CRLC spent over $1,000 per year on these communications, which have

included voter guides, articles on its website, radio ads, pre-recorded phone

messages, direct-mail, and email. Some examples include:

• In July 2000, CRLC sent “Rapid Response Cards,” which provided the

responses of primary candidates in five districts to a CRLC survey

regarding life-related issues, to individuals from those five districts in

its mailing list database. In its September newsletter, CRLC noted that

all five pro-life candidates had won and expressed confidence that “the

cards had an impact” on the election results. CRLC spent $200 on this

effort.

• Before the primaries and general elections in 2000, CRLC circulated

the results of its 2000 Candidate Questionnaire, which provided the

responses of some candidates to a variety of abortion and related issues.

• In August 2002, before the state primary election, CRLC arranged for

a pre-recorded phone call to be made to identified pro-life supporters in

Morgan County before a primary election in which Jack Darnell and

Greg Brophy were running. The message compared the views of the two

candidates on abortion, and asked the recipients to urge Mr. Darnell to

“abandon his pro-abortion views” and to “thank” Mr. Brophy for

defending unborn children. CRLC spent $335 on this activity.

• In August 2002, CRLC, in partnership with the Christian Coalition,

sent a form letter to registered pro-life voters in House District 55

comparing the two candidates views on abortion. This letter asked
12

recipients, when voting in the election, to help stop Gayle Berry’s

“extreme pro-abortion agenda,” as well as urging recipients to “thank”

Shari Bjorglund for being “solidly pro-life.” CRLC spent $207 on this

letter. 

• In August 2002, CRLC published The Colorado LifeLight, with a

subtitle “Special Report – 2002 Voter Guide.” Although the front page

was devoted to general information, the remainder of the publication

reported the responses of 42 candidates for state or federal office to a

CRLC questionnaire. In the October/November 2002 Colorado

LifeLight, CRLC urged recipients to vote no on three ballot measures

and published a list of Colorado candidates who had been endorsed by

the National Abortion Rights Action League.

• In the 2002 general election, CRLC ran radio ads on Denver and

Longmont stations comparing the partial-birth abortion views of Fourth

Congressional District candidates State Senator Stan Matsunaka and

Marilyn Musgrave. Around that same time, CRLC also ran other radio

ads encouraging people in Sen. Matsunaka’s district to call him and ask

him to pass the Born Alive Infant Protection Act out of his senate

committee.

C. Procedural Background

Because of Article XXVIII’s prohibitions and regulations, CRLC

determined it would no longer engage in some of the above activities. CRLC

sought declaratory and injunctive relief. The district court reviewed the following

five claims:

(1) whether § 3(4)(a)’s ban on corporate contributions and expenditures

is unconstitutional as applied to CRLC because it is a non-profit

ideological corporation that does not engage in business activities and

receives only insubstantial or de minimis contributions from business

corporations; 

(2) whether § 6(2)’s ban on direct corporate funding for electioneering

and communications is unconstitutional as applied to CRLC, for the

same reason that § 3(4)(a)’s ban is unconstitutional as applied to CRLC;
13

(3) whether § 2(12)’s definition of “political committee” is

unconstitutional on its face and as applied to organizations such as

CRLC that do not have a major purpose of electing candidates;

(4) whether §§ 6 and 2(7), dealing with “electioneering

communications” are impermissibly vague and overbroad and cannot be

constitutionally applied to CRLC’s communications not directly or

indirectly advocating the election or defeat of any candidate; and

(5) whether § 3(4)(a)’s ban on corporate expenditures is unconstitutional

because it is vague and overbroad.

Both parties sought summary judgment. The district court ruled “as

narrowly as possible,” and addressed CRLC’s as-applied challenges first. 395 F.

Supp. 2d at 1010. The district court granted each motion in part, determining that

Article XXVIII §§ 3(4) (banning corporations from making expenditures that

expressly advocate the election or defeat of a candidate) and 6(2) (banning

corporations from funding an electioneering communication) were

unconstitutional as applied to CRLC because it is exempt from such restrictions

under the principles of MCFL. The district court also found that § 2(12)’s

definition of “political committee” was unconstitutional as applied to CRLC

because it failed to include Buckley’s “major purpose” test. 

The district court rejected, or declined to reach, CRLC’s remaining facial

challenges. Specifically, it rejected CRLC’s vagueness and overbreadth

challenges to § 6(1) (outlining reporting requirements for any person who expends

more than $1,000 per calendar year on electioneering communications), noting

that “[a] statute may not be invalidated simply because some persons’ arguably
14

protected conduct may or may not be caught or chilled by the statute.” Id.

(internal quotation marks omitted). Similarly, it rejected CRLC’s vagueness

challenge to § 2(7)’s definition of “electioneering communications” because

“CRLC has not demonstrated that [§ 2(7) is] impermissibly vague in all of its

applications.” Id. at 1017. 

The district court declined to reach CRLC’s facial challenges to §§ 3(4)

(banning corporations from making expenditures that expressly advocate the

election or defeat of a candidate), 6(2) (banning corporations from funding an

electioneering communication), and § 2(12) (defining political committee)

because it had already granted CRLC a narrower remedy when it found these

sections unconstitutional as applied to CRLC.

II. DISCUSSION

The Secretary challenges the district court’s grant of summary judgment to

CRLC and enjoinment of his enforcement of certain provisions of Article XXVIII

against CRLC. Specifically, the Secretary disputes the district court’s rulings that

(1) § 3(4) (which bans corporations from making expenditures that expressly

advocate the election or defeat of a candidate) is unconstitutional as applied to

CRLC because CRLC engaged only in de minimis business activities and received

only de minimis contributions from business corporations; (2) § 6(2) (which bans

corporations from providing funding for electioneering communications) is

unconstitutional as applied to CRLC for the same reason; and (3) § 2(12) (defining
CRLC also argues that § 3(4)’s prohibition against a corporations making 5

expenditures expressly advocating the election of defeat of a candidate, should be

declared unconstitutional both as applied and facially void for vagueness for the

additional reason that this section does not satisfy Buckley’s express advocacy

requirement. Aple’s Br. at 46-48. CRLC acknowledges that it did not raise this

“express advocacy” as-applied challenge in its complaint. Id. at 46-47. We agree

with the Secretary that at most CRLC argued before the district court that § 3(4)

should be declared facially invalid. The district court declined to address CRLC’s

facial challenge to this section, having found § 3(4) unconstitutional as applied to

CRLC because CRLC was an exempt MCFL entity. Because we agree with the

district court’s approach, and because we generally “decline to consider issues

first raised on appeal,” we will not address this belated argument. Sussman v.

Patterson, 108 F.3d 1206, 1210 (10th Cir. 1997).

 We must first briefly address the Secretary’s threshold argument that 6

CRLC lacks standing to challenge § 2(12), which defines a political committee,

because CRLC has not established either a segregated fund or a political

committee.

(continued...)

15

political committee) is unconstitutional as applied to CRLC for employing a

trigger of $200 without consideration of whether the organization’s “major

purpose” is the nomination or election of candidates as required by Buckley. We

must reject the Secretary’s challenges.

In its cross-appeal, CRLC challenges the facial validity of three sections: §§

6(2) (banning corporations from funding electioneering communications), 2(7)

(defining electioneering communications), and 2(12) (defining political

committee). Because we agree with the district court’s determination that CRLC 5

is an exempt MCFL entity, we need not address CRLC’s challenges to §§ 6(2) and

2(7). As to its facial challenge to § 2(12), we agree with the district court that we

need not reach this contention. 

6
(...continued) 6

Under Article III, standing requires a party to show actual injury, a causal

relation between that injury and the challenged conduct, and the likelihood that a

favorable decision by the court will redress the alleged injury. Lujan v.

Defenders of the Wildlife, 504 U.S. 555, 560-61 (1992). Independent campaign

expenditures constitute “political expression at the core of our electoral process

and of the First Amendment freedoms.” Buckley, 424 U.S. at 39 (internal

quotation marks omitted). The mere fact that CRLC is a corporation does not

remove its speech from the protective ambit of the First Amendment. See, e.g.,

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 777 (1978) (“The inherent

worth of the speech in terms of its capacity for informing the public does not

depend upon the identity of its source, whether corporation, association, union, or

individual.”). There is no doubt that requiring corporations to make independent

expenditures only through segregated funds, such as political or donor

committees, burdens corporate freedom of expression. MCFL, 479 U.S. at 252. 

Here, in addition to disclosure requirements, the statute provides various

penalties, see Colo. Const. art. XXVIII, § 10, and at no point in this litigation has

the Secretary suggested that he will not seek enforcement of these penalties. 

Because the Secretary has indicated unequivocally his intent to prosecute

CRLC, CRLC has suffered the constitutionally sufficient injury of self-censorship

through the chilling of protected First Amendment activity, rendering its asapplied challenge to § 2(12), and, for that matter, its other challenges to Article

XXVIII, justiciable. CRLC also suffers Article III injury when it must either

make significant changes to its operations to obey the regulation, or risk an

investigation and citation. The Secretary rightfully does not challenge the

CRLC’s standing on other grounds, and we hold that CRLC has standing to

challenge portions of Article XXVIII because it undisputedly meets the causation

and redressibility prongs of the standing test. 

Accordingly, because the challenged sections of Article XXVIII infringe on

First Amendment rights, the Secretary bears the burden of proving they are

constitutional as applied to CRLC.

16

A. The Secretary’s Appeal

We review the district court’s grant of summary judgment de novo, applying

the same standards used by the district court. Homans v. City of Albuquerque, 366

F.3d 900, 903 (10th Cir. 2004). “We also review the district court’s findings of
17

constitutional fact in a First Amendment claim and conclusions of law de novo. 

Because this decision implicates First Amendment freedoms, we perform an

independent examination of the whole record in order to ensure that the judgment

protects the rights of free expression.” Faustin v. City & County of Denver, 423

F.3d 1192, 1195-96 (10th Cir. 2005) (internal citation omitted).

Plaintiffs may bring two types of First Amendment challenges to a

government’s policy, facial and as-applied. A facial challenge considers the

restriction’s application to all conceivable parties, while an as-applied challenge

tests the application of that restriction to the facts of a plaintiff’s concrete case. 

Like the district court, we consider the disposition of CRLC’s as-applied

challenges first, and then turn to its facial challenges below, in section II.B.

In an as-applied challenge in the context of campaign finance laws, “limits

on political expenditures deserve closer scrutiny than restrictions on political

contributions.” FEC v. Colo. Republican Fed’l Campaign Comm., 533 U.S. 431,

440 (2001); see FEC v. Wisc. Right to Life, Inc., 127 S. Ct. 2652, 2664 (2007)

(“WRTL”) (“Because [the statute] burdens political speech, it is subject to strict

scrutiny.”); Buckley v. American Const’l Law Found., Inc., 525 U.S. 182, 207

(1999) (“When a State’s election law directly regulates core political speech, we

have always subjected the challenged restriction to strict scrutiny and required that

the legislation be narrowly tailored to serve a compelling governmental interest.”). 

The parties do not dispute that this case involves Article XXVIII’s restrictions on
In his opening brief, the Secretary insists that CRLC must establish, in its 7

as-applied challenges, that the state law is unconstitutional as applied to it beyond

a reasonable doubt. The Secretary’s propositions are accurate, except in the

instance of a law, like Article XXVIII, that might “infringe[] on the exercise of

First Amendment rights.” Ass’n of Cmty. Orgs. for Reform Now v. Municipality of

Golden, 744 F.2d 739, 744 (10th Cir. 1984). The Secretary reluctantly concedes

this point in his reply brief, and acknowledges that in such a case, as here, “its

proponent bears the burden of establishing its constitutionality.” Id. (emphasis

supplied); WRTL, 127 S. Ct. at 2664 (“Under strict scrutiny, the Government must

prove that applying [the statute] to [the organization’s] ads furthers a compelling

interest and is narrowly tailored to achieve that interest”). We appreciate the

Secretary’s candor, even if a bit belated.

18

political expenditures, and that political expenditures are subject to strict 7

scrutiny. Homans, 366 F.3d at 906 (concluding “the standard for expenditure

limits operates identically to strict scrutiny review”). Hence, “to be upheld, . . .

the campaign-expenditure restrictions must be both narrowly tailored and

necessary to serve a compelling state interest.” Id. (internal citations omitted); see

WRTL, 127 S. Ct. at 2664.

1. As-applied challenge to Article XXVIII §§ 3(4) (banning

corporations from making expenditures that expressly advocate the

election or defeat of a candidate) and 6(2) (banning corporations from

funding an electioneering communication) 

The district court concluded that CRLC is exempt from both § 3(4)’s ban on

corporate expenditures that expressly advocate the election or defeat of a

candidate and § 6(2)’s ban on a corporation’s funding of electioneering

communication because CRLC receives only de minimis contributions from

business corporations. The Secretary argues that any business contribution
19

forecloses exemption from §§ 3(4) and 6(2).

a. MCFL exemption

In MCFL, the Federal Election Commission (“FEC”) charged MCFL, a

nonprofit membership corporation created to oppose abortion rights, with

violating the Federal Election Campaign Act of 1971 (“FECA”), 86 Stat. 11, as

amended, 2 U.S.C. § 441b, by distributing a voter guide in the 1978 congressional

election. 479 U.S. at 244-45. When MCFL refused to pay a fine, the FEC sued. 

MCFL claimed FECA abridged its First Amendment rights, and the Supreme Court

agreed. The Court first reiterated that independent expenditures could not be

regulated as strictly as contributions. Id. at 259-60. Independent expenditures are

similar to pure issue discussion and therefore remain far removed from the valid

state interest of preventing election corruption. Id.

The Court also held that FECA could be applied to business corporations

and other entities that presented some danger of “unfair deployment of wealth for

political purposes.” Id. at 259. “Direct corporate spending on political activity

raises the prospect that resources amassed in the economic marketplace may be

used to provide an unfair advantage in the political marketplace.” Id. at 258. The

Court observed that the concerns motivating prohibition of corporate political

spending were absent in regard to MCFL, however, because “[v]oluntary political

associations do not suddenly present the specter of corruption merely by assuming

the corporate form.” Id. at 263. In delineating this exemption, the Court cited
 Specifically, the Secretary notes that CRLC “does not have a policy 8

against engaging in business activities and on occasion has sold its telephone

list.” Aplt’s Br. at 28. The Secretary also states that CRLC “has generated a

small income stream by selling its mailing list.” CRLC clarifies that this “sale”

was a one-time rental of its mailing (and not telephone) list for a small

unspecified amount. Id. at 10; Aple’s Br. at 3. The Secretary does not dispute

that this isolated transaction generated minimal income. We hold that this

activity does not suggest CRLC engages in business activities. See Day v.

Holahan, 34 F.3d 1356, 1364 (8th Cir. 1994) (rejecting state’s argument

concerning a putative MCFL nonprofit corporation’s business activities that

included the regular rental of mailing list and selling of advertisements in its

newsletter that generated minimal income).

Similarly, CRLC’s minimal sales of “baby feet” pins and bumper stickers

(continued...)

20

three “essential” features of MCFL:

(1) the entity was formed for the purpose of promoting political ideas,

and did not engage in business activities; 

(2) it had no shareholders or others with a claim to its assets or

earnings; and

(3) it was not formed by a corporation, and had a policy against

accepting corporate contributions.

Id. at 263-64. 

As noted above, Colorado’s campaign finance amendment includes an

exemption for such corporations. See Colo. Const. art. XXVIII, § 3(4)(b). 

Although the prohibition on corporate funding of electioneering communications

does not explicitly contain the same exemption, the Secretary promulgated Rule

4.13, which construes § 6(2) to exclude MCFL corporations.

The parties do not dispute that CRLC satisfies the second prong. Although

the Secretary does not concede that CRLC has satisfied the first prong, he focuses 8
(...continued) 8

do not preclude it from qualifying as an MCFL-exempt corporation. Such

activities cannot be classified as “business activities.” See MCFL, 479 U.S. at

263 (“If political fundraising events are expressly denominated as requests for

contributions that will be used for political purposes, . . . these events cannot be

considered business activities.”). Indeed, MCFL itself engaged in various

fundraising activities such as garage sales, bake sales, dances, raffles, and

picnics. See id. at 242.

21

his arguments on appeal on the third MCFL prong. It is the third prong that poses

the rub: CRLC admits that it does not have a policy against accepting

contributions, and that it has accepted contributions—in the amount of about $50

per year. In response, the Secretary “argues that because the MCFL Court deemed

the characteristics ‘essential,’ the Court created a bright line allowing the

government to regulate the political expenditures of any corporation as long as it

does not share the precise MCFL characteristics.” 395 F. Supp. 2d. at 1012. The

district court refused to adopt the Secretary’s unbending argument that “Colorado

may prohibit direct political expenditures by an advocacy corporation such as

CRLC if it accepts de minimis corporate contributions.” Id.

The Secretary acknowledges that § 3(4)(b) and Rule 4.13 comport with

MCFL. But, he argues that by allowing an exception for de minimis corporations,

the district court diverts the analysis to a review of a corporation’s day-to-day

actions. As a practical matter, “[t]he courts and the public do not have the

resources to conduct such reviews.” Aplt’s Br. at 27. Because “[e]ven minimal

expenditures can have a significant impact,” the Secretary argues that the district
22

court’s approach is impractical and invites corruption. Id. 

We disagree with the Secretary’s analysis for substantially the same reasons

as the district court. The district court relied in part on the reasoning of every

other circuit to have addressed this issue, noting that if corporate contributions

made up a minimal part of an organization’s revenue, the MCFL exemption

applies. See FEC v. Nat’l Rifle Ass’n, 254 F.3d 173, 192 (D.C. Cir. 2001)

(holding that sponsorship of non-political activities, provision of non-political

goods and services such as magazines and accident insurance to members, lack of

policy against corporate contributions, and actual receipt of up to $1,000 in

corporate contributions did not turn an incorporated advocacy group “into a

potential conduit for corporate funding of political activity”); N.C. Right to Life,

Inc. v. Bartlett, 168 F.3d 705, 714 (4th Cir. 1999) (lack of policy against corporate

donations and receipt of up to a “modest percentage [8%] of revenue” from

corporations did not prevent corporation from claiming MCFL exemption); FEC v.

Survival Educ. Fund, Inc., 65 F.3d 285, 293 (2d Cir. 1995) (stating that “a

nonprofit political advocacy corporation, which in fact receives no significant

funding from unions or business corporations, does not surrender its First

Amendment freedoms for the want of such a policy” and holding that lack of

policy against corporate contributions and actual receipt of up to 1% of funds from

corporations did not place group outside scope of MCFL exemption); Day v.

Holahan, 34 F.3d 1356, 1363-65 (8th Cir. 1994) (holding that the lack of policy
23

against corporate donations and engaging in “incidental” business activities did

not put group outside MCFL exemption). 

We agree with these courts that MCFL does not establish an immobile set of

parameters. See, e.g., Day, 34 F.3d at 1367 (“The state goes too far in concluding

that the factual findings of MCFL translate into absolutes in legal application.”). 

Instead, they are really factors to determine whether a corporation is more like the

“type of traditional corporatio[n] organized for economic gain,” or the voluntary

political association of MCFL. MCFL, 479 U.S. at 259 (internal quotation marks

omitted); see id. at 263 (“Some corporations have features more akin to voluntary

political associations than business firms, and therefore should not have to bear

burdens on independent spending solely because of their incorporated status.”).

As previously noted, CRLC receives approximately $50 of corporate

funding per year. This figure, “[b]oth as a percentage of its gross income

(significantly less than 1%) and an absolute number, . . . could not “‘have turned

[CRLC] into a potential conduit for corporate funding of political activity.’” 395

F. Supp. 2d. at 1014 (quoting Nat’l Rifle Ass’n, 254 F.3d at 192).

b. Post-MCFL Supreme Court decisions

In response to the district court’s analysis, the Secretary suggests that the

four circuits that have applied the MCFL exemption have misconstrued the Court’s

decision. Recognizing that every circuit that has addressed the issue has allowed

for incidental or de minimis corporate contributions, the Secretary argues that
24

Supreme Court precedent dictates we should apply the MCFL exemption only

sparingly, citing Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990),

FEC v. Beaumont, 539 U.S. 146 (2003), and McConnell v. FEC, 540 U.S. 93

(2003). After reviewing these cases, we conclude that the Secretary’s arguments

are unpersuasive.

(i) Austin v. Michigan Chamber of Commerce

In Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), the

Supreme Court revisited the MCFL exemption when it addressed the Michigan

Chamber of Commerce’s (the “Chamber’s”) as-applied challenge to Michigan’s

Campaign Finance Act. Id. at 655. Initially, the Supreme Court rejected a facial

overbreadth challenge to the law on the grounds that it regulated “closely held

corporations that do not possess vast reservoirs of capital.” Id. at 661. The Court

determined that although some closely held corporations may not have

accumulated significant amounts of wealth, “they receive from the State the

special benefits conferred by the corporate structure and present the potential for

distorting the political process,” which justified the law’s general applicability. 

Id. 

Additionally, the Court held that although the Chamber was a non-profit

ideological corporation, it did not qualify as an MCFL corporation under the three

factors. Id. at 662. First, the Court held that although the Chamber engaged in

political activities, its primary purposes involved business and economic issues in
25

contrast to MCFL’s primary political purpose. Id. Second, the Court observed

that:

Although the Chamber also lacks shareholders, many of its members

may be similarly reluctant to withdraw as members even if they disagree

with the Chamber’s political expression, because they wish to benefit

from the Chamber’s nonpolitical programs and to establish contacts with

other members of the business community.

Id. at 663. 

Accordingly, the Court found that the Chamber’s “members are more

similar to shareholders of a business corporation than to members of MCFL.” Id. 

Finally, the Court remarked that “more than three-quarters of the Chamber’s

members are business corporations, whose political contributions and expenditures

can constitutionally be regulated by the State.” Id. at 664. Consequently,

recognizing the Chamber as an MCFL corporation would circumvent the purpose

of Michigan’s campaign finance law. 

The Secretary suggests that Austin supports his theory that the Court intends

a bright constitutional line to exist between MCFL and non-MCFL entities. In

fact, the Court’s analysis suggests that the Chamber’s challenge to Michigan’s law

failed because it was closer to a traditional corporation than a voluntary political

association. Given CRLC’s close resemblance to a voluntary political association,

much like the one at issue in MCFL, we agree with the district court that CRLC’s

acceptance of de minimis contributions does not transform it into a “potential

conduit for corporate funding of political activity.” 395 F. Supp. 2d. at 1014
26

(quoting Nat’l Rifle Ass’n, 254 F.3d at 192).

(ii) FEC v. Beaumont

 In Beaumont, the plaintiff was an officer of North Carolina Right to Life,

Inc. (“NCRL”), a not-for-profit corporation organized under North Carolina law. 

NCRL’s funding came almost entirely from donations from individual members,

but it also accepted a small amount in corporate donations. NCRL used its general

treasury funds to make both independent expenditures and contributions to

candidates for state office, as allowed by North Carolina law. NCRL challenged

the federal prohibition on contributions from its treasury to candidates for federal

office.

NCRL, like CRLC, based its challenge on MCFL, contending that as an

MCFL entity, NCRL had a constitutionally protected right to make contributions

to candidates. The Fourth Circuit agreed, holding that contributions by such a

group, like independent expenditures, fell within the MCFL exemption to

prohibitions on corporate activity. 

The Supreme Court reversed, noting that the case was correctly

characterized as a contributions, rather than an expenditures, case, and thus

subject to reduced scrutiny. The Court admonished that advocacy corporations

may also raise corruption concerns, as they too “benefit from significant statecreated advantages.” Beaumont, 539 U.S. at 159-60 (internal quotation marks

omitted). The Court asserted that “[n]on-profit advocacy corporations are,
27

moreover, no less susceptible than traditional business companies to misuse as

conduits for circumventing the contribution limits imposed on individuals.” Id.

(emphasis supplied). 

The district court here rejected the Secretary’s reliance on Beaumont

because the case focuses on contributions, not expenditures, and is thus not

analogous. Cf. Beaumont, 539 U.S. at 164 (Kennedy, J., concurring) (MCFL

“contains language supporting the Court’s holding here that corporate

contributions can be regulated more closely than corporate expenditures.”)

(emphasis supplied). Because we focus on Article XXVIII’s restrictions on

expenditures, we agree with this distinction, and reject the Secretary’s argument

on appeal.

(iii) McConnell v. FEC

Third and finally, the Secretary and Amici Curiae Colorado Common Cause

and the League of Women Voters of Colorado, turn to McConnell for support of a

bright-line application of MCFL. They focus specifically on the McConnell

Court’s statement that “[o]ur decision in MCFL related to a carefully defined

category of entities.” 540 U.S. at 210. Standing alone, we acknowledge this

language limits the breadth of MCFL factors; however, the McConnell Court also

distinguished the case before it from MCFL:

MCFL was not established by a business corporation or a labor union,

and it is its policy not to accept contributions from such entities. This

prevents such corporations from serving as conduits for the type of
 We note that in WRTL, the Court chose not to “pass on [an] argument” 9

that WRTL was a nonprofit advocacy group eligible for the MCFL exemption

“because WRTL’s funds for its ads were not derived solely from individual

contributions.” 127 S. Ct. at 2673 n.10. The WRTL dissent notes that WRTL was

unable to take advantage of the MCFL exemption because it “chose[] to serve as a

funnel for hundreds of thousands of dollars from other corporations.” Id. at 2703

(Souter, J., dissenting). Without more, we cannot hold that WRTL impacts our

holding that CRLC’s receipt of de minimis business contributions forecloses

application of the MCFL exemption to it.

 We further note that the amounts of money CRLC received from its 10

participation in Life-Line and similar programs do not qualify as corporate

contributions relevant to the MCFL exemption. This program allowed subscribers

to donate a percentage of their phone bill payment to a nonprofit organization of

their choosing. In 2003, CRLC received a total of $358.30 from this program. As

the Fourth Circuit (and the district court in this case) observed, “while these

contributions may technically come from the phone company, they in fact result

from the decisions of individual phone company customers.” Bartlett, 168 F.3d at

(continued...)

28

direct spending that creates a threat to the political marketplace.” 

Id. at 211 (quotation marks omitted) (emphasis supplied). 

The district court applied the same analysis. It noted that CRLC closely

resembled MCFL’s plaintiff: “both are nonprofit, non-stock corporations sharing

very similar purposes, advocacy activities, and funding mechanisms, including

voluntary donations from members and informal fund-raising sales such as bake

sales, in the case of MCFL, or baby-feet pin sales in the case of CRLC.” 395 F.

Supp. 2d at 1014. The notable difference between the two is that CRLC receives

about $50 of corporate funding per year. This amount represents less than one 9

percent of CRLC’s gross income and does not invite the creation of a political

conduit for corporate funding of political activity. We agree with the district 10
(...continued) 10

714. Accordingly, participation in such a program does not implicate the same

concerns regarding the potential for distorting the political process as direct

corporate contributions do. We also agree with the district court’s observation

that “even if they were corporate contributions, they are likewise de minimis,”

because they would raise CRLC’s total corporate contributions to “approximately

$400, or approximately .3% of its total revenues.” 395 F. Supp. 2d at 1014, n.10.

29

court that the Secretary “has not demonstrated that [§] 6(2)’s infringement upon

CRLC’s protected speech is supported by a compelling justification. . . . For the

same reasons, [§] 3(4)(a), to the extent it proscribes a corporation from making

‘expenditures expressly advocating the election or defeat of a candidate’ except

through a committee, is unconstitutional as applied to CRLC.” Id. at 1014-15.

2. As-applied challenge to Article XXVIII § 2(12)’s definition of “political

committee”

The Secretary next challenges the district court’s grant of summary

 judgment to and enjoinment of his enforcement of § 2(12) against CRLC. Section

2(12)(a) defines political committee as “any person, other than a natural person, or

any group of two or more persons, including natural persons that have accepted or

made contributions or expenditures in excess of $200 to support or oppose the

nomination or election of one or more candidates.” Colo. Const. art. XXVIII, §

2(12)(a). The district court struck down § 2(12) as applied to CRLC. The district

court stated that “Buckley establishes that regulation should be tied to groups

controlled by candidates or which have a ‘major purpose’ of electing candidates.” 

395 F. Supp. 2d at 1020. Because “[i]t [was] not clear whether the facts presented
30

would expose CRLC to ‘political committee regulation,’” the district court

assumed that they did and ruled on an as-applied basis. Id. at 1020 n.22. 

Here, the Secretary argues he can regulate an entity even if it does not have

Buckley’s “major purpose” of nominating, electing, or defeating a candidate. 

Should this court disagree with the Secretary’s proposed broad regulatory powers,

he urges us to construe § 2(12) as incorporating the “major purpose” test, thus still

requiring disclosure. 

a. Federal regulation of political committees: Buckley’s “major

purpose” test

Regulation of “political committees” by campaign finance law began with

the passage of FECA. According to FECA, a “political committee” is any group

that receives “contributions” or makes “expenditures” exceeding $1,000 per year. 

2 U.S.C. § 431(4). A “contribution” or “expenditure” is any gift or payment made

“for the purpose of influencing any election for Federal office.” Id. § 431(8)(A)(i),

(9)(A)(i).

The Supreme Court later added in Buckley, that a group is not a “political

committee” unless its “major purpose” is to influence federal elections. 424 U.S.

at 79. The Court explained that:

The general requirement that “political committees” and candidates

disclose their expenditures could raise similar vagueness problems, for

“political committee” is defined only in terms of amount of annual

“contributions” and “expenditures,” and could be interpreted to reach

groups engaged purely in issue discussion. The lower courts have

construed the words “political committee” more narrowly. To fulfill the
31

purposes of [FECA] they need only encompass organizations that are

under the control of a candidate or the major purpose of which is the

nomination or election of a candidate. Expenditures of candidates and

of “political committees” so construed can be assumed to fall within the

core area sought to be addressed by Congress. They are, by definition,

campaign related.

Id. (footnotes omitted) (emphasis supplied). This construction of the term political

committee as applied to non-candidate organizations has come to be known as the

“major purpose” test. See FEC v. Akins, 524 U.S. 11, 29 (1998) (considering

whether certain of organization’s expenditures were membership communications

in connection with application of the “‘major purpose’” test).

 In MCFL, the Court suggested two methods to determine an organization’s

“major purpose”: (1) examination of the organization’s central organizational

purpose; or (2) comparison of the organization’s independent spending with overall

spending to determine whether the preponderance of expenditures are for express

advocacy or contributions to candidates. 479 U.S. at 252 n.6 (noting that MCFL’s

“central organizational purpose [wa]s issue advocacy, although it occasionally

engage[d] in activities on behalf of political candidates”); see id. at 262 (noting

that “should MCFL’s independent spending become so extensive that the

organization’s major purpose may be regarded as campaign activity, the

corporation would be classified as a political committee”). Thus, under FECA, any

group that (1) spends more than $1,000 in a year, and (2) has as its “major purpose”

the influencing of a federal election, should be considered a political committee. 
32

As a political committee, the group must adhere to certain registration,

organizational, recordkeeping, reporting, and disclosure requirements. See MCFL,

479 U.S. at 254 (“[M]ore extensive requirements and more stringent restrictions . .

. may create a disincentive for such organizations to engage in political speech.”).

b. Colorado’s regulation of political committees

Under Colorado’s definition of political committees, any group that spends

more than $200 a year to support or oppose the nomination or election of one or

more candidates is subject to the State’s various administrative, organizational, and

reporting requirements. In concluding that § 2(12) was unconstitutional as applied

to CRLC, the district court noted that the $200 trigger, standing alone, is

incompatible with a “major purpose” test: “[T]he amount of money an

organization must accept or spend–$200–is not substantial and would, as a matter

of common sense, operate to encompass a variety of entities based on an

expenditure that is insubstantial in relation to their overall budgets.” 395 F. Supp.

2d at 1021. The court added that, under § 2(12)(a), “an entity that spends $200,000

on various non-political activities and donates $200 (1/10 of 1% of its budget) to a

candidate is deemed a political committee.” Id. 

The Secretary first argues the district court erred when it determined § 2(12)

was unconstitutional as-applied to CRLC and that its “reasoning [was] based upon

the flawed assumption that the major purpose component is constitutionally

compelled by Buckley . . . .” Aplt’s Br. at 31. The Secretary also suggests that
In fact, the Supreme Court recently made clear in WRTL that the 11

distinction between issue advocacy and express advocacy can be paramount in the

context of electioneering communications: “a court should find that [advocacy] is

the functional equivalent of express advocacy only if the [advocacy] is

susceptible of no reasonable interpretation other than as an appeal to vote for or

against a specific candidate.” 127 S. Ct. at 2667. Again referring to

electioneering communications, the Court also “decline[d] to adopt a test for

as-applied challenges turning on the speaker’s intent to affect an election.” Id. at

2665. The Court reiterated the difficulties of regulating issue advocacy in

electioneering communications: if the regulated advocacy was “not express

advocacy or its equivalent, the Government’s task is . . . formidable. It must then

demonstrate that [the regulation] is narrowly tailored to serve a compelling

interest.” Id. at 2664.

33

McConnell somehow reevaluated Buckley. The Secretary avers without much

explanation, that, “[a]s with the distinction between express advocacy and issue

advocacy, the incorporation of a major purpose test into the definition of political

committee ‘was an endpoint of [statutory] interpretation, not a first principle of

constitutional law.’” Aplt’s Br. at 31-32 (quoting McConnell, 540 U.S. at 190). 

Because the distinction between issue advocacy and express advocacy is not

constitutionally compelled, he argues, there is also no required inclusion of the

“major purpose” test. “In other words, it is the ‘major purpose’ of the expenditure

and not the ‘major purpose’ of the organization that is constitutionally significant.” 

Aplt’s Reply Br. at 23 (emphasis supplied). Thus, the Secretary seems to suggest

that the $200 trigger satisfied the major purpose test.

We cannot agree with the Secretary’s broad propositions. First, there is 11

little question that Buckley’s “major purpose test” is left unaltered in the wake of

McConnell. See Political Committee Status, Definition of Contribution, and
34

Allocation for Separate Segregated Funds and Nonconnected Committees, 69 Fed.

Reg. 68,056, 68,065 (Nov. 23, 2004) (“[N]o change through regulation of the

definition of ‘political committee’ is mandated by [the Bipartisan Campaign

Reform Act, (“BCRA”)] or the Supreme Court’s decision in McConnell. The

‘major purpose’ test is a judicial construct that limits the reach of the statutory

triggers in FECA for political committee status. The Commission has been

applying this construct for many years without additional regulatory definitions,

and it will continue to do so in the future.”) (emphasis added); N.C. Right to Life,

Inc. v. Leake, 482 F. Supp. 2d 686, 692 (E.D.N.C. 2007) (“In McConnell,

[reviewing BCRA] the major purpose test was not directly examined. Thus, the

Court in McConnell did not overturn or criticize the major purpose test, and its

authority remains in force.”); see also Trevor Potter, McConnell v. FEC

Jurisprudence and its Future Impact on Campaign Finance, 60 U. MIAMI L. REV.

185, 198 (2006) (“[T]he [McConnell Court] implicitly affirmed the continuing

applicability of the ‘major purpose’ test when it referred to the ‘major purpose’

language in the Buckley opinion.”) (citing McConnell, 540 U.S. at 170 n.64

(quoting Buckley, 424 U.S. at 79)). Hence, we hold that Colorado’s “interest in

disclosure . . . can be met in a manner less restrictive than imposing the full

panoply of regulations that accompany status as a political committee. . . .” MCFL,

479 U.S. at 262.

Second, for substantially the same reasons as the district court, we agree that
35

the $200 trigger, standing alone, cannot serve as a proxy for the “major purpose”

test as applied to CRLC: “[T]he amount of money an organization must accept or

spend–$200–is not substantial and would, as a matter of common sense, operate to

encompass a variety of entities based on an expenditure that is insubstantial in

relation to their overall budgets.” 395 F. Supp. 2d at 1021. The court added that,

under § 2(12)(a), “an entity that spends $200,000 on various non-political activities

and donates $200 (1/10 of 1% of its budget) to a candidate is deemed a political

committee.” Id. Section 2(12), as written, is thus unconstitutional as applied to

CRLC.

c. Narrowing construction 

The Secretary maintains that if we hold that the “major purpose” test

survives McConnell, then § 2(12)’s definition of political committee as applied to

CRLC is readily susceptible to a narrowing construction that will remedy any

constitutional infirmity presented by the omission of the “major purpose” test. See

Aplt’s Br. at 39 (citing Citizens for Responsible Gov’t State Political Action Comm.

v. Davidson, 236 F.3d 1174, 1194 (10th Cir. 2000)). He avers that because

Colorado’s definition of political committee is substantially similar to the federal

definition, and Colorado “has used federal campaign law as a template for its

campaign laws,” § 2(12) should withstand constitutional scrutiny. Id. at 39.

Generally, we consider the application of a narrowing construction in the

context of a facial challenge. See Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S.
36

383, 397 (1988) (“It has long been a tenet of First Amendment law that in

determining a facial challenge to a statute, if it be ‘readily susceptible’ to a

narrowing construction that would make it constitutional, it will be upheld.”);

Citizens for Responsible Gov’t State Political Action Comm, 236 F.3d at 1194. As

we later discuss, we decline to reach CRLC’s facial challenge to § 2(12). 

However, regardless of whether we characterize the Secretary’s argument as

addressing a facial or as-applied challenge, we agree with the district court that the

statute does not lend itself to a narrowing construction. 

To be readily susceptible to a narrowing construction, such a construction

must be “reasonable and readily apparent.” Stenberg v. Carhart, 530 U.S. 914, 944

(2000) (internal quotation marks omitted). “[W]here an otherwise acceptable

construction of a statute would raise serious constitutional problems, the Court will

construe the statute to avoid such problems unless such construction is plainly

contrary to the intent of Congress.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast

Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). Thus, “we will not

rewrite a state law to conform it to constitutional requirements.” Am. Booksellers

Ass’n, 484 U.S. at 397. 

Here, importantly, we note that Article XXVIII’s definition of “issue

committee” includes the very “major purpose” test at issue, suggesting that the

legislature was well aware of Buckley’s requirements when it drafted Article

XXVIII. See id. § 2(10)(a) (“‘Issue committee’ means any person, other than a
We reiterate that a party should not take a cross-appeal when it succeeds 12

below. Leprino Foods. Co. v. Factory Mut. Ins. Co., 453 F.3d 1281, 1290 (10th

(continued...)

37

natural person, or any group of two or more persons, including natural persons . . .

[t]hat has a major purpose of supporting or opposing any ballot issue or ballot

question . . . .”). The inclusion of the “major purpose” test in § 2(10)(a) indicates

that the decision not to include this requirement in the definition of political

committee was deliberate and consistent with the state citizenry’s intent. Because

we cannot re-write state laws to conform with constitutional requirements where

doing so would be inconsistent with legislative, or here, the state citizenry’s intent,

we hold that the district court properly concluded that § 2(12) as applied to CRLC

could not saved by incorporating a narrowing construction. See Bartlett, 168 F.3d 

712-13 (4th Cir. 1999) (striking down North Carolina campaign finance statute as

facially vague and overbroad, noting that the court was unable to excise the word

“incidental” from a statute because “[t]o accept [North Carolina’s] proffered

interpretation would read the references to influencing elections (a classic form of

issue advocacy) right out of the statute”).

B. CRLC’s Cross-Appeal

In its cross-appeal, CRLC challenges three sections of Article XXVIII: §§

6(2), 2(7), and 2(12). First, it argues in the alternative, that if we reverse the

district court’s decision that CRLC is an MCFL entity, then we must address its

facial overbreadth and vagueness challenges to §§ 6(2) and 2(7). However, 12
(...continued) 12

Cir. 2006) (“Only a party aggrieved by the judgment may appeal, and [the

defendants were] 100% successful.”) (internal quotation marks omitted). 

38

because we hold that CRLC meets the MCFL exemption requirements, we need not

address this argument. 

Next, it asks us to consider whether § 2(12)’s definition of political

committee, which the district court declared unconstitutional as applied to CRLC,

is also facially unconstitutional. “Facial challenges seek to vindicate not only

individual plaintiffs’ rights but also those of all others who wish to engage in the

speech being prohibited.” Faustin, 423 F.3d at 1196. 

To succeed, CRLC must establish that the law, in every application, “creates

an impermissible risk of suppression of ideas, such as an ordinance that delegates

overly broad discretion to the decisionmaker, and in cases where the ordinance

sweeps too broadly, penalizing a substantial amount of speech that is

constitutionally protected.” Forsyth County v. Nationalist Movement, 505 U.S.

123, 129-30 (1992) (internal citations omitted); Faustin, 423 F.3d at 1199 (“The

overbreadth claimant bears the burden of demonstrating from the text of the law

and from actual fact, that substantial overbreadth exists.”). This task presents a

“heavy burden” for the plaintiff. McConnell, 540 U.S. at 207.

Here, the district court determined it need not address CRLC’s facial

challenge to § 2(12). We agree with the general proposition that a court should

“never . . . formulate a rule of constitutional law broader than is required by the
39

precise facts to which it is to be applied,” and that the nature of judicial review

constrains a federal court to consider only the case that is actually before it. 

McConnell, 540 U.S. at 192 (citing United States v. Raines, 362 U.S. 17, 21 (1960)

and James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 547 (1991)

(Blackmun, J., concurring)); United States v. Nat’l Treasury Employees Union, 513

U.S. 454, 477-78 (1995) (“[A]lthough the occasional case requires us to entertain a

facial challenge in order to vindicate a party’s right not to be bound by an

unconstitutional statute, we neither want nor need to provide relief to nonparties

when a narrower remedy will fully protect the litigants.”) (internal citations

omitted); Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973) (holding that a ruling

of facial invalidity “is, manifestly, strong medicine” and noting that “[i]t has been

employed by the Court sparingly and only as a last resort”).

 CRLC’s facial validity argument is succinct: “because the application of

political committee status to groups lacking the requisite major purpose is selfevidently ‘substantial,’ . . . the provision ought to be declared unconstitutional on

its face as well.” Aple’s Br. at 46. We agree with CRLC that the application of §

2(12)(a) to it creates an impermissible risk of the suppression of ideas because it

omits the “major purpose” test and encompasses groups whose “incidental

purpose” may be to engage in express advocacy. Bartlett, 168 F.3d at 712-13. 

However, without more, we cannot say that in every application § 2(12) will be

unconstitutional and we decline to formulate a rule of constitutional law broader
40

than is required. McConnell, 540 U.S. at 192. Therefore, we decline to reach

CRLC’s facial invalidity challenge.

III. CONCLUSION

This case demonstrates the exacting scrutiny a campaign reform act will

undergo when it regulates an organization’s expenditures. Here, because CRLC is

an MCFL-exempt entity, §§ 3(4)(a) and (6)(2) of Article XXVIII are

unconstitutional as applied to it. Section 2(12)(a) is also unconstitutional as

applied to CRLC because it does not contain Buckley’s “major purpose” test. 

Accordingly, we AFFIRM the district court’s thorough and well-reasoned

order to the extent that it granted summary judgment in part and afforded injunctive

relief to CRLC, and we DISMISS the remainder of CRLC’s cross-appeal.