PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

COALITION FOR SECULAR 

GOVERNMENT, a Colorado nonprofit 

corporation, 

 Plaintiff - Appellee, 

v. 

WAYNE WILLIAMS, in his official 

capacity as Colorado Secretary of State, 

 Defendant - Appellant. 

------------------------ 

COLORADO ETHICS WATCH; 

COLORADO COMMON CAUSE, 

 Amici Curiae. 

No. 14-1469 

_________________________________ 

Appeal from the United States District Court 

for the District of Colorado 

(D.C. No. 1:12-CV-01708-JLK)

_________________________________ 

Matthew D. Grove, Assistant Solicitor General (Cynthia H. Coffman, Attorney General, 

Frederick R. Yarger, Assistant Solicitor General, Sueanna P. Johnson, Assistant Attorney 

General, with him on the briefs) Office of the Attorney General for the State of Colorado, 

Denver, Colorado, for Defendant-Appellant. 

Allen Dickerson, Center for Competitive Politics, Alexandria, Virginia (Tyler Martinez, 

Center for Competitive Politics, Alexandria, Virginia, with him on the briefs), for 

Plaintiff-Appellee. 

FILED 

United States Court of Appeals

Tenth Circuit 

March 2, 2016

Elisabeth A. Shumaker 

Clerk of Court

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Benjamin J. Larson, Ireland Stapleton Pryor & Pascoe, Denver, Colorado, for Colorado 

Common Cause, Amicus Curiae. 

Luis A. Toro and Margaret G. Perl, Colorado Ethics Watch, Denver, Colorado, for 

Colorado Ethics Watch, Amicus Curiae. 

_________________________________ 

Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges. 

_________________________________ 

PHILLIPS, Circuit Judge. 

_________________________________ 

Colorado Secretary of State Wayne Williams (Secretary) appeals a district 

court order enjoining him from enforcing Colorado’s issue-committee registration 

and disclosure requirements against the Coalition for Secular Government 

(Coalition), a nonprofit corporation that was planning to advocate against a statewide 

ballot initiative in the 2014 general election. Exercising jurisdiction under 28 U.S.C. 

§ 1291, we affirm. 

I. BACKGROUND 

The Coalition is a Colorado nonprofit corporation whose mission is “to 

educate the public about the necessary secular foundation of a free society, 

particularly the principles of individual rights and separation of church and state.” 

J.A. vol. 5 at 933. In 2008, Dr. Diana Hsieh, who holds a doctorate degree in 

philosophy, founded the Coalition and is solely responsible for its operations.

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In accordance with its mission, the Coalition publishes a policy paper each 

year in which a proposed “personhood” amendment appears on Colorado ballots.1

The policy paper advocates against the personhood amendment, explains the 

Coalition’s view of the deleterious effects of passing such an amendment, and urges 

“no” votes on the ballot initiative. In 2008, 2010, and 2014, the Coalition used 

contributed funds to publish its personhood policy paper. Dr. Hsieh and a colleague 

co-authored each paper and distributed the papers publicly, first by printing and 

mailing copies and later by making the paper available online.

Under Colorado law, the Coalition’s activities triggered various issuecommittee registration and disclosure requirements, which we detail below. 

A. Colorado’s Issue-Committee Regulatory Framework 

The Colorado Constitution defines “issue committee” as follows: 

[A]ny person, other than a natural person, or any group of two or 

more persons, including natural persons: (I) That has a major 

purpose of supporting or opposing any ballot issue or ballot 

question; or2

 (II) That has accepted or made contributions or 

 1

 For instance, in 2010, Colorado citizens voted on “[a]n amendment to the 

Colorado Constitution applying the term ‘person’ as used in those provisions of the 

Colorado Constitution relating to inalienable rights, equality of justice and due 

process of law, to every human being from the beginning of the biological 

development of that human being.” J.A. vol. 4 at 769. 

2

 The Secretary has promulgated a rule defining “issue committee” to mean “a 

person or a group of people that meets both of the conditions in [Colo. Const. art. 

XXVIII, § 2(10)(a)(I) and 2(10)(a)(II)].” Colo. Code Regs. § 1505-6:1.9 (2015) 

(emphasis added). In effect, this rule changes the “or” that exists in the Colorado 

Constitution’s definition of issue committee to “and.” Notwithstanding the 

Secretary’s interpretation of the Colorado Constitution, and especially in light of 

Gessler v. Colo. Common Cause, 327 P.3d 232, 236–38 (Colo. 2014) (declaring a 

regulation unlawful because it conflicted with a constitutional provision), we enforce 

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expenditures in excess of two hundred dollars to support or 

oppose any ballot issue or ballot question. 

Colo. Const. art. XXVIII, § 2(10)(a).3

 Once a person or group of persons qualifies as 

an issue committee under this definition, a substantial set of registration and 

disclosure requirements apply. 

 Initially, we note that the regulatory framework governing issue committees in 

Colorado derives from multiple sources: the state’s constitution, Colo. Const. art. 

XXVIII, §§ 2–3, 7, 9–10; its statutes, Colo. Rev. Stat. §§ 1-45-101 to -118 (2015); 

and its regulations, Colo. Code Regs. § 1505-6 (2015). As we evaluate the claims 

now raised, we take care to note the source of each relevant registration or disclosure 

requirement. Knowing where any unconstitutional burdens lie is the key to 

Colorado’s addressing them. 

 

the “or” in the issue-committee definition just as it is written in the Colorado 

Constitution. Thus, we disagree with amici curiae Colorado Ethics Watch and 

Colorado Common Cause, who argue that Article XXVIII “explicitly” defines “issue 

committee” as a group (or group of persons) that spends or receives $200 and has as 

its major purpose supporting or opposing a ballot initiative. See Amici Curiae Brief at 

8. 

On appeal, the Coalition does not challenge its putative status as an issue 

committee or the Secretary’s interpretation of the Colorado Constitution. Therefore, 

we assume for this case that the Coalition—in its activities opposing the personhoodamendment ballot initiative—is indeed an issue committee under the Colorado 

Constitution. 

3

 Article XXVIII of the Colorado Constitution “was proposed by citizen’s 

initiative as Amendment 27 and adopted by popular vote in 2002.” Colo. Ethics 

Watch v. Senate Majority Fund, LLC, 269 P.3d 1248, 1253 (Colo. 2012). 

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1. Constitutional Requirements 

Although Article XXVIII of the Colorado Constitution defines “issue 

committee,” it imposes few registration or disclosure requirements, leaving it to the 

legislative and executive branches to fill in the details. Even so, we still see six 

constitutional provisions that bear on our case. 

First, section 3(9) requires that issue committees deposit all contributions in “a 

financial institution in a separate account whose title shall include the name of the 

committee . . . .” Colo. Const. art. XXVIII, § 3(9). This subsection also imposes 

some recordkeeping responsibilities: “All records pertaining to such accounts shall be 

maintained by the committee . . . for one-hundred eighty days following any general 

election in which the committee . . . received contributions unless a complaint is 

filed, in which case they shall be maintained until final disposition of the complaint 

and any consequent litigation.” Id.

 Second, section 3(10) forbids issue committees from “accept[ing] a 

contribution, or mak[ing] an expenditure, in currency or coin exceeding one hundred 

dollars.” Id. § 3(10). 

 Third, section 3(11) provides that “[n]o person shall be reimbursed for a 

contribution made to any . . . issue committee, . . . nor shall any person make such 

reimbursement . . . .” Id. § 3(11). 

 Fourth, section 9(2)(a) permits any person to file a complaint against anyone 

violating the issue-committee regulatory framework. Any such person “may file a 

written complaint with the secretary of state no later than one hundred eighty days 

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after the date of the alleged violation.” Id. § 9(2)(a). In response to any filed 

complaint, the Colorado Constitution requires the Secretary to “refer the complaint to 

an administrative law judge [(ALJ)] within three days . . . .” Id. The ALJ then must 

“hold a hearing within fifteen days of the referral of the complaint” and “render a 

decision within fifteen days of the hearing.” Id. The Colorado Court of Appeals may 

review the ALJ’s final decision, and if the Secretary fails to enforce the ALJ’s 

decision within 30 days, the complainant may bring a private action in Colorado 

district court. Id.

 Fifth, section 10(2)(a) provides that an “appropriate officer” must impose a 

$50 penalty “per day for each day” that any violation of the issue-committee 

disclosure requirements in Colo. Const. art. XXVIII, § 7, or Colo. Rev. Stat. § 1-45-

108, remains uncured. Colo. Const. art. XXVIII, § 10(2)(a). 

 Sixth and finally, section 7 provides that “[t]he disclosure requirements of 

section 1-45-108, C.R.S., or any successor section, shall be extended to require 

disclosure of the occupation and employer of each person who has made a 

contribution of one hundred dollars or more to a[n] . . . issue committee . . . .” Id. § 7. 

For issue committees, then, the Colorado Constitution itself simply requires the state 

legislature to extend one existing statute to include one limited disclosure. 

2. Statutory Requirements 

Colorado statutes—specifically, Colorado’s Fair Campaign Practices Act, 

Colo. Rev. Stat. §§ 1-45-101 to -118 (2015)—contain the majority of the issuecommittee registration and disclosure requirements. 

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First, under the Act, a person or group of persons must register as an issue 

committee with the “appropriate officer” within ten days of accepting contributions 

or making expenditures in excess of $200 to support or oppose a ballot issue. Colo. 

Rev. Stat. § 1-45-108(3.3). Registration requires a statement listing certain categories 

of information: the committee’s full name; “[a] natural person authorized to act as a 

registered agent”; “[a] street address and telephone number for the principal place of 

operations”; “[a]ll affiliated candidates and committees”; and “[t]he purpose or 

nature of interest of the committee or party.” Id. § 1-45-108(3)(a)–(e), (3.3). 

Once registered, an issue committee must “report to the appropriate officer 

[its] contributions received, including the name and address of each person who has 

contributed twenty dollars or more; expenditures made, and obligations entered into 

by the committee . . . .” Id. § 1-45-108(1)(a)(I). In accordance with the Colorado 

Constitution’s mandate, the Act also requires that an issue committee’s disclosure 

reports “include the occupation and employer of each person who has made a 

contribution of one hundred dollars or more to such committee . . . .” Id.

§ 1-45-108(1)(a)(II); see Colo. Const. art. XXVIII, § 7.

The Act also requires an issue committee to 

file a report with the secretary of state of any contribution of one 

thousand dollars or more at any time within thirty days preceding 

the date of the primary election or general election. This report 

shall be filed with the secretary of state no later than twenty-four 

hours after receipt of said contribution. 

Colo. Rev. Stat. § 1-45-108(2.5). 

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Under section 1-45-108(2), every issue committee must file disclosure reports 

that include the information identified above. Subsection (2) requires multiple filings 

during election years and less frequent filings during off-election years. See id.

§ 1-45-108(2)(a). In 2014, for example, an issue committee that supported or opposed 

a ballot initiative in Colorado’s general election would have had to file disclosure 

reports on May 5, May 19, June 2, June 16, July 1, August 1, September 2, 

September 15, September 29, October 14, October 27, and December 4. In addition, 

issue committees would have had to file reports within 24 hours of receiving any 

contribution of $1,000 or more. See id. § 1-45-108(2.5). If a 2014 issue committee’s 

registered agent did not file a report terminating the issue committee, the issue 

committee would have had to continue filing quarterly reports even in off-election 

years. Id. § 1-45-108(2)(a)(I)(A). 

Finally, the Act provides additional reporting requirements for certain mediarelated activity: 

An issue committee making an expenditure in excess of one 

thousand dollars on a communication that supports or opposes a 

statewide 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, or 

otherwise distributed shall disclose, in the communication 

produced by the expenditure, the name of the issue committee 

making the expenditure. 

Id. § 1-45-108.3(1). 

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3. Regulatory Requirements 

At the legislature’s direction, the Secretary has adopted several campaignfinance rules, many of which clarify or supplement constitutional or statutory 

requirements. For example, one rule clarifies that “[i]f a contributor gives $20 or 

more in the aggregate during the reporting period, the committee must individually 

list the contributor on the report, regardless of the amount of each contribution.” 

Colo. Code Regs. § 1505-6:10.2.1. Another rule ensures each issue committee’s filed 

registration statement is up-to-date by requiring the issue committee to “report any 

change to its committee registration statement to the appropriate filing officer within 

ten days.” Id. § 1505-6:12.1. Yet another rule requires issue committees to report any 

expenditure of $20 or more to the same payee within a single reporting period, 

including the payee’s name and address. Id. § 1505-6:10.3. 

Neither the Colorado Constitution nor the Act provides for issue-committee 

termination. But the Secretary’s rules do. An issue committee can file a termination 

report if (1) “[t]he committee no longer has a major purpose of supporting or 

opposing a ballot measure and no longer intends to accept or make contributions or 

expenditures” and (2) the committee’s reporting account “reflects no cash on hand 

and no outstanding debts, obligations, or penalties.” Id. § 1505-6:4.4. 

 Thus, the Colorado Constitution, the Act, and the Secretary together regulate 

issue-committee activity. 

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B. The Coalition’s Activities 

Since 2008, the Coalition has either registered or considered registering as an 

issue committee in four general elections: 2008, 2010, 2012, and 2014.4

 As a result, 

the Coalition has previously disclosed certain information about its contributors and 

expenditures. We detail the Coalition’s experience as an issue committee below. 

1. 2008 Election 

In 2008, after publicly announcing her intention to publish the first policy 

paper opposing Colorado’s proposed personhood amendment, Dr. Hsieh registered 

the Coalition as an issue committee with the Secretary’s office on the advice of a 

friend who was familiar with Colorado’s issue-committee laws. In attempting to 

register the Coalition as an issue committee, Dr. Hsieh accessed the Secretary’s 

website but found it “completely impossible to figure out what . . . to do.” J.A. vol. 3 

at 597. Eventually, though, Dr. Hsieh concluded that the Coalition would probably 

spend at least $200 printing and mailing copies of the 2008 policy paper, thus 

requiring her to register the Coalition as an issue committee under Colorado law.

Accordingly, in 2008, Dr. Hsieh completed a form registering the Coalition as 

an issue committee opposing the proposed personhood amendment. Dr. Hsieh also 

completed and filed bi-weekly reports with the Secretary’s office detailing any 

contributions received and expenditures made, each report taking about an hour to 

complete. In meeting the reporting requirements, Dr. Hsieh found it “difficult” to 

 4

 Again, the Coalition does not challenge its status as an issue committee under 

the Colorado Constitution, Colorado statutes, or the Secretary’s rules. 

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track down the required business addresses where she had purchased items such as 

mailing envelopes, labels, and postage stamps. Id. at 600. Even when the Coalition 

did not spend any funds or receive contributions during a reporting period, Dr. Hsieh 

needed to spend about ten minutes filling out nearly blank reports.

In November 2008, after the election, Dr. Hsieh terminated the Coalition’s 

issue-committee status, meaning the Coalition would no longer need to comply with 

Colorado’s disclosure requirements.

2. 2010 Election 

In 2010, in response to another personhood ballot initiative, Dr. Hsieh solicited 

financial contributions to enable her and her co-author to update and expand the 

personhood policy paper. Using what Dr. Hsieh called a pledge model, she publicized 

that she and her co-author would publish an updated policy paper if they received a 

total of at least $2,000 in contributions. Putative contributors could then register their 

names, e-mail addresses, and pledge amounts with the Coalition. Dr. Hsieh told the 

putative contributors that she would not collect their pledged money if the Coalition 

did not receive at least $2,000 in pledges. Later in 2010, the Coalition raised and 

collected about $2,800 in pledges, so the Coalition completed and published its 

updated policy paper. 

Remembering her 2008 experience, Dr. Hsieh again accessed the Secretary’s 

website and registered the Coalition as an issue committee. In registering the 

Coalition again, Dr. Hsieh learned that Colorado law required issue committees to 

have separate, standalone bank accounts. In 2008, she had failed to realize (and 

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comply) with this requirement, but now aware of the requirement in 2010, she 

opened a new bank account “solely to comply with the State’s campaign finance 

requirements.” J.A. vol. 3 at 608. After registering the Coalition, Dr. Hsieh once 

again began filing disclosure reports.

In meeting the reporting requirements, Dr. Hsieh had to list the addresses of all 

$20-plus contributors. For $100-plus contributors, Dr. Hsieh also had to list their 

occupations and employer information. She felt it “intrusive” to request that personal 

information from the Coalition’s contributors. Id. at 609. In fact, after Dr. Hsieh 

wrote a blog post describing the reporting requirements, putative contributors 

reacted, at least one increasing his pledge because he was “angry about the reporting 

requirements” and five reducing their contributions to avoid the reporting 

requirements. Id. at 631. 

By 2010, the Secretary had found ways to ease the reporting burden by 

implementing its online-reporting system, TRACER. Using TRACER, Dr. Hsieh was 

better able to transfer disclosure information from her software to the Secretary’s 

website. But even with this improvement, Dr. Hsieh still needed to maintain a 

spreadsheet, separate from her financial records that she maintained on accounting 

software, to organize her data so it would sync with the TRACER system. Dr. Hsieh 

spent about an hour or two completing each TRACER report.

In 2010, Dr. Hsieh failed to file her first disclosure report on time because her 

house had flooded. Soon afterward, she received an e-mail from the Secretary’s 

office notifying her of the missed deadline and telling her that the Coalition’s issue 

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committee could be fined $50 per day for uncured violations of the issue-committee 

disclosure laws. To stop the fine from increasing, Dr. Hsieh immediately filed an 

incomplete report that she would later update. Even so, she soon received a notice 

that the Secretary had assessed the Coalition’s issue committee a $50 fine. In 

response, Dr. Hsieh filed a waiver request, which the Secretary’s office granted two 

weeks later.

Despite the difficulties recounted above, Dr. Hsieh found her 2010 experience 

with Colorado’s issue-committee regulatory framework “significantly easier” than 

her experience in 2008 because of improved documentation and online resources that 

streamlined disclosure. Id. at 607. In April 2011, after the election, Dr. Hsieh filed 

the necessary papers to terminate the Coalition’s issue-committee status.

3. 2012 Activities 

As the 2012 election neared, the Coalition filed in federal district court a 

declaratory-judgment suit against Scott Gessler, the then-Colorado Secretary of State. 

Among other relief, the Coalition requested the court to declare that the Coalition’s 

“expected activity of $3,500 does not require registration as an issue committee.” 

J.A. vol. 1 at 25. On August 13, 2012, the Coalition moved the court for a 

preliminary injunction. On October 2, 2012, after full briefing on the motion, the 

federal court certified four questions to the Colorado Supreme Court, including this 

one: “In light of Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010), what is the 

monetary trigger for Issue Committee status under Art. XXVIII § 2(10)(a)(II) of the 

Colorado Constitution?” J.A. vol. 2 at 428. 

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On July 2, 2014, the Colorado Supreme Court declined to answer the certified 

questions “in light of the [Colorado Supreme] Court’s decision in 12SC783, Gessler 

v. Colorado Common Cause, which was issued June 16, 2014.” Id. at 439 (emphasis 

altered). By then, the 2012 election had come and gone. Because the personhood 

amendment failed to qualify for the general-election ballot, the Coalition had neither 

registered as an issue committee nor published an updated policy paper. 

4. 2014 Election

After the Colorado Supreme Court’s decision in Gessler v. Colorado Common 

Cause, 327 P.3d 232 (Colo. 2014), the Coalition renewed its preliminary-injunction 

motion in federal district court. By then, the personhood amendment had qualified for 

the 2014 general-election ballot, and Dr. Hsieh and her co-author again wanted to 

update and expand the policy paper urging readers to vote “no” on the latest iteration 

of the personhood ballot initiative.

The district court consolidated the hearing on the preliminary-injunction 

motion with a hearing on the merits of the case. As Dr. Hsieh testified at the hearing, 

the Coalition planned to raise about $1,500 in 2014 to fund the policy paper but still 

opposed registering as an issue committee. By October 3, 2014, the day of the 

preliminary-injunction hearing, the Coalition had already received pledges totaling 

about $2,000.

On October 10, 2014, the district court “ORDERED and DECLARED that [the 

Coalition]’s expected activity of $3,500 does not require registration or disclosure as 

an ‘issue committee’ and the Secretary is ENJOINED from enforcing” Colorado’s 

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disclosure requirements against the Coalition.5

 J.A. vol. 2 at 579. Specifically, the 

district court concluded that the Coalition had “established clearly and convincingly 

that it will suffer irreparable injury to its First Amendment right of free association.” 

Id.

The Secretary appeals the district court’s order granting the Coalition 

declaratory and injunctive relief. 

II. DISCUSSION 

The Secretary presents two issues on appeal. First, does Colorado’s $200 

threshold for issue-committee registration and reporting violate the First 

Amendment? And second, can Colorado require issue-committee registration and 

disclosure for a group that raises and spends $3,500 to influence an election on a 

statewide ballot initiative? Thus, the Secretary’s first issue asks us whether the 

Colorado Constitution’s monetary threshold for defining “issue committee” is 

facially valid under the First Amendment. The Secretary’s second issue asks us 

whether Colorado’s issue-committee regulatory framework is constitutional as 

applied to the Coalition. We conclude that Colorado’s issue-committee regulatory 

framework is unconstitutional as applied to the Coalition. We therefore do not 

address the facial validity of the $200 threshold. 

 5

 For the 2012 and 2014 general elections, Dr. Hsieh expected to raise between 

$1,500 and $3,500 in contributions. The parties agree that the amount involved in this 

appeal is $3,500. 

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A. Legal Standard 

We review de novo the district court’s “findings of constitutional fact . . . and 

conclusions of law.” Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1195–96 (10th 

Cir. 2005). “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.” Id. at 1196. 

The parties dispute what legal standard governs our review of the 

constitutional question. The Secretary advocates for exacting scrutiny, which this 

court has applied in a similar, controlling case. See Sampson v. Buescher, 625 F.3d 

1247, 1255 (10th Cir. 2010) (discussing the exacting-scrutiny standard). Citing 

Buckley v. Valeo, 424 U.S. 1 (1976), however, the Secretary argues that we should 

apply a “wholly without rationality” standard in determining whether Colorado’s 

$200 disclosure threshold may stand. Buckley, 424 U.S. at 83. To support his view, 

the Secretary argues that the Sampson court applied exacting scrutiny only because 

“the focus of those plaintiffs was on the impact of the entire disclosure scheme.” 

Appellant’s Opening Br. at 31. The Secretary argues that the Coalition’s case merits 

a less-stringent standard since it focuses “specifically on the constitutionality of 

Colorado’s disclosure threshold [of $200].” Id. We conclude that exacting scrutiny is 

the standard that controls this case, at least in deciding the as-applied challenge. 

The plaintiffs in Sampson sought a declaration that Colorado’s “registration 

and disclosure requirements are unconstitutional, facially, and as applied.” Sampson, 

625 F.3d at 1253. We concluded that, as applied, Colorado’s issue-committee 

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regulatory framework failed exacting scrutiny. Id. at 1261. Thus, Sampson forecloses 

the Secretary’s argument for a less-stringent standard. 

We face the exact as-applied question the Sampson court faced, though with a 

putative issue committee that has, at times, raised slightly more money than did the 

issue committee in Sampson. Thus, as in Sampson, we will apply exacting scrutiny to 

the as-applied challenge. See Doe v. Reed, 561 U.S. 186, 196 (2010) (“We have a 

series of precedents considering First Amendment challenges to disclosure 

requirements in the electoral context. These precedents have reviewed such 

challenges under what has been termed ‘exacting scrutiny.’” (citing, among other 

cases, Buckley, 424 U.S. at 64)). 

Exacting scrutiny “requires a ‘substantial relation’ between the disclosure 

requirement and a ‘sufficiently important’ governmental interest.” Citizens United v. 

Fed. Election Comm’n, 558 U.S. 310, 366–67 (2010) (quoting Buckley, 424 U.S. at 

64, 66). “To withstand this scrutiny, ‘the strength of the governmental interest must 

reflect the seriousness of the actual burden on First Amendment rights.’” Reed, 561 

U.S. at 196 (quoting Davis v. Fed. Election Comm’n, 554 U.S. 724, 744 (2008)). 

B. Whether the Coalition Must Register and Disclose 

We conclude that the Secretary may not constitutionally require the Coalition 

to register and disclose as an issue committee under Colorado’s regulatory 

framework. The informational interest in the Coalition’s disclosures is far 

outweighed by the substantial and serious burdens of the required disclosures. 

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In assessing the Secretary’s arguments, we often draw comparisons to the facts 

in Sampson. We therefore begin by reviewing Sampson before proceeding to our 

exacting-scrutiny analysis of the facts in this case. 

1. Sampson Revisited

In Sampson, we concluded that Colorado’s issue-committee regulatory 

framework was unconstitutional as applied to a group of residents opposing 

annexation of their unincorporated neighborhood (Parker North) into a larger, 

incorporated town (Parker). See Sampson, 625 F.3d at 1249, 1254. After a Parker 

North resident submitted a petition to the Parker Town Council seeking annexation of 

Parker North into Parker, a group of residents joined in opposing the petition and 

annexation. Id. at 1251. To convince other Parker North residents to oppose the 

petition, the anti-annexation residents “purchased and distributed No Annexation 

signs, mailed to all residents of Parker North a postcard summarizing the reasons to 

oppose annexation, continued to discuss and debate the issue on the Internet, and . . . 

submitted to the [Parker] Town Council a document opposing annexation . . . .” Id.

A pro-annexation resident, who had earlier formed an issue committee to 

support annexation, filed a complaint with the Colorado Secretary of State (then 

Bernie Buescher) alleging that the anti-annexation residents had violated the Act by 

failing (1) to register as an issue committee, (2) to comply with issue-committee 

reporting requirements, and (3) to establish a separate bank account. Id. By that time, 

the anti-annexation residents had received $782.02 in nonmonetary contributions. Id.

at 1252. All told, the neighborhood group would ultimately receive a total of 

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$2,239.55 in monetary and nonmonetary contributions and spend $1,992.37 opposing 

the annexation measure and answering the complaint. See id. at 1260 n.5. 

After retaining an attorney and responding to the complaint, the antiannexation residents filed suit against Secretary Buescher in federal court alleging 

that the Colorado issue-committee requirements violated their First Amendment 

rights to free speech and association. Id. at 1253. The federal district court upheld the 

constitutionality of Colorado’s issue-committee regulatory framework as applied to 

the anti-annexation residents, but we reversed. Id. at 1253–54. 

In applying exacting scrutiny in Sampson, we discussed the public’s interest in 

issue-committee disclosures and the Supreme Court’s recognizing “three proper 

justifications for reporting and disclosing campaign finances.” Id. at 1256. We

concluded that the first two of these justifications—“facilitating the detection of 

violations of contribution limitations” and deterring quid pro quo corruption—were 

irrelevant or inapplicable to issue committees. Id. This left the third—the public’s 

informational interest. Id. Issue-committee disclosures serve the public’s 

informational interest by allowing voters to “identify those who (presumably) have a 

financial interest in the outcome of the election.” Id. at 1259. In measuring the value 

of this informational interest in the annexation debate, we focused on a balance: 

“[W]hile assuming that there is a legitimate public interest in financial disclosure 

from campaign organizations, we also recognize that this interest is significantly 

attenuated when the organization is concerned with only a single ballot issue and 

when the contributions and expenditures are slight.” Id.

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In balancing the public’s legitimate interest in financial disclosure with the 

anti-annexation residents’ First Amendment right of association, we concluded that 

the burden “imposed by Colorado’s registration and reporting requirements cannot be 

justified by a public interest in disclosure.” Id. In Sampson, we characterized 

Colorado’s laws burdening issue committees as “substantial.” Id. We noted first that 

“[t]he average citizen cannot be expected to master on his or her own the many 

campaign financial-disclosure requirements set forth” in the Colorado Constitution, 

the Act, and the Secretary’s rules. Id. Second, we noted that hiring an attorney to help 

comply with disclosure laws and to answer any complaints would often cost more 

than the total amount of contributions of small-scale issue committees. Id. at 1260 

(citing Citizens United, 558 U.S. at 324 (“The First Amendment does not permit laws 

that force speakers to retain a campaign finance attorney, conduct demographic 

marketing research, or seek declaratory rulings before discussing the most salient 

political issues of our day.”)). Finally, we noted the residents’ burden of the “time, 

energy, and money to review the law themselves.” Id. We concluded that “the 

financial burden of state regulation on [the anti-annexation residents’] freedom of 

association approaches or exceeds the value of their financial contributions to their 

political effort; and the governmental interest in imposing those regulations is 

minimal, if not nonexistent, in light of the small size of the contributions.” Id. at 

1261.

Having reviewed Sampson’s exacting-scrutiny analysis, we turn now to the 

facts of this case. 

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2. Framework As Applied to the Coalition 

In our view, Sampson’s holding compels us to conclude that Colorado’s issuecommittee regulatory framework fails exacting scrutiny in this case. Simply put, 

Colorado’s issue-committee regulatory framework remains too burdensome for 

small-scale issue committees like the Coalition. We commend the Secretary for his 

progress in streamlining issue-committee disclosures and explaining complex laws to 

ordinary citizens. But the burdens remain too great in the face of the public’s 

legitimate but minimal interest in information about the Coalition’s contributors and 

expenditures. 

a. Governmental Interest 

We begin our exacting-scrutiny analysis by noting that under Sampson’s 

reasoning we must conclude that the governmental interest in issue-committee 

disclosures remains minimal where an issue committee raises or spends $3,500. In 

Sampson, we held that the informational interest was minimal in the financial 

disclosures of an issue committee that raised and spent about $2,000. Id. at 1260. 

Again, as in Sampson, “[t]he case before us is quite unlike ones involving the 

expenditure of tens of millions of dollars on ballot issues presenting ‘complex policy 

proposals.’” Id. at 1261 (quoting Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 

1088, 1105 (9th Cir. 2003)). 

The Secretary argues that the informational interest in the Coalition’s 

disclosures is “substantial.” Appellant’s Opening Br. at 32. Citing other courts’ 

discussions of Sampson, the Secretary argues that “courts are virtually unanimous in 

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concluding that campaign disclosures are often more meaningful in the ballot 

initiative context than they are for candidate elections.” Id. at 34 (citing, among 

others, Worley v. Fla. Sec’y of State, 717 F.3d 1238, 1248 (11th Cir. 2013) (“In the 

same way the Supreme Court in Citizens United rejected the idea that the messenger 

distorts the message, we reject the notion that knowing who the messenger is distorts 

the message.” (citation omitted))). In Sampson we explicitly “assume[d] that there is 

a legitimate public interest in financial disclosure from” issue committees. 625 F.3d 

at 1259. Instead of assigning that interest the same weight across all issue 

committees, however, we recognized that the strength of the informational interest in 

financial disclosure varies depending on whether an issue committee has raised and 

spent $10 million, for example, or instead $3,500. In other words, the strength of the 

public’s interest in issue-committee disclosure depends, in part, on how much money 

the issue committee has raised or spent. We continue to agree with the Ninth 

Circuit’s characterization of this sliding scale: 

As a matter of common sense, the value of this financial

information to the voters declines drastically as the value of the 

expenditure or contribution sinks to a negligible level. As the 

monetary value of an expenditure in support of a ballot issue 

approaches zero, financial sponsorship fades into support and 

then into mere sympathy. 

Canyon Ferry Rd. Baptist Church of E. Helena, Inc. v. Unsworth, 556 F.3d 1021, 

1033 (9th Cir. 2009) (emphasis in original); Sampson, 625 F.3d at 1260–61 (same). 

 We reiterate that there is an informational interest in the Coalition’s financial 

disclosures. After all, the Colorado electorate said so in passing Article XXVIII. But 

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at a $3,500 contribution level, we cannot under Sampson’s reasoning characterize the 

disclosure interest as substantial. 

b. Burden 

Obviously, informational interest is just one side of the exacting-scrutiny 

balance. An issue committee raising or spending a meager $200 might still be 

required to disclose limited information without violating the First Amendment, but 

any reporting burdens must be measured against the government’s interest in that 

disclosure. See Reed, 561 U.S. at 196 (“To withstand [exacting] scrutiny, ‘the 

strength of the governmental interest must reflect the seriousness of the actual burden 

on First Amendment rights.’” (quoting Davis, 554 U.S. at 744)). 

As a practical matter, the burdens here are less substantial than the burdens in 

Sampson. Today, the Secretary’s office and website have additional resources to 

assist people like Dr. Hsieh. In addition, the Secretary’s office has implemented the 

TRACER system, by which issue committees can more easily disclose contributions 

and expenditures. Dr. Hsieh’s easier experience meeting Colorado’s issue-committee 

registration and disclosure requirements is a testament to the Secretary’s good work 

in improving the process. In 2008, issue committees seeking guidance were left to 

sort through the language of the Colorado Constitution, the Act, and the Secretary’s 

regulations. Yet, apart from the easier entry of information, Colorado’s issuecommittee regulatory framework and its associated burdens remain fully in place. 

In registering the Coalition as an issue committee and complying with 

Colorado’s reporting requirements, Dr. Hsieh still faces an overly burdensome 

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regulatory framework. Although the Secretary has created additional resources to 

assist issue committees in understanding and complying with registration and 

disclosure laws, meeting the requirements is no small chore. Implementing TRACER 

alleviated some technical burdens, but even with TRACER, a person registering an 

issue committee still faces over 35 online training modules on how to use TRACER. 

And although TRACER enables Dr. Hsieh to more easily transfer the Coalition’s 

financial information to the Secretary’s disclosures database, she still must provide 

detailed information about the Coalition’s most mundane, obvious, and unimportant 

expenditures (e.g., the address of the post office at which she purchased stamps). 

We also note that financial disclosure imposes a unique burden on small-scale 

issue committees. In 2010, after reaching out to putative contributors who pledged 

funds in support of the Coalition’s policy paper, some putative contributors altered 

their behavior in response to Dr. Hsieh’s request for their personal information. 

While one contributor increased his contribution in response to the disclosure 

requirements, the Coalition lost contributions it otherwise would have received. We 

would expect some prospective contributors to balk at producing their addresses or 

employment information. And with small-scale issue committees, like the 

Coalition’s, lost contributions might affect their ability to advocate. Although largerdollar issue committees may not notice some lost donations, Dr. Hsieh vividly 

recalled losing even $20 contributions. 

The Secretary argues that the Coalition’s incremental burden in complying 

with Colorado’s issue-committee regulatory framework is less than the overwhelming 

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burden borne by the anti-annexation residents in Sampson. Specifically, the Secretary 

argues that because the Coalition is a nonprofit corporation instead of a citizen group, 

the Coalition is better prepared to comply with Colorado’s issue-committee laws. 

Although it is true that the Coalition may closely track finances and use software that 

helps in creating TRACER reports, we note that Dr. Hsieh operates the Coalition by 

herself. Dr. Hsieh spends a considerable amount of time tending to the Coalition’s 

disclosure obligations. In this way, Dr. Hsieh experienced the same substantial 

burdens as did the citizen group in Sampson. 

In sum, Colorado law imposes a wide range of burdens on issue committees, 

some of which are slight and others more substantial. 

c. Balancing 

In balancing the informational interest in the Coalition’s disclosures and the 

burdens Colorado law imposes, we see a mismatch. In Colorado, at least in the 

Coalition’s circumstances, the minimal informational interest cannot justify the 

associated substantial burdens. 

The minimal informational interest here cannot support Colorado’s filing 

schedule that requires twelve disclosures in seven months regardless of whether an 

issue committee has received or spent any money. Further, the burden of asking for 

personal information of $20-contributors is substantial. Gaining the necessary 

information from these contributors might well result in fewer contributors willing to 

support an issue committee’s advocacy. A $20 threshold for contributor disclosure—

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coupled with other registration and reporting requirements—is too burdensome when 

applied to a small-scale issue committee like the Coalition. 

In short, Colorado law—as it stands—demands too much of the Coalition 

given the public’s modest informational interest in the Coalition’s disclosures.6

Voters certainly have an interest in knowing who finances support or opposition to a 

given ballot initiative, but for small-scale issue committees like the Coalition, 

Colorado’s onerous reporting requirements outweigh that informational interest. At 

the same time, we recognize that Colorado’s current issue-committee regulatory 

framework is much more justifiable for large-scale, bigger-money issue committees. 

In concluding that Colorado’s issue-committee regulatory framework is 

unconstitutional as applied to the Coalition, we decline to address the facial validity 

of the Colorado Constitution’s $200 threshold for issue-committee reporting. The 

Secretary argues that if we conclude that Colorado may not require the Coalition to 

register and disclose as an issue committee, we “should [also] facially invalidate the 

$200 threshold.” Appellant’s Opening Br. at 68. The Secretary argues that facially 

invalidating the $200 threshold would “offer certainty to political speakers and 

regulators in Colorado by permitting the Colorado General Assembly to exercise its 

 6

 Our exacting-scrutiny analysis does not change after this court’s recent 

decision in Independence Institute v. Williams, ___ F.3d ____, No. 14-1463, 2016 

WL 423759 (10th Cir. Feb. 4, 2016). In Independence Institute, we concluded that 

Colorado’s electioneering-communications disclosure framework was constitutional 

as applied to a television advertisement urging Colorado voters to support an audit of 

Colorado’s Health Benefit Exchange. Id. at *1. Because Independence Institute 

involved a different disclosure framework, Independence Institute’s as-applied ruling 

does not impact our decision here. 

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political judgment to set constitutionally acceptable reporting requirements.” Id. at 

69. 

We understand the Secretary’s frustration with the present state of the law. 

Secretary Gessler tried to adjust his office’s rules after Sampson but then lost his bid 

to do so in Gessler. We sympathize with the Secretary’s suggestion that striking the 

$200 threshold as facially unconstitutional is better than leaving the threshold subject 

to piecemeal litigation on what amount of contributions and expenditures would be 

constitutional as applied.7

 For instance, in Sampson we declared Colorado’s 

regulatory scheme unconstitutional for an issue committee that raised $2,239.55. 

Here we do so again for $3,500. So what about $5,000? $10,000? 

From no one’s perspective is this a satisfactory posture. But the Secretary is 

better served seeking help from the institution best equipped in our governmental 

system to solve the problem—the Colorado legislature. As noted, statutes provide 

most of the onerous reporting requirements. Even the Colorado Constitution’s setting 

a floor of $200 does not require the same full reporting as for larger-scale issue 

committees. Accordingly, we decline to address the facial validity of the $200 

threshold, and leave it to the people of Colorado themselves. 

 7

 At oral argument, the court asked the Secretary’s counsel: “It sounds to me 

like what you’re really saying is if we don’t win on our first argument [as-applied 

constitutionality], then find the constitutional provision facially unconstitutional, is 

that what you’re saying?” Oral Arg. at 31:10. With a proper dose of levity but a deadserious point too, the Secretary’s counsel replied, “Execute us or set us free, your 

honor.” Id. at 31:22. Here we do neither, directing the Secretary to seek relief from 

those able to amend Colorado’s statutes to meet the Secretary’s concerns. 

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We thus conclude that Colorado’s issue-committee regulatory framework does 

not satisfy exacting scrutiny in this case. As applied to the Coalition, Colorado’s 

framework is unconstitutional under the First Amendment. 

III. CONCLUSION 

As in Sampson, we conclude that Colorado’s issue-committee regulatory 

framework is unconstitutional as applied to the Coalition. The government’s modest 

informational interest in the Coalition’s disclosures is not reflected in the burdens 

Colorado law imposes on the Coalition. We therefore affirm. 

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