Hick flick considered electioneering

The Colorado Statesman

Deputy Secretary of State Suzanne Staiert opined on Thursday afternoon that a well-known, conservative Washington, D.C.-based nonprofit should not be treated as traditional media and is thereby subject to financial disclosures in making a political film focused on Gov. John Hickenlooper and elected officials in Colorado.

Citizens United, famous for initiating a U.S. Supreme Court decision that opened the floodgates to unlimited campaign spending by corporations and unions, requested a declaratory order from the Colorado secretary of state’s office.

The petition requested that the secretary of state’s office rule as to whether a proposed documentary film featuring Colorado advocacy groups and their impact on state government and public policy qualifies as an expenditure or electioneering communication under Colorado law.

David N. Bossie, president of Citizens United, said at a hearing on Tuesday before the secretary of state’s office that the film would feature certain candidates who are up for re-election, including Hickenlooper, a Democrat.

He also indicated that much of the focus would be on the gun control laws passed by Democrats last year, which have been loathed by conservatives. Those laws prohibited high-capacity ammunition magazines of more than 15 rounds and required universal background checks and fees.

In its petition, Citizens United stated, “Excluding Citizens United’s film and its related advertising from the definitions of ‘electioneering communication’ and ‘expenditure’… would not ‘frustrate’ the purposes of [state law] because Citizens United is not a political committee that regularly seeks to influence Colorado’s elections.

“Instead, Citizens United would be acting in a manner consistent with that of a ‘service provider’ when it distributes and markets its film in Colorado, and it would be doing this in Colorado consistent with the manner that it distributes and markets its films elsewhere in the regular course and scope of its business,” the petition continued.

But Staiert disagreed, suggesting that the documentary would be an electioneering communication that does not fall within any of the exemptions.

“Citizens United’s upcoming film on advocacy groups in Colorado falls squarely within the definition of electioneering communication,” Staiert writes in her opinion.

She pointed out that Citizens United stated, “It is likely that the film will include unambiguous references [to] elected Colorado officials who are candidates for re-election this year…”

Staiert also highlighted that Citizens United stated that “marketing and distribution in Colorado is slated to occur within the 60-day window preceding the [election.]”

“Accordingly, I find that Citizens United’s forthcoming documentary is an electioneering communication under Colorado campaign finance law,” she wrote.

As for exceptions under electioneering law, Staiert pointed out that Citizens United does not deserve a press exemption because it is not print or broadcast media, and it is not the type of business to which the regular-business exception applies. She added that the organization is not distributing its film solely to its members.

Staiert also addressed potential First Amendment concerns by noting that the secretary of state “lacks the authority to apply well-reasoned, settled First Amendment law to Colorado.”

“Given the history of how Colorado courts have treated the Secretary’s attempts to apply federal principles to Colorado citizens in order to protect their First Amendment rights, I find that the Colorado Secretary of State simply lacks the authority to import [federal] analysis and decision regarding a ‘press exemption’ to Colorado,” explained Staiert. “As such, Petitioner’s remedy lies with courts in the form of litigation, the legislature in the form of a referendum, or the people in the form of an initiative.”

Her opinion frustrated Citizens United, which had argued at the hearing just days earlier that because it regularly distributes documentaries, it should be considered traditional media, which is exempt from “expenditure” or “electioneering communication.”

“Although we are disappointed with the decision, this is not the first time a ruling has not gone our way and we ultimately prevailed with that case at the United States Supreme Court,” Bossie said in a statement on Thursday after Staiert issued the opinion.

“The decision states the Secretary of State’s Office is hamstrung by the Colorado courts, which have instructed that office to disregard the commands of the First Amendment in construing Colorado’s campaign finance law,” he continued. “With this decision it is my core belief that the State of Colorado is infringing on Citizens United’s First Amendment rights under the U.S. Constitution.”

A spokesman for the organization said Citizens United is weighing its options, including appealing the decision in court.

The nonprofit has produced 23 documentaries since 2004, beginning with “Celsius 41.11,” which served as a response to liberal documentarian Michael Moore’s film “Fahrenheit 9/11,” a documentary that was critical of President George W. Bush’s military response to the Sept. 11 terrorist attacks.

Citizens United has licensed its films for television and even won awards for its productions, explained Bossie.

He said the main focus of the film in Colorado is “not on any candidate or elected official.

“On the other hand,” continued Bossie, “It would be impossible to give the film proper justice without including references to elected officials in the state, including the current governor and members of Congress and the state legislature.

“In discussing the 2013 battle over gun control, it would be impossible to thoroughly address that controversy… without mentioning or showing you images of Gov. Hickenlooper and members of the state legislature on both sides of the issue,” added Bossie.

He went on to clarify that the film would not endorse or oppose specific candidates. But Bossie acknowledged that it would be released in September, about two months before the general election.

“It is quite likely that material appearing in it, much like footage on the evening news broadcast, would include images and sound bites from events and activities such as political rallies,” he explained.

The conservative leader called the issue “fundamentally simple,” suggesting that the intent of Citizens United’s films is no different than that of Moore when he produces left-leaning documentaries.

“Michael Moore made a film in 2004, which was shown here in Colorado. His advertisements were shown here in Colorado. I think he should be able to make that film. I don’t agree with his content, but I agree with his intent on making a film that he feels passionately about,” opined Bossie.

“The American people, the people of the state of Colorado, can make their own decisions… people are very smart,” he continued.

Michael Boos, the vice president and attorney for Citizens United, said his organization serves a legitimate press function.

He pointed out that in 2010, the Federal Election Commission ruled that Citizens United’s films and subsequent advertising were exempt from the definitions of “expenditure” and “electioneering communication.” The FEC found that the films qualified the organization as a “press entity.” But the FEC declined to rule whether or not the films and advertising were also exempt as a commercial activity.

“Citizens United… is not a political committee, nor does it regularly undertake electioneering communications for the purpose of influencing elections,” Boos stated during the hearing.

“We’re like a service provider…” he added. “We’re selling a product. We’re not seeking to influence the outcome of an election.”

Concerns raised over request

While the petition was made to Secretary of State Scott Gessler, a Republican, Staiert presided over the hearing and made the ruling. Gessler is running for governor to replace Hickenlooper; some raised concerns over a conflict of interest.

But Gessler still attended the hearing on Tuesday. His questions seemed to poke holes in the arguments made by Citizens United. Gessler is an election law attorney who is considered an expert on the topic.

“[The courts] seem to say that the only reason broadcast facilities, like a news station, are allowed to achieve their press exemption… [is because] they do it in the regular course of their business, and if it wasn’t for that regular course of business then… that would in fact be regulated under campaign finance law,” suggested Gessler.

“Are you saying that we should essentially disregard the recent court… decision…?” asked the secretary. “I don’t see how we can enforce the whole FEC construct to preserve the constitutionality of this.”

Staiert appeared equally concerned during the hearing, adding, “I’m just trying to understand… in your petition you essentially admit that there may be things that could qualify as electioneering, yet it seems like maybe you’re going to try to draw a line when you make the film.”

Democrats are also concerned about the request made by Citizens United. Martha Tierney, an attorney for the Colorado Democratic Party, pointed out that there is no way to factually determine what the content of the film would be because Citizens United hasn’t made the film yet.

“We can’t determine based on theoretical statements what the movie will say,” she testified during the hearing.

She also believes the declaratory order is meaningless, considering the secretary of state’s office doesn’t have authority over the courts. She said existing law doesn’t allow for the exemption, and so a declaratory order is not enough authority.

“The secretary can’t resolve any kind of uncertainty by issuing a declaratory order here,” opined Tierney. “Any person can file a campaign finance complaint regardless of whether there is a declaratory order or not…

“In terms of the use of that tool under our regulatory structure, I don’t think this is an appropriate use of that tool,” she continued.

Left-leaning groups weighed in as well, including Colorado Common Cause, which examines elections and money in politics. Ben Larson, representing the organization, echoed concerns about giving the green light to a film that hasn’t been produced yet.

“It’s difficult for me to understand how we can determine whether that exception applies when we haven’t even seen the film,” declared Larson.

Colorado Ethics Watch, a government watchdog group, also expressed fears over approving the exemption before the content of the film could be analyzed.

“I just don’t see that that can be ruled upon one way or the other in any meaningful way to determine controversy,” said Luis Toro, director of Colorado Ethics Watch. “We just don’t know what the messages are going to be.

“How can we buy this film and say that it does not meet the expenditure definition before anyone has seen it?” he asked.

One citizen also spoke at the hearing. David Sherman appeared dismayed that Citizens United would even ask to hide its financial backers, equating the petition to someone yelling “fire” in a public setting.

“If someone were to go into a crowded room and yell ‘fire,’ one of the first questions that would be asked is, ‘Who was that person?’” explained Sherman. “That seems to be what’s going on here. There is a movie that’s being made, it’s going to be released within 60 days of the election, and there’s an attempt being made to not let the public know who is behind the making of the movie.”

He pointed out that Citizens United produced “Occupy Unmasked,” which sought to reveal the “sinister, organized and highly orchestrated nature of its leaders,” according to the filmmakers.

Sherman said it is hypocritical of Citizens United to produce a film seeking to “unmask” a movement, when Citizens United itself is attempting to hide its own backers.

“The ‘Occupy Unmasked’ movie, that movie seems to seek to reveal who is behind the Occupy movement,” said Sherman. “It seems odd to me that there would be an attempt to hide who is behind this movie.”

Peter@coloradostatesman.com