Colorado requires that an issue committee name its registered agent on the face of its communications, along with a disclaimer about the committee’s identity. A committee must also disclose this information to the Secretary of State when it registers as a committee, which the Secretary then publishes.
Advocates there formed an issue committee called No on EE (“the Committee”) to oppose a tobacco and nicotine tax measure set for the November 2020 ballot. Per the aforementioned requirements, No on EE registered with the Colorado Secretary of State (“the Secretary”) and provided the name of its registered agent. The Committee’s initial communications disclosed its name on its ads but omitted its registered agent.
Someone filed a complaint with the Secretary about a month before the election. The Committee immediately added the agent’s name to its communications, but it had already spent up to $3.5 million.
An Administrative Law Judge imposed a $10,000 fine for violating the requirement. The Deputy Secretary then initiated agency review of the decision and increased the penalty to $30,000, which a district court upheld on review.
A Colorado Court of Appeals decision held unconstitutional the requirement that ballot measure committees include the name of their registered agents on all communications. The State appealed, and the Institute for Free Speech now represents No on EE at the Colorado Supreme Court.
The Institute argues that Colorado’s registered agent disclosure requirement violates the First Amendment because it is a content-based regulation of speech that does not further a compelling governmental interest—registered agents are neither donors nor decision-makers, so their names tell voters nothing about who funds or controls a committee’s message.
Moreover, the requirement cannot satisfy even the “exacting scrutiny” standard applied to campaign finance disclosures because, first, it lacks any substantial relationship to the state’s informational or speaker-identification interests, and, secondly, less restrictive alternatives exist, such as the State publishing the information, or even requiring that communications name officers or donors—those who control or fund the committees.
