Colorado § 1-45-103 - Definitions.

§ 1-45-103. Definitions.

As used in this article 45, unless the context otherwise requires:

(1) "Appropriate officer" shall have the same meaning as set forth in section 2 (1) of article XXVIII of the state constitution.

(1.3) "Ballot issue" shall have the same meaning as set forth in section 1-1-104 (2.3); except that, for purposes of section 1-45-117, "ballot issue" shall mean both a ballot issue as defined in this subsection (1.3) and a ballot question.

(1.5) "Ballot question" shall have the same meaning as set forth in section 1-1-104 (2.7).

(2) "Candidate" has the same meaning as set forth in section 2 (2) of article XXVIII of the state constitution; except that:

(a) "Candidate" also includes a candidate for a major political party vacancy election conducted pursuant to section 1-12-203 (1.5) and a vacancy contender who has publicly announced an intention to be selected by a vacancy committee to fill a vacancy in the general assembly and thereafter has received a contribution or made an expenditure in support of the candidacy. A vacancy contender remains a candidate for purposes of this article 45 so long as the vacancy contender maintains a registered candidate committee. A vacancy contender who maintains a candidate committee after a vacancy committee has filled the applicable vacancy in the general assembly, but who has not publicly announced an intention to seek election to the general assembly in the next or any subsequent election cycle, is a candidate for purposes of this article 45.

(b) "Candidate" also includes a candidate for a county commissioner vacancy election.

(3) "Candidate committee" shall have the same meaning as set forth in section 2 (3) of article XXVIII of the state constitution.

(4) "Candidate committee account" shall mean the account established by a candidate committee with a financial institution pursuant to section 3 (9) of article XXVIII of the state constitution.

(5) "Conduit" shall have the same meaning as set forth in section 2 (4) of article XXVIII of the state constitution.

(6) (a) "Contribution" shall have the same meaning as set forth in section 2 (5) of article XXVIII of the state constitution.

(b) "Contribution" includes, with regard to a contribution for which the contributor receives compensation or consideration of less than equivalent value to such contribution, including, but not limited to, items of perishable or nonpermanent value, goods, supplies, services, or participation in a campaign-related event, an amount equal to the value in excess of such compensation or consideration as determined by the candidate committee.

(c) "Contribution" also includes:

(I) Any payment, loan, pledge, gift, advance of money, or guarantee of a loan made to any political organization;

(II) Any payment made to a third party on behalf of and with the knowledge of the political organization; or

(III) The fair market value of any gift or loan of property made to any political organization.

(d) "Contribution" does not include the payment of legal fees to advise a candidate on compliance with campaign laws or regulations or to represent a candidate or candidate committee in any action in which the candidate or committee has been named as a defendant. Such legal services are not undertaken "for the benefit of any candidate committee" or "for the purpose of promoting the candidate's nomination, retention, recall, or election" as those phrases are used in section 2 (5)(a)(II) and (5)(a)(IV) of article XXVIII of the state constitution.

(e) "Contribution" does not include an intervention by the secretary of state, as authorized by section 1-45-111.5 (1.5)(g), in any action brought to enforce the provisions of article XXVIII of the state constitution or this article 45.

(7) "Corporation" means a domestic corporation incorporated under and subject to the "Colorado Business Corporation Act", articles 101 to 117 of title 7, C.R.S., a domestic nonprofit corporation incorporated under and subject to the "Colorado Revised Nonprofit Corporation Act", articles 121 to 137 of title 7, C.R.S., or any corporation incorporated under and subject to the laws of another state. For purposes of this article, "domestic corporation" shall mean a for-profit or nonprofit corporation incorporated under and subject to the laws of this state, and "nondomestic corporation" shall mean a corporation incorporated under and subject to the laws of another state or foreign country. For purposes of this article, "corporation" includes the parent of a subsidiary corporation or any subsidiaries of the parent, as applicable.

(7.2) "Direct ballot issue or ballot question expenditure" means direct spending in support of or opposition to any single ballot issue or ballot question by a person who does not otherwise meet the requirements of an issue committee. Contributions to an issue committee are not direct ballot issue or ballot question expenditures.

(7.3) (a) "Donation" means:

(I) The payment, loan, pledge, gift, or advance of money, or the guarantee of a loan, made to any person for the purpose of making an independent expenditure;

(II) Any payment made to a third party that relates to, and is made for the benefit of, any person that makes an independent expenditure;

(III) The fair market value of any gift or loan of property that is given to any person for the purpose of making an independent expenditure; or

(IV) Anything of value given, directly or indirectly, to any person for the purpose of making an independent expenditure.

(b) "Donation" shall not include a transfer by a membership organization of a portion of a member's dues for an independent expenditure sponsored by such membership organization.

(7.5) "Earmark" means a designation, instruction, or encumbrance that directs the transmission and use by the recipient of all or part of a donation to a third party for the purpose of making:

(a) Independent expenditures greater than one thousand dollars to support or oppose a specified candidate;

(b) Electioneering communications greater than one thousand dollars; or

(c) Contributions or expenditures greater than one thousand dollars to support or oppose a specified ballot issue or ballot question.

(8) "Election cycle" has the same meaning as set forth in section 2 (6) of article XXVIII of the state constitution; except that:

(a) For a vacancy committee selection process used to fill a vacancy in the general assembly pursuant to section 1-12-203, "election cycle" means the period beginning on the effective date of the vacancy in the general assembly and ending thirty days following the date upon which the vacancy committee selects an individual to fill the vacancy;

(b) For major political party vacancy elections held pursuant to section 1-12-203 (1.5), "election cycle" means the period beginning on the date upon which a vacancy committee selects a member to fill the vacancy in the general assembly pursuant to section 1-12-203, and ending thirty days following the major political party vacancy election; and

(c) For county commissioner vacancy elections held pursuant to section 1-12-206, "election cycle" means the period beginning on the date the vacancy to be filled by vacancy election occurred and ending thirty days following the vacancy election for that office.

(9) "Electioneering communication" has the same meaning as set forth in section 2 (7) of article XXVIII of the state constitution. For purposes of the disclosure required by section 1-45-108, "electioneering communication" also includes any communication that satisfies all other requirements set forth in said section 2 (7) of article XXVIII but that is broadcast, printed, mailed, delivered, or distributed between the primary election and the general election.

(10) (a) "Expenditure" has the same meaning as set forth in section 2 (8) of article XXVIII of the state constitution.

(b) "Expenditure" does not include legal services paid to defend a candidate or candidate committee against any action brought to enforce the provisions of article XXVIII of the state constitution or this article 45.

(10.5) "Foreign corporation" means:

(a) A parent corporation or the subsidiary of a parent corporation formed under the laws of a foreign country that is functionally equivalent to a domestic corporation;

(b) A parent corporation or the subsidiary of a parent corporation in which one or more foreign persons hold a combined ownership interest that exceeds fifty percent;

(c) A parent corporation or the subsidiary of a parent corporation in which one or more foreign persons hold a majority of the positions on the corporation's board of directors; or

(d) A parent corporation or the subsidiary of a parent corporation whose United States-based operations, or whose decision-making with respect to political activities, falls under the direction or control of a foreign entity, including the government of a foreign country.

(11) "Independent expenditure" shall have the same meaning as set forth in section 2 (9) of article XXVIII of the state constitution.

(11.5) "Independent expenditure committee" means one or more persons that make an independent expenditure in support of or in opposition to a candidate in an aggregate amount in excess of one thousand dollars or that collect in excess of one thousand dollars from one or more persons for the purpose of making an independent expenditure.

(12) (a) "Issue committee" shall have the same meaning as set forth in section 2 (10) of article XXVIII of the state constitution.

(b) For purposes of section 2 (10)(a)(I) of article XXVIII of the state constitution, "major purpose" means support of or opposition to a ballot issue or ballot question that is reflected by:

(I) An organization's specifically identified objectives in its organizational documents at the time it is established or as such documents are later amended; or

(II) An organization's demonstrated pattern of conduct based upon it:

(A) and (B) (Deleted by amendment, L. 2022.)

(C) During the combined period of the current calendar year and the preceding two calendar years, making either contributions to one or more statewide Colorado issue committees or direct ballot issue or ballot question expenditures, in either support of or opposition to one or more statewide Colorado ballot issues or ballot questions, that exceeded thirty percent of the total dollar amount of all funds spent by the organization for any purpose and in any location during the entire preceding and current calendar years;

(D) During the combined period of the current calendar year and the preceding two calendar years, making either contributions to a single statewide Colorado issue committee or direct ballot issue or ballot question expenditures, in either support of or opposition to a single statewide Colorado ballot issue or ballot question, that exceeded twenty percent of the total dollar amount of all funds spent by the organization for any purpose and in any location; or

(E) Acting as an issue committee's funding intermediary by making contributions to an issue committee from funds earmarked for the issue committee.

(c) The provisions of paragraph (b) of this subsection (12) are intended to clarify, based on the decision of the Colorado court of appeals in Independence Institute v. Coffman, 209 P.3d 1130 (Colo. App. 2008), cert. denied, 558 U.S. 1024, 130 S. Ct. 165, 175 L. Ed. 479 (2009), section 2 (10)(a)(I) of article XXVIII of the state constitution and not to make a substantive change to said section 2 (10)(a)(I).

(12.5) "Media outlet" means a publication or broadcast medium that transmits news, feature stories, entertainment, or other information to the public through various distribution channels, including, without limitation, newspapers; magazines; radio; and broadcast, cable, or satellite television.

(12.7) "Obligating" means, in connection with a named candidate, agreeing to spend in excess of one thousand dollars for an independent expenditure or to give, pledge, loan, or purchase one or more goods, services, or other things of value that have a fair market value in excess of one thousand dollars as an independent expenditure. "Obligating" shall not require that the total amount in excess of one thousand dollars be finally determined at the time of the agreement to spend moneys for an independent expenditure or to give, pledge, loan, or purchase anything of value.

(13) "Person" shall have the same meaning as set forth in section 2 (11) of article XXVIII of the state constitution.

(14) "Political committee" shall have the same meaning as set forth in section 2 (12) of article XXVIII of the state constitution.

(14.5) "Political organization" means a political organization defined in section 527 (e)(1) of the federal "Internal Revenue Code of 1986", as amended, that is engaged in influencing or attempting to influence the selection, nomination, election, or appointment of any individual to any state or local public office in the state and that is exempt, or intends to seek any exemption, from taxation pursuant to section 527 of the internal revenue code. "Political organization" shall not be construed to have the same meaning as "political organization" as defined in section 1-1-104 (24) for purposes of the "Uniform Election Code of 1992", articles 1 to 13 of this title.

(15) "Political party" shall have the same meaning as set forth in section 2 (13) of article XXVIII of the state constitution.

(15.3) "Regular biennial school election" means the election that is described in section 22-31-104 (1), C.R.S.

(15.5) "Regular biennial school electioneering communication" has the same meaning as "electioneering communication" as defined in section 2 (7) of article XXVIII of the state constitution; except that, for purpose of the definition of regular biennial school electioneering communication only, "candidate" as referenced in section 2 (7)(a)(I) of said article means a candidate in a regular biennial school election and the requirements specified in section 2 (7)(a)(II) mean a communication that is broadcast, printed, mailed, delivered, or distributed within sixty days before a regular biennial school election. Except as otherwise specified in this subsection (15.5), the definition of "regular biennial school electioneering communication" is the same as that of "electioneering communication".

(15.7) "School district director" means a person serving as a director on the board of education of any school district within the state, including a school district composed of a city and county.

(16) "Small donor committee" shall have the same meaning as set forth in section 2 (14) of article XXVIII of the state constitution.

(16.3) (a) "Small-scale issue committee" means an issue committee that has accepted or made contributions or expenditures in an amount that does not exceed five thousand dollars during an applicable election cycle for the major purpose of supporting or opposing any ballot issue or ballot question.

(b) The following are treated as a single small-scale issue committee:

(I) All small-scale issue committees that support or oppose a common ballot measure if the committees are established, financed, maintained, or controlled by a single corporation or its subsidiaries;

(II) All small-scale issue committees that support or oppose a common ballot measure if the committees are established, financed, maintained, or controlled by a single labor organization or the affiliated local units it directs; or

(III) All small-scale issue committees that support or oppose a common ballot measure if the committees are established, financed, maintained, or controlled by substantially the same person, group of persons, or other organizations.

(16.4) "Special school election" means any school election provided for by law and held at a time other than the regular biennial school election.

(16.5) "Spending" means funds expended influencing or attempting to influence the selection, nomination, election, or appointment of any individual to any state or local public office in the state and includes, without limitation, any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything else of value by any political organization, a contract, promise, or agreement to expend funds made or entered into by any political organization, or any electioneering communication by any political organization.

(17) "Subsidiary" means a business entity having more than half of its stock owned by another entity or person, or a business entity of which a majority interest is controlled by another person or entity.

(18) "Unexpended campaign contributions"shall have the same meaning as set forth in section 2 (15) of article XXVIII of the state constitution.

(19) "Vacancy contender" means any person who seeks to be selected by a vacancy committee to fill a vacancy in the general assembly pursuant to section 1-12-203.

Source: Initiated 96: Entire article R&RE, effective upon proclamation of the Governor, January 15, 1997. L. 98: (1) added and (8) amended, p. 223, § 1, effective April 10; (1.5) amended and (14) added, p. 954, § 1, effective May 27. L. 99: (5) amended, p. 1390, § 12, effective June 4. L. 2000: (1.3), (4)(a)(V), and (4.5) added and (4)(a)(III), (10)(b), and (12) amended, pp. 122, 123, §§ 2, 3, effective March 15; (8) amended, p. 1724, § 1, effective June 1. L. 2002: (8)(a)(I) amended and (8)(a)(III) added, p. 198, § 1, effective April 3; (1.5) and (2) amended, p. 1576, § 1, effective July 1. Initiated 2002: Entire section repealed, effective upon proclamation of the Governor (see editor's note, (2)). L. 2003: Entire section RC&RE, p. 2156, § 1, effective June 3. L. 2007: (7) amended, p. 1766, § 1, effective June 1; (6)(c), (14.5), and (16.5) added, pp. 1225, 1224, §§ 2, 1, effective July 1. L. 2009: (1.3) and (1.5) added, (HB 09-1153), ch. 174, p. 774, § 1, effective September 1. L. 2010: (7) amended and (7.3), (7.5), (10.5), (11.5), (12.5), and (12.7) added, (SB 10-203), ch. 269, p. 1229, § 2, effective May 25; (12) amended, (HB 10-1370), ch. 270, p. 1241, § 4, effective January 1, 2011. L. 2011: (12)(c) amended, (HB 11-1303), ch. 264, p. 1148, § 2, effective August 10. L. 2016: (16.3) added, (SB 16-186), ch. 269, p. 1113, § 1, effective June 10; (15.3) and (15.5) added, (HB 16-1282), ch. 267, p. 1105, § 1, effective August 10. L. 2018: (6)(d) and (6)(e) added and (10) amended, (HB 18-1047), ch. 155, p. 1091, § 1, effective April 23. L. 2019: IP and (7.5) amended and (16.3) R&RE, (HB 19-1318), ch. 328, p. 3040, § 1, effective August 2; IP and (9) amended, (SB 19-068), ch. 69, p. 250, § 1, effective August 2. L. 2022: (7.2) added and (7.5) and (12)(b)(II) amended (SB 22-237), ch. 400, p. 2851, § 1, effective June 7; (15.7) and (16.4) added, (HB 22-1060), ch. 99, p. 472, § 1, effective July 1. L. 2023: (11.5) amended, (SB 23-276), ch. 399, p. 2394, § 46, effective June 6. L. 2025: (2) and (8) amended, (HB 25-1319), ch. 272, p. 1408, § 4, effective May 28; (2) and (8) amended and (19) added, (HB 25-1315), ch. 180, p. 774, § 5, effective August 6.

Editor's note: (1) This section is similar to former § 1-45-103 as it existed prior to 1996.

(2) (a) Subsection (4) of section 1 of article V of the state constitution provides that initiated and referred measures shall take effect from and after the official declaration of the vote thereon by the proclamation of the Governor. The measure enacting article XXVIII of the state constitution takes effect upon proclamation of the vote by the Governor. The Governor's proclamation was issued on December 20, 2002. However section 13 of the measure enacting article XXVIII of the state constitution provides that the effective date of article XXVIII is December 6, 2002.

(b) Prior to the recreation and reenactment of this section in 2003, this section was repealed by an initiated measure that was adopted by the people in the general election held November 5, 2002. Section 12 of article XXVIII provides for the repeal of this section. For the text of the initiative and the vote count, see Session Laws of Colorado 2003, p. 3609.

(3) Prior to the reenactment of subsection (16.3) on August 2, 2019, subsection (16.3)(c) provided for the repeal of subsection (16.3), effective June 30, 2019. (See. L. 2016, p. 1113.)

(4) Amendments to subsections (2) and (8) by HB 25-1319 and HB 25-1315 were harmonized.

Cross references: (1) For the legislative declaration in the 2010 act amending subsection (7) and adding subsections (7.3), (7.5), (10.5), (11.5), (12.5), and (12.7), see section 1 of chapter 269, Session Laws of Colorado 2010.

(2) For the legislative declaration in the 2010 act amending subsection (12), see section 1 of chapter 270, Session Laws of Colorado 2010.

(3) For the legislative declaration in the 2011 act amending subsection (12)(c), see section 1 of chapter 264, Session Laws of Colorado 2011.

ANNOTATION

Annotator's note. Since § 1-45-103 is similar to § 1-45-103 as it existed prior to its repeal in 2002, relevant cases construing that provision and its predecessors have been included in the annotations to this section.

Phrases unconstitutional. The phrase in subsection (7), "which unambiguously refer to any specific public office or candidate for such office, but does not include expenditures made by persons, other than political parties and political committees, in the regular course and scope of their business and political messages sent solely to their members[,]" is unconstitutional under the first amendment. Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174 (10th Cir. 2000).

The phrase in subsection (11), "or which unambiguously refers to such candidate[,]" is unconstitutional under the first amendment. Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174 (10th Cir. 2000).

The court concluded that the unconstitutional phrases were severable and declared subsections (7) and (11) invalid only insofar as they reach beyond that which may constitutionally be regulated. Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174 (10th Cir. 2000).

It is apparent from the plain language of subsection (2) that a candidate committee may be comprised of one person only and that the candidate acting alone may be a candidate committee. Thus, a candidate committee who acts alone for the purpose of receiving campaign contributions or making campaign expenditures is a candidate committee subject to the disclosure requirements of this article. Therefore, the expenditures made by a candidate from the candidate's personal funds before certification of his or her committee were either contributions to the ultimately certified candidate committee or expenditures by a separate campaign committee composed of the candidate alone. Hlavec v. Davidson, 64 P.3d 881 (Colo. App. 2002) (decided under section that was repealed by article XXVIII of the state constitution).

Court's interpretation of the term "candidate committee" to include expenditures of personal money by the candidate on his or her campaign does not limit the amount of money a candidate could personally spend on his or her campaign in violation of the first amendment. The act does not specifically address whether a candidate's personal expenditures are contributions. However, in light of Buckley v. Valeo, 424 U.S. 1 (1976), the definition of "contribution" contained in subsection (4) does not include a candidate's expenditures of personal funds and contributions made by the candidate to his or her own candidate committee. Accordingly, the court rejected candidate's first amendment argument. Hlavec v. Davidson, 64 P.3d 881 (Colo. App. 2002) (decided under section that was repealed by article XXVIII of the state constitution).

A contribution under § 2(5)(a)(IV) of article XXVIII of the state constitution and as incorporated by reference into subsection (6)(a) of this section requires that: (1) a thing of value (2) be given to a candidate, either directly or indirectly, (3) in order to promote the candidate's nomination, retention, recall, or election. Keim v. Douglas County Sch. Dist., 2017 CO 81, 397 P.3d 377.

Term "independent expenditure" in subsection (7) permits the regulation of only those expenditures that are used for communications that expressly advocate the election or defeat of a clearly identified candidate. This standard includes the words and phrases listed in Buckley v. Valeo, 424 U.S. 1 (1976), and other substantially similar or synonymous words. This approach remains focused on actual words, as contrasted with images, symbols, or other contextual factors, provides adequate notice in light of due process concerns, and strikes an appropriate balance between trying to preserve the goals of campaign finance reform and protecting political speech. League of Women Voters v. Davidson, 23 P.3d 1266 (Colo. App. 2001).

None of the advertisements of so-called educational committee at issue amounted to "express advocacy" as that term is applied in Buckley and progeny and, therefore, so-called educational committee was not subject to the requirements of the Fair Campaign Practices Act. League of Women Voters v. Davidson, 23 P.3d 1266 (Colo. App. 2001).

The term "issue" in subsection (8) includes an initiative that has gone through the title-setting process, but has not been formally certified for the election ballot. To construe the term to include only measures actually placed on the ballot would frustrate the purposes of the Campaign Reform Act by allowing groups to raise and spend money, without limit and without disclosure to the public, to convince electors to sign or not to sign a particular petition, thus significantly influencing its success or failure. Colo. for Family Values v. Meyer, 936 P.2d 631 (Colo. App. 1997).

Telephone opinion poll was not "electioneering" and thus did not constitute an "electioneering communication" within the meaning of subsection (9) of this section and § 6 of article XXVIII of the state constitution. In giving effect to the intent of the electorate, court gives term "communication" its plain and ordinary meaning. Court relies upon dictionary definitions of "communication" that contemplate imparting a message to, rather than having mere contact with, another party. In reviewing scripts used by telephone opinion pollster, "communication" occurred because "facts, information, thoughts, or opinions" were "imparted, transmitted, interchanged, expressed, or exchanged" by pollster to those it called. Telephone opinion pollster, therefore, communicated information to members of the electorate during its opinion poll. Harwood v. Senate Majority Fund, LLC, 141 P.3d 962 (Colo. App. 2006).

Telephone opinion poll, however, did not satisfy meaning of electioneering. Colorado electorate intended article XXVIII to regulate communication that expresses "electorate advocacy" and tends to "influence the outcome of Colorado elections". This conclusion is reinforced by plain and ordinary meaning of term "electioneering". Court relies upon dictionary definitions suggesting that "electioneering" is defined by such activities as taking an active part in an election campaign, campaigning for one's own election, or trying to sway public opinion especially by the use of propaganda and that "campaigning" means influencing the public to support a particular candidate, ticket, or measure. Here, telephone opinion poll did not seek to influence voters or sway public opinion but instead merely asked neutral questions to collect data and measure public opinion. Accordingly, telephone opinion poll did not constitute an "electioneering communication" under subsection (9) of this section and article XXVIII of the state constitution. Harwood v. Senate Majority Fund, LLC, 141 P.3d 962 (Colo. App. 2006).

The term "issue committee" covers only those issue committees that were formed for the purpose of supporting or opposing a ballot initiative. An association that was formed and operated for purposes other than "accepting contributions or making expenditures to support or oppose any ballot issue or ballot question" does not become an "issue committee" as defined in this section if, at a future point in time, it engages in those activities with regard to a specific ballot issue or ballot question. Common Sense Alliance v. Davidson, 995 P.2d 748 (Colo. 2000).

A "political committee" is formed when two or more persons associate themselves with the original purpose of making independent expenditures. Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174 (10th Cir. 2000).

The term "political committee" in subsection (10) includes a for-profit corporation which makes contributions, contributions in kind, or expenditures to or on behalf of state political campaigns out of its ordinary corporate treasury. Therefore, such corporation is required to file a statement of organization, to report its contributions, contributions in kind, and expenditures, and otherwise to comply with any filing and reporting requirements of the Campaign Reform Act of 1974. Colo. Common Cause v. Meyer, 758 P.2d 153 (Colo. 1988) (decided prior to 1988 amendment to subsection (10)).

While the stated purposes for the formation of an organization may be one criterion upon which to determine whether it is a "political committee", such purposes are not conclusive. To so hold would permit regulable conduct to escape regulation merely because the stated purposes were misleading, ambiguous, fraudulent, or all three. In addition, such a holding would exalt form over substance and would almost entirely eviscerate the Fair Campaign Practices Act and make a mockery of legitimate attempts at campaign finance reform. League of Women Voters v. Davidson, 23 P.3d 1266 (Colo. App. 2001).

The use of the disjunctive term "or" in subsection (11) renders the definition of "political message" applicable to messages that "unambiguously refer to a candidate", even if such messages do not also "advocate the election or defeat" of that candidate. Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174 (10th Cir. 2000).

To qualify as a political message under subsection (11), a message need only: (1) Be delivered by telephone, any print or electronic media, or other written material, and (2) either (a) advocate the election or defeat of any candidate or (b) unambiguously refer to such candidate. Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174 (10th Cir. 2000).

Voter guides that unambiguously refer to specific candidates but do not expressly advocate the election or defeat of any candidate constitute "political messages" as defined in subsection (11). Therefore, the funds expended to produce and disseminate the voter guides are subject to regulation as "independent expenditures" as the term is defined in subsection (7). Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174 (10th Cir. 2000).

"Expressly advocating" for purposes of the definition of expenditure in subsection (10) is limited to speech that explicitly exhorts the viewer or reader to vote for or against a candidate in an upcoming election using either the "magic words" described in Buckly v. Valeo, 424 U.S. 1, 44 n.52 (1976), or substantially similar words. The court declined to adopt a functional equivalence test for "express advocacy" that would be difficult to apply and unconstitutionally chill political speech. None of the 17 ads at issue contained any of the magic words or substantially similar synonyms. Accordingly, because none of the ads constituted "expenditures", neither of the two political organizations that distributed the ads were subject to regulation as "political committees". Colo. Ethics v. Senate Majority Fund, LLC, 2012 CO 12, 269 P.3d 1248.

Administrative law judge (ALJ) did not err in concluding that definition of "expenditures" did not apply to metropolitan district boards. Respondents had argued that the metropolitan districts qualified as "persons" that could expend payments on behalf of issue committee supporting ballot issue. Even if the definition of "person" could be stretched to cover political subdivisions of the state such as metropolitan districts, respondents failed to explain how the payments at issue were "made with the prior knowledge and consent of an agent" of the issue committee that was not yet formed in order to bring such payments within the definition of "expenditure". Skruch v. Highlands Ranch Metro. Dists., 107 P.3d 1140 (Colo. App. 2004).

ALJ did not err by interpreting "expenditure" to occur when a payment is made and when there is a contractual agreement and the amount is determined. The use of the disjunctive "or" in the definition of "expenditure" indicates that an expenditure is made if either criterion is met after the ballot title is submitted. Skruch v. Highlands Ranch Metro. Dists., 107 P.3d 1140 (Colo. App. 2004).

ALJ erred by failing to determine whether major purpose of nonprofit association engaging in political advocacy was the nomination or election of candidates. Alliance for Colorado's Families v. Gilbert, 172 P.3d 964 (Colo. App. 2007).

ALJ correctly construed the phrase "for the purpose of" in § 2(5)(a)(IV) of article XXVIII of the state constitution in accordance with its plain meaning to indicate "an anticipated result that is intended or desired" and not "with the effect of". Such a construction would improperly conflate the distinct concepts of purpose and effect. Such an interpretation would also lead to unintended consequences far beyond the scope of issues presented in the case. CEW v. City & County of Broomfield, 203 P.3d 623 (Colo. App. 2009).

Since effect of city employees' actions, rather than their intent, is to be examined, court further rejects argument that intent is to be gauged by objective rather than subjective criteria. Inquiry into purpose requires examination of the intent of the person alleged to have made a campaign contribution. ALJ considered evidence concerning the city employees' intent and determined, on the basis of substantial evidence in the record, that organization bringing campaign finance complaint had not met its burden of proving that the employees provided services for the purpose of promoting a campaign even though employees knew information would be helpful to the candidates to whom the information was provided. Organization's interpretation improperly equates knowledge of the possible effects of one's actions with an intent to achieve a particular result. Accordingly, ALJ correctly determined that city's contribution of staff time was not "for the purpose of" promoting a political campaign. CEW v. City & County of Broomfield, 203 P.3d 623 (Colo. App. 2009).

Political committee's spending on legal expenses did not qualify as an "expenditure". The meaning of expenditure under § 2(8)(a) of article XXVIII of the state constitution and subsection (10) of this section is limited to spending for "expressly advocating" the election or defeat of a candidate, and express advocacy is limited further still to advocacy by use of "magic words" or substantially similar synonyms. Money spent for legal expenses is not spent for expressly advocating the election or defeat of a candidate and therefore is not an expenditure. Camp. Integ. Watchdog v. Alliance for Safe, 2018 CO 7, 409 P.3d 357.

Payment by unions of staff salaries for time spent organizing walks to distribute political literature and payments of other costs associated with related political activities did not constitute prohibited expenditures in violation of § 3(4)(a) of article XXVIII of the state constitution. Whether payments made by the union are prohibited as "expenditures" depends upon whether they are exempt from regulation by the membership communication exception in § 2(8)(b)(III) of article XXVIII of the state constitution as payments for "any communication solely to members and their families". The membership communication exception must be construed broadly to reflect the plain language of this constitutional provision and to satisfy the demands of the first amendment. The membership communication exception as construed applies to most of the union's activities in this case. To the extent that the challenged union activities are not embraced by the membership communication exception, the administrative law judge correctly held that person filing campaign finance complaint failed to prove facts demonstrating that an expenditure was made. Colo. Educ. Ass'n v. Rutt, 184 P.3d 65 (Colo. 2008).

The membership communication exception found in § 2(8)(b)(III) of article XXVIII of the state constitution must be extended to and embraced within the definition of "contribution". To hold otherwise nullifies the exception. The same conduct may not be protected by the membership communication exception to expenditures, that is, treated as an exempt expenditure, yet, at the same time, be prohibited as a nonexempt contribution. Such a result would be contrary to the intent of the electorate and constitute an unreasonable and disharmonious application of this article. Colo. Educ. Ass'n v. Rutt, 184 P.3d 65 (Colo. 2008).

Unions' challenged conduct does not meet the pertinent definitions of a contribution under § 2(5)(a)(II) and (5)(a)(IV) of article XXVIII of the state constitution and subsection (6) of this section. Facts may reasonably be viewed in two contradictory ways: One advancing the union's argument that the payment of union staff salaries for organizing political events were paid for the benefit of the unions and their members and thus exempt from regulation; the other that the payments constituted payments made to a third party for the benefit of the candidate or anything of value given indirectly to the candidate and, thus, were prohibited contributions. When the first amendment is at stake, the tie goes to the speaker rather than to censorship and regulation. On the facts of this case, the unions did not make any prohibited contributions in violation of § 3(4)(a) of article XXVIII of the state constitution. Colo. Educ. Ass'n v. Rutt, 184 P.3d 65 (Colo. 2008).

School district did not make a prohibited contribution to a campaign under § 2(5)(a)(IV) of article XXVIII and § 1-45-117 (1)(a)(I). A research report from a national think tank supportive of a school district's educational reform efforts that the district commissioned and paid for with public funds constitutes a "thing of value" for purposes of the definition of "contribution". The district did not make a prohibited contribution to a campaign, however, when it broadly disseminated an email of the report to county residents. Something of value is not given to a candidate when it is publicly distributed, even if the candidate happens to be among the public to which the thing of value has been made available. Keim v. Douglas County Sch. Dist., 2017 CO 81, 397 P.3d 377.

Uncompensated legal services are not contributions to a political organization under subsection (6)(b). The constitutional definition of "contribution" does not address political organizations, and neither part of the definition in subsection (6) covers legal services donated to political organizations. Subsection (6)(b) does not apply to political organizations and the word "gift" in subsection (6)(c)(I) does not include gifts of services. Coloradans Bet. Fut. v. Camp. Int. Watchdog, 2018 CO 6, 409 P.3d 350.

Payments to a law firm to defend political committee in tort suit are a reportable contribution under § 2(5)(a)(II) of article XXVIII of the state constitution. Because the law firm that defended the political committee and the court of appeals were both third parties in relation to the political committee, the payment of filing fees to the court and of legal fees to the law firm were "payment[s] made to a third party." And the payments were "for the benefit" of the political committee because they furthered the committee's legal defense. Because the payments of the political committee's legal expenses were contributions to the committee under § 2(5)(a)(II), the committee was required to report them as contributions under § 1-45-108 (1)(a)(I). Camp. Integ. Watchdog v. Alliance for Safe, 2018 CO 7, 409 P.3d 357.

Because coordination, as a concept or as a matter of law, is not required to protect the rights of the maker of a contribution under the circumstances of this case, court declines to impose a requirement of coordination on the definition of contribution to satisfy first amendment requirements. While a finding of coordination may be necessary to protect the recipient of an indirect contribution from unwittingly violating this article, that issue is not raised by this case. Colo. Educ. Ass'n v. Rutt, 184 P.3d 65 (Colo. 2008).

Television advertisements urging voters to oppose incumbent member met the definition of electioneering communications under § 2(7)(a) of article XXVIII of state constitution. Unambiguous reference to "any communication" in definition does not distinguish between express advocacy and advocacy that is not express. Further, subsection (7)(a) is triggered when a communication is made within 30 days before a primary election or 60 days before a general election, without regard to the communication's purpose. Colo. Citizens for Ethics in Gov't v. Comm. for the Am. Dream, 187 P.3d 1207 (Colo. App. 2008).

Regular business exception in § 2(7)(b)(III) of article XXVIII of the state constitution is limited to persons whose business is to broadcast, print, publicly display, directly mail, or hand deliver candidate-specific communications within the named candidate's district as a service rather than to influence elections. Wording of exception shows that the phrase "in the regular course and scope of their business" does not apply to political committees. Accordingly, political committee does not come within the regular business exception. Colo. Citizens for Ethics in Gov't v. Comm. for the Am. Dream, 187 P.3d 1207 (Colo. App. 2008).

The definition of political committee in § 2(12) of article XXVIII of the state constitution would be unconstitutional as applied if it did not incorporate the major purpose test. There are two ways to determine an organization's major purpose: (1) examining its central organizational purpose; and (2) comparing the organization's independent spending with overall spending to determine whether the preponderance of expenditures is for express advocacy or contributions to candidates. Campaign Integrity v. Colo. Citizens, 2018 COA 16, 415 P.3d 874.

The statutory major purpose test borrowed from the definition of issue committee in subsection (12)(b) should not be applied to assessing whether an organization is a political committee. Campaign Integrity v. Colo. Citizens, 2018 COA 16, 415 P.3d 874.

Organization was not a political committee because its major purpose, its one central purpose, was not supporting candidates. Records of the organization in a consecutive twelve-month period showed that only a little over one-third of the organization's spending was on political advocacy for candidates. Campaign Integrity v. Colo. Citizens, 2018 COA 16, 415 P.3d 874.

A judicial officer seeking retention is a candidate for purposes of the definition of "candidate" in subsection (2). Further, a judicial retention vote is an election for purposes of the definition of "political committee" in subsection (14). Colo. Ethics Watch v. Clear the Bench, 2012 COA 42, 277 P.3d 931.

An organization that supports or opposes the retention of a judicial officer is a political committee because it supports or opposes the election of a candidate and because it is recognized as such by § 1-45-109 (1)(a)(I). Organization accepted contributions and made expenditures of over $200 to oppose the retention of three justices of the Colorado supreme court. It is, therefore, a political committee. Organization cannot be both a political committee and issue committee because the two are defined under subsections (10) and (12) of art. XXVIII of the state constitution to be mutually exclusive. Colo. Ethics Watch v. Clear the Bench, 2012 COA 42, 277 P.3d 931.

The language in § 25 of art. VI of the state constitution stating that "a question shall be placed on the . . . ballot" does not render judicial retention a "ballot question" for purposes of this article. A judicial retention vote is not a "ballot question" because it does not involve a citizen petition or referred measure. Because a judicial retention vote does not meet the definition of a "ballot issue" or "ballot question" contained in subsections (1.3) and (1.5), organization opposing retention of three justices is not an issue committee under subsection (12)(a). Colo. Ethics Watch v. Clear the Bench, 2012 COA 42, 277 P.3d 931.

Secretary of state's proposed rule, 8 Colo. Code Regs. 1505-6, § 1.12, intended to fill a gap in subsection (12)(b) of this section by defining "major purpose" in the definition of issue committee, is arbitrary and capricious. The rule imposed a requirement that, in order to determine whether an issue committee has a "major purpose" under the constitutional and statutory definitions, a demonstrated pattern of conduct is established where the organization's annual expenditures in support of or in opposition to ballot issues or ballot questions exceed 30% of the organization's total spending during the same period. The rule is arbitrary and capricious because the 30% threshold is unsupported by competent evidence in the record. Even if there was competent evidence in the record to support a 30% threshold, this threshold would not resolve the ambiguity as to how a "pattern of conduct" must be demonstrated. Thus, the rule's 30% threshold is manifestly contrary to subsection (12)(b)'s use of the phrase "pattern of conduct" in its definition of major purpose. Colo. Ethics Watch v. Gessler, 2013 COA 172M, 363 P.3d 727.

Secretary of state's proposed rule, 8 Colo. Code Regs. 1505-6, § 1.18.2, designed to fill a gap in the constitutional definition of "political committee" in subsection (14) of this section by explaining precisely how the judicially created "major purpose" test limits what groups qualify as political committees, is invalid because the constitutional definition is clear and unambiguous: Political committees are defined by their contributions or expenditures, not by an additional major purpose test. Because the provisions are clear, there is no gap for the secretary to fill, and he does not have the authority to add a "major purpose" requirement, even in an attempt to codify judicial precedent. Colo. Ethics Watch v. Gessler, 2013 COA 172M, 363 P.3d 727.

District court correctly invalidated secretary of state's proposed rules, 8 Colo. Code Regs. 1505-6, §§ 7.2 and 1.10, designed to fill a gap in subsection (14.5) of this section by narrowing the definition of the phrase "political organization" to conform to federal judicial precedent. The secretary's addition in § 7.2 of the rules of a requirement that a section 527 entity must have a major purpose of influencing state elections contradicts the clear and unambiguous language of subsection (14.5) of this section. This section does not look to the purpose of the entity but to the actual activities of the entity. The secretary's addition in § 1.10 of the rules of an "express advocacy" requirement also contradicts the clear and unambiguous language of this section. These rules thus contradict the clear and unambiguous language of this section by improperly eliminating the statutory distinction between a political organization and a political committee. Colo. Ethics Watch v. Gessler, 2013 COA 172M, 363 P.3d 727.

Subsection (6)(b), which concerns all contributions "for which the contributor receives compensation or consideration", applies to payments made to a state political party for vendor tables at the party's state convention. Interpreting subsection (6)(b) as applying only to payments made to candidate committees that have determined the value of the goods and services provided while excluding payments made to political parties would lead to an absurd result. It is illogical that the general assembly intended "contribution" to enable only candidate committees to determine the value of goods and services provided. Campaign Integrity v. Republican Comm., 2017 COA 126, 488 P.3d 284.

Under the plain language of subsection (6)(b), political parties are required to report only that portion of payments for services that exceeds the value of the services rendered. While the state constitution broadly defines a "contribution", the plain language of the statute addresses the determination of the contribution amount when the contributor receives something of value in the transaction. When a contributor pays a political party for a good or service, and the amount paid is greater than its value, only the amount paid in excess of the value is considered a contribution. The general assembly intended to differentiate between those payments for services that equal the value of those goods and services, which are not contributions, and those made in excess, which are. Campaign Integrity v. Republican Comm., 2017 COA 126, 488 P.3d 284.

Based on the plain meaning of subsection (6)(b) and applying it to political parties, ALJ erred in determining that payments made to state political party for vendor tables at party's state convention were reportable contributions that party did not properly report. The amount of a contribution includes only payments made in excess of the value received by the contributor. Campaign Integrity v. Republican Comm., 2017 COA 126, 488 P.3d 284.