2010 HOUSE JOINT RESOLUTION 10-1011 BY REPRESENTATIVE(S) Weissmann, Carroll T., May, Acree, Apuan, Baumgardner, Benefield, Court, Curry, Ferrandino, Fischer, Frangas, Gagliardi, Gardner B., Gerou, Hullinghorst, Kagan, Kefalas, Kerr A., Kerr J., King S., Labuda, Lambert, Levy, Liston, Massey, McCann, Middleton, Miklosi, Murray, Pace, Peniston, Pommer, Primavera, Priola, Rice, Ryden, Scanlan, Schafer S., Solano, Sonnenberg, Soper, Stephens, Summers, Todd, Tyler, Vaad, Vigil, Waller; also SENATOR(S) Morse, Shaffer B., Penry, Boyd, Carroll M., Heath, Hudak, Johnston, Newell, Steadman. CONCERNING THE CONCURRENCE OF THE GENERAL ASSEMBLY IN THE GOVERNOR'S REQUEST THAT THE COLORADO SUPREME COURT RENDER ITS OPINION ON QUESTIONS ARISING FROM CITIZENS UNITED V. FEDERAL ELECTION COMM'N, 558 U.S. ____ (2010). WHEREAS, On February 9, 2010, Bill Ritter, Jr., Governor of the state of Colorado, submitted interrogatories to the Colorado Supreme Court for its opinion upon important questions upon a solemn occasion pursuant to section 3 of article VI of the state constitution, hereafter referred to as "Governor's Interrogatories", which interrogatories are hereby incorporated by reference; and WHEREAS, The Governor's Interrogatories raise important questions of law concerning the impact of a recent United States Supreme Court decision, Citizens United v. Federal Election Comm'n, 558 U.S. ___ (No. 08-205, January 21, 2010), on certain provisions of article XXVIII of the state constitution addressing independent expenditures and electioneering communications; and WHEREAS, In 2002, the registered electors of the state approved a citizen initiative amending the state constitution to add provisions addressing campaign and political finance that are codified in article XXVIII of the state constitution; and WHEREAS, Among other things, section 3 (4) (a) of article XXVIII prohibits corporations or labor organizations from making expenditures expressly advocating the election or defeat of a candidate, which are categorized as independent expenditures; and WHEREAS, Section 6 (2) of article XXVIII prohibits corporate or labor organizations from providing funding for certain forms of public communication made within a certain period before an election that unambiguously refer to any candidate, which are categorized as electioneering communications; and WHEREAS, In Citizens United, the United States Supreme Court determined that provisions in federal election law prohibiting the use of moneys from the general treasuries of for-profit and nonprofit corporations for independent expenditures and electioneering communications violate the first amendment and stated, in particular, that "the Government may not suppress political speech on the basis of the speaker's corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.", Citizens United, Slip. op. at 50; and WHEREAS, The holding of the United States Supreme Court in Citizens United casts significant doubt on the continued legal validity under the first amendment to the United States constitution of the prohibitions contained in sections 3 (4) (a) and 6 (2) of article XXVIII of the state constitution against corporations and labor organizations making independent expenditures or financing electioneering communications; and WHEREAS, The unique circumstances create a solemn occasion warranting the exercise of the Colorado Supreme Court's power to render its opinion under section 3 of article VI of the state constitution; and WHEREAS, With precinct caucuses and county assemblies scheduled to begin in March 2010, the process for selecting candidates for the 2010 general election has already begun and, in the absence of further clarity and direction from the Colorado Supreme Court, the apparent inconsistency between certain provisions of article XXVIII of the state constitution and the first amendment of the United States constitution is likely to cause widespread confusion and uncertainty among statewide and local candidates across the state, their potential contributors, election officials, and the general public as to the legality of certain ordinary campaign activities under Colorado law governing campaign finance; and WHEREAS, In the absence of referring a question to the voters for their consideration at the 2010 general election in the nature of an amendment to article XXVIII of the state constitution, the outcome of which cannot be accurately predicted, the General Assembly is not capable of effectively resolving an apparent conflict between a state constitutional provision and a provision of the United States constitution. Because the prohibitions at issue are wholly contained within the state constitution, they lie outside the plenary power of the General Assembly to correct on a timely basis through the enactment of legislation; and WHEREAS, Given the inability of the General Assembly to effectively implement the holding of Citizens United, the Colorado Supreme Court's timely intervention through the exercise of its original jurisdiction is necessary to ensure that Colorado law on campaign finance remains consistent with the first amendment to the United States constitution; and WHEREAS, It is in the best interests of the people of the state that a final answer to these constitutional questions be secured at the earliest possible date thereby avoiding the alternative of protracted and expensive litigation commenced by private parties that is likely to be imminent in the absence of clear direction from the Colorado Supreme Court; and WHEREAS, The issues raised by Citizens United are strictly legal issues involving the interpretation and construction of the provisions of article XXVIII of the state constitution, and no factual issues are likely to arise in the context of a private suit that would enhance the Colorado Supreme Court's ability to adjudicate these issues; and WHEREAS, The General Assembly has elected to submit this Joint Resolution to demonstrate to the Colorado Supreme Court that both houses of the General Assembly concur in the importance of the issues specified in the Governor's Interrogatories and the urgency of the situation described therein; now, therefore, Be It Resolved by the House of Representatives of the Sixty-seventh General Assembly of the State of Colorado, the Senate concurring herein: That, in view of the premises, it is the judgment of the House of Representatives and the Senate that the questions specified in the Governor's Interrogatories are a matter of extreme importance and public interest; that it is essential that an immediate determination be secured; that a solemn occasion within the meaning and intent of section 3 of article VI of the state constitution has arisen; and the House of Representatives and the Senate accordingly request the Colorado Supreme Court to render its opinion upon the Governor's Interrogatories. Be It Further Resolved, That the Speaker of the House of Representatives, immediately upon passage of this Joint Resolution, shall transmit a certified copy thereof to the Clerk of the Colorado Supreme Court, and that the Committee on Legal Services be directed to furnish said Court with an adequate number of copies of this Joint Resolution. _________________________________________________________ Terrance D. Carroll Brandon C. Shaffer SPEAKER OF THE HOUSE PRESIDENT OF OF REPRESENTATIVES THE SENATE ____________________________ ____________________________ Marilyn Eddins Karen Goldman CHIEF CLERK OF THE HOUSE SECRETARY OF OF REPRESENTATIVES THE SENATE APPROVED________________________________________ _________________________________________ Bill Ritter, Jr. GOVERNOR OF THE STATE OF COLORADO