Colorado’s second-highest court on Thursday concluded the state’s requirement that ballot issue advocacy groups disclose the name of their legal representative on their election communications violates the First Amendment.

By 2-1, a three-judge panel of the Court of Appeals believed there was no material benefit to the public from knowing who the registered agents are for groups that advocate for or against ballot measures. Judge Jerry N. Jones, writing for the majority, noted Colorado is the only state with such a requirement in its campaign finance laws.

“The registered agent doesn’t have to be an organizer, officer, or employee of the issue committee,” he wrote in the Aug. 1 opinion. The state’s arguments “don’t even try to explain how knowing the name of the registered agent — as opposed to some other person with a closer connection to the issue committee — will actually assist voters.”

Judge Timothy J. Schutz responded with a lengthy dissent, arguing the public is “substantially benefitted by the disclosure of a human being,” rather than the opaque or cryptic name of an advocacy group.

“Moreover, we can all think of local and national political leaders, social media influencers, pundits, commentators, celebrities, activists, or ordinary citizens whose disclosure as the registered agent of an issue committee would tell voters something of meaning about the associated advertisement,” he wrote.

In the underlying case, No on EE — A Bad Deal for Colorado was an issue committee that opposed Proposition EE in 2020. Voters overwhelmingly approved the measure, which created a nicotine tax and established a minimum price for packs of cigarettes. No on EE was primarily funded by tobacco company Liggett Group.

Initially, No on EE spent more than $3 million on communications opposing Prop EE without listing its registered agent, who is the person designated to receive mailings and file campaign finance reports. After a voter filed a campaign finance complaint, No on EE immediately revised its advertisements to correct the omission.

Eventually, an administrative law judge imposed a $10,000 fine, which the deputy secretary of state increased to $30,000. No on EE sought judicial review, arguing the fine was excessive and the disclosure requirement violated the First Amendment.

Denver District Court Judge Marie Avery Moses disagreed with that argument, believing the disclosure of a registered agent in election ads helps “put a face to the name.”

“Identifying an individual that is associated with the issue committee provides useful information to voters that helps voters to identify actual individuals that are associated with the issue committee,” she wrote, “and naming an individual reduces the appearance of corruption associated with a face-less entity.”

No on EE turned to the Court of Appeals, maintaining that Colorado’s unique requirement provided no useful information to voters. The Colorado Attorney General’s Office countered that the legislature sought to prevent advocacy groups from concealing information about themselves “behind misleading or even deceptive committee names.”

The appellate panel noted No on EE was not advocating for complete secrecy for registered agents, as the law also requires issue committees to disclose registered agents’ names when filing with the secretary of state. But analyzing whether Colorado law unconstitutionally compels advocacy groups to speak by requiring an additional disclosure in their advertising, the majority concluded it does.

“The defendants don’t even assert that knowing this registered agent’s name told the voters anything useful,” wrote Jones for himself and Judge Robert D. Hawthorne. “And the dissent doesn’t cite any authority for the novel proposition that because the state can legitimately compel disclosure in one context it can necessarily compel disclosure in a different context.”

Schutz responded that he did not even believe No on EE had properly pursued its constitutional challenge in the first place. But on the merits, he argued the name “No on EE — A Bad Deal for Colorado” was a prime example of why attaching a human’s name was important.

“The purpose of using this type of entity name is to send a political message that the subject ballot issue is bad, the proponent is virtuous, and the proponent speaks for many people. Disclosure requirements act as a check against the viewer’s impulsive reaction,” he wrote.

Schutz added the disclosure requirement was not burdensome, given that No on EE was able to modify its materials within 36 hours to comply with the law.

Secretary of State Jena Griswold said in a statement that Coloradans “deserve to know who is trying to sway their vote,” and she hoped to see the decision overturned. No on EE’s attorney did not immediately respond to a request for comment. 

Shad Murib, the chair of the Colorado Democratic Party, agreed with the message of Schutz’s dissent.

“More information for the public should be our North Star in our politics. The public deserves transparency in elections, and this decision muddies the water to benefit big special interests on both sides of the aisle,” he said. “There is simply too much undisclosed money in politics, and I look forward to continuing to work with lawmakers and advocates on ways to improve transparency for Coloradans.”

Leaders of the state Republican Party did not immediately respond to questions about the decision.

The case is No on EE v. Beall et al.