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Colorado Ethics Watch case about political ads' "magic words" heads to state supreme court

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Colorado Ethics Watch is on a roll. Back in September, the organization successfully argued that Clear the Bench Colorado, which wanted to throw the bums off the Colorado Supreme Court, should have registered as a political committee subject to donation limits rather than an issues committee. And now, that same court has agreed to hear a CEW case with a similar goal -- although this one turns on so-called "magic words" in political ads. Which ones?

"Vote for" or "defeat," says CEW executive director Luis Toro. Organizations behind ads using these terms are instantly seen as political in the eyes of Colorado law, and are required to register as political committees for that reason, Toro maintains. But spots that avoid these words, or others like them, can claim the commercials are about issues, not specific candidates, thereby avoiding donation limits even if the ads obviously advocate an individual's victory or defeat.

CEW staffers believe the Senate Majority Fund and Colorado Leadership Fund took this tack during the 2008 campaign -- and in September of that year, the organization filed a campaign finance complaint against each for not registering as political committees. But in November, Administrative Law Judge Robert Spencer dismissed the complaint, and the Colorado Court of Appeals affirmed his decision this past March.

In the interim, the U.S. Supreme Court's ruling in Citizens United v. Federal Election Commission erased corporate funding limits for political broadcasts on First Amendment grounds. But far from killing Colorado Ethics Watch's hopes of bringing its "magic words" complaint before the Colorado Supreme Court, Toro believes the judgment may help convince jurists here that CEW is in the right.

How? Citizens United revolved around Hillary: The Movie, a poison-pen letter to Hillary Clinton. The makers of the film "argued that they never actually said 'vote for' or 'vote against' Hillary Clinton," Toro says. "But the Supreme Court rejected that. In their opinion, no one could watch the movie and not conclude it was telling people they shouldn't vote for her."

Toro would like this federal standard -- one that relies on the totality of the message instead of a few random phrases -- to be used in Colorado. Moreover, he doesn't feel the elimination of corporate campaign limits that emerged from Citizens United has biased the Colorado Supreme Court against CEW's take. "If that's what they thought, they probably wouldn't have granted our petition," he maintains.

The case is likely to come before the Colorado Supreme Court in the Spring of 2011. Look below to see the Grant of Certiorari that formalized the process, and click here to get much more information from CEW about the original complaint.

More from our Follow That Story archive: "Clear the Bench's Matt Arnold: Court win for CO Ethics Watch a victory for big $ over little guy."

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