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                                                         ADVANCE SHEET HEADNOTE
                                                                        July 3, 2017

                                        2017 CO 81

No. 15SC502, Julie Keim v. Douglas County School District—Campaign Finance—
Fair Campaign Practices Act—Campaign Contributions

       The supreme court reviews the court of appeals’ conclusion that a school district

did not make a prohibited contribution in a school board election campaign under

section 1-45-117(1)(a), C.R.S. (2016), of Colorado’s Fair Campaign Practices Act and the

definition of “contribution” in     article XXVIII, section 2(5)(a)(IV) of the Colorado

Constitution. The supreme court holds that under section 2(5)(a)(IV), a “contribution”

requires that (1) something of value (2) be given to a candidate, directly or indirectly, (3)

for the purpose of promoting the candidate’s nomination, retention, recall, or election.

Here, the school district commissioned and paid for a report supportive of the district’s

reform agenda using public funds. However, because the school district did not give

something, directly or indirectly, to any candidate when it publicly disseminated an

email containing a link to the report, the supreme court concludes the school district did

not make a prohibited “contribution” under these Colorado campaign finance

provisions. The supreme court therefore affirms the judgment of the court of appeals.
                    The Supreme Court of the State of Colorado
                      2 East 14th Avenue • Denver, Colorado 80203


                                      2017 CO 81

                         Supreme Court Case No. 15SC502
                       Certiorari to the Colorado Court of Appeals
                         Court of Appeals Case No. 14CA268

                                       Petitioner:
                                       Julie Keim,
                                           v.
                                     Respondent:
                            Douglas County School District.

                                 Judgment Affirmed
                                         en banc
                                       July 3, 2017


Attorneys for Petitioner:
Fairfield and Woods, P.C.
Craig D. Joyce
Lee Katherine Goldstein
 Denver, Colorado

Attorneys for Respondent:
Brownstein Hyatt Farber Schreck, LLP
Jason R. Dunn
Joshua A. Weiss
  Denver, Colorado

Attorneys for Amicus Curiae Colorado Common Cause:
Ireland Stapleton Pryor & Pascoe, PC
Benjamin J. Larson
  Denver, Colorado

Attorney for Amicus Curiae Colorado Ethics Watch:
Luis Toro
 Denver, Colorado
Attorneys for Amicus Curiae Colorado Secretary of State:
Cynthia H. Coffman, Attorney General
Frederick R. Yarger, Solicitor General
Matthew D. Grove, Assistant Solicitor General
 Denver, Colorado




JUSTICE MÁRQUEZ delivered the Opinion of the Court.
JUSTICE GABRIEL does not participate.

                                         2
¶1    In 2013, Douglas County School District (the “District”) used public funds to

commission a white paper (the “Hess Report”) supportive of the District’s reform

agenda. The Hess Report referenced an upcoming school board election and briefly

profiled existing school board members, all of whom supported the reform agenda.

The District included a link to the Hess Report in an email distributed to 85,000 Douglas

County residents several weeks before the November 2013 school board election.

¶2    We are asked to decide whether the Hess Report was a prohibited campaign

“contribution” under section 1-45-117(1)(a)(I) of Colorado’s Fair Campaign Practices

Act (“FCPA” or the “Act”), sections 1-45-101 to –118, C.R.S. (2016), and article XXVIII,

section 2(5)(a)(IV) of the Colorado Constitution. The FCPA prohibits state government

entities and political subdivisions of the state from making any “contribution” in

“campaigns involving the nomination, retention, or election of any person to any public

office.” § 1-45-117(1)(a)(I), C.R.S. (2016). Under the state constitution, a “contribution”

includes, among other things, “[a]nything of value given, directly or indirectly, to a

candidate for the purpose of promoting the candidate’s nomination, retention, recall, or

election.” Colo. Const. art. XXVIII, § 2(5)(a)(IV). Because the District did not give the

Hess Report, directly or indirectly, to any school board candidate when it disseminated

the email containing a link to the report to Douglas County residents, we conclude the

District did not make a prohibited “contribution” in a campaign under these Colorado

campaign finance provisions. Accordingly, we affirm the judgment of the court of

appeals.



                                            3
                           I. Facts and Procedural History

¶3    Petitioner Julie Keim was a candidate for one of four open seats in the 2013

Douglas County school board election. Douglas County School District is a political

subdivision of the State subject to the FCPA. See Bagby v. Sch. Dist. No. 1, 528 P.2d

1299, 1302 (Colo. 1974). According to Keim, after the 2009 school board election, the

District began implementing a conservative “reform agenda,” which she characterized

as “[school] choice-focused” and supportive of charter schools.       The 2011 election

brought in three additional reform agenda board members; thereafter, the entire board

and the District’s superintendent unanimously supported the reform agenda.

¶4    In 2013, four school board seats were up for election. In February of that year,

the District contracted with the American Enterprise Institute (“AEI”) to prepare a

white paper about Douglas County’s school system. This white paper, authored by Dr.

Frederick M. Hess and Max Eden of AEI, ultimately became known as the Hess Report.

¶5    The agreement between the District and AEI stated that AEI would “research,

create, publish[,] and publicize” a twenty-five- to thirty-page white paper that would:

      a. Describe Douglas County, the school                system,    and    [the
         superintendent’s] background and experience.
      b. Describe some of the problems that Douglas County’s efforts are meant
         to address.
      c. Describe what Douglas County is doing in terms of curriculum,
         instruction, programs, systems in place, etc.
      d. Explain how this is new and different; describe some of the advantages
         of the model.
      e. Delineate some of the challenges Douglas County faces based on this
         model.
      f. Explain lessons learned from the model.

                                            4
The District agreed to pay AEI $30,000 for the report, $15,000 of which was ultimately

paid by the District, and $15,000 of which was paid by the Douglas County School

District Foundation, a non-profit organization.

¶6     AEI’s research assistant wrote to the District’s community relations officer in

advance of a research visit to Colorado, seeking guidance from the District regarding

the focus and direction of the report:

       Ideally we would love for you all to help us help you. We can touch base
       on this as the date draws closer, but we would prefer not to go out there
       with a blank slate. Rather, we would prefer it if you would tell us what
       you want us to focus on, what is most worthy of attention, what you’d like
       to see written about and what your general angle on it (and the paper) is.
       This is just something to flag to [the superintendent] so she can mull it
       over a bit. Perhaps all of the interviews are already lined up with a certain
       focus in mind, but if not we encourage you to tailor our time out there to
       directed interviews with folks that you want to make a particular point of
       in us meeting and writing about them.

¶7     The District thus worked with AEI as it conducted research, and made changes

to the draft report.

¶8     AEI finalized and published the twenty-two-page Hess Report in September

2013. Relevant here, the Report described the reform agenda as “perhaps the nation’s

boldest attempt at suburban school reform”; “unusually ambitious”; “remarkable in the

annals of contemporary school reform”; and “remarkable and illuminating.” The report

contained brief profiles of each of the existing board members. An approximately

three-page section called “Electing a Reform Board” described the history of the

existing board and noted that Douglas County provided a “compelling illustration of

how a unified board majority can fuel rapid, ambitious reform.” At the end of that
                                            5
section, the report noted rumored efforts to defeat the four incumbent board members

up for re-election:

         Four board members will stand for reelection in November 2013. As they
         prepare, there are murmurs that the [American Federation of Teachers]
         might spend substantial sums to defeat them. Several Colorado
         Democrats have made similar noises. The November results promise to
         say a great deal about where matters stand in [Douglas County], and may
         shed light on the position of teachers[‘] unions in conservative
         communities across America.

The report also discussed a number of other topics, including the District’s voucher

program, new assessment methods, changes to teacher pay, and efforts to use big data

tools.

¶9       On September 18, 2013, the District emailed its weekly e-newsletter to

approximately 85,000 Douglas County residents.            Among several articles, the

e-newsletter contained a headline that read “[Douglas County School District]: ‘The

most interesting school district in America.’” The text below the headline referred to

the Hess Report and read, in part, that the “paper focuses on Douglas County reforms

including choice and pay for performance.” The newsletter provided a link through

which readers could access and download the full Hess Report.

¶10      Shortly thereafter, Keim filed a campaign finance complaint against the District

with the Secretary of State under article XXVIII, section 9(2)(a) of the Colorado

Constitution. Keim alleged that the District “violated the [FCPA], C.R.S. § 1-45-101 et

seq., by using district resources to influence the outcome of the school board election.”

Keim stated that four school board candidates (including two incumbent board

members) were running as the “Reform Slate.” She alleged that “[d]uring the election

                                             6
process” the District disseminated the Hess Report and another white paper,1 both of

which were “political in nature” and “part of campaign literature supporting the

Reform Slate.” She further argued that “District resources were used in the research,

compilation, preparation, and dissemination” of the Hess Report, which was

“supportive of the platform advocated by the Reform Slate, and being used to influence

the outcome of the election.”

¶11   In its answer, the District admitted that District resources were used to fund the

Hess Report, but denied that the report was political in nature and denied that it had

used District resources to influence the outcome of the board election. The District

stated it had no knowledge of how the report was used by any board candidates, and it

denied Keim’s allegation that the District made the report available to the public “for

the purpose of assisting specific candidates.”

¶12   At a two-day hearing before the Administrative Law Judge (“ALJ”) in December

2013, Keim clarified that her claim was based on section 1-45-117(1)(a)(I), which

prohibits political subdivisions of the state from making any “contribution” in a

campaign “involving the nomination, retention, or election of any person to any public

office.” Keim noted that the state constitutional definition of “contribution” includes

“[a]nything of value given directly, or indirectly, to a candidate for the purpose of

promoting the candidate’s nomination, retention, recall, or election.” See Colo. Const.

art. XXVIII, § 2(5)(a)(IV). She argued that the Hess Report was a prohibited “indirect

1Keim’s complaint also challenged another white paper discussing school reform in
Douglas County called the Bennett Report. That report is not at issue in this appeal.


                                            7
contribution” because it provided an “indirect benefit to all of the Reform Slate

Candidates.”

¶13     In a written order, the ALJ concluded that the District violated the FCPA by

contracting for and disseminating the Hess Report. The ALJ found that “AEI was hired

to write a report of which the District would approve, and not an independent review,”

that the “Hess Report was commissioned and published as a means to support . . . the

reform agenda and any candidates who would further that agenda,” and that “the

District spent public funds to influence the outcome of the Board election when it

commissioned and paid $15,000 for the Hess Report.” The ALJ concluded that the

report was an “endorsement of the reform agenda,” and that each of the reform slate

candidates “received a contribution when the District released a link to the Hess Report

to 85,000 people, many of whom would be voters in the November 2013 Board

election.” Thus, the ALJ concluded, the District violated the FCPA when it sent the

Hess Report, for which it had paid $15,000 in District funds, via email on September 18,

2013.

¶14     The District appealed, and the court of appeals reversed in a divided opinion.

Keim v. Douglas Cty. Sch. Dist., 2015 COA 61, ¶ 1, ___ P.3d ___, ___. The panel

majority focused on the meaning of the phrase “given, directly or indirectly, to a

candidate” in the constitutional definition of “contribution.” Id. at ¶¶ 33–35 (citing

Colo. Const. art. XXVIII, § 2(5)(a)(IV)). The majority reasoned that, applying the plain

meaning of the words used in the definition, “indirectly giving something of value to a

candidate must, at a minimum, involve providing something of value to someone other

                                           8
than the candidate himself or herself but with the intention that the candidate will

eventually receive or make use of that thing of value.” Id. at ¶ 38. The court concluded

that the definition of “contribution” in article XXVIII, section 2(5)(a)(IV) thus requires

that “(1) a thing of value (2) be put into the possession of or provided to a candidate or

someone acting on the candidate’s behalf (3) with the intention that the candidate

receive or make use of the thing of value provided (4) in order to promote the

candidate’s election,” but that the candidate need not personally receive and accept the

thing of value. Id. at ¶ 39.

¶15    Applying this definition, the panel majority held that the evidence did not

establish that “the District put the Hess Report into the possession of, or otherwise

provided it to, any candidate or someone acting on behalf of a candidate.” Id. at ¶ 40.

The majority concluded that the ALJ applied an incorrect legal standard in reaching its

conclusion that the District violated the FCPA. Id. at ¶ 41. The court reasoned that any

incidental benefit to a pro-reform candidate as a result of the Hess Report’s distribution

would not be sufficient to establish that the District made a “contribution” under the

applicable definition. Id. The court thus concluded that the record did not support the

ALJ’s finding that in contracting for and disseminating the Hess Report, the District

made a “contribution” in a campaign involving the election of a person to public office,

in violation of the FCPA. Id. at ¶ 44.

¶16    In his dissent, Judge Taubman disagreed with the majority’s conclusion that

something of value must be placed in the possession of a third party for an indirect

contribution to occur. Id. at ¶ 66 (Taubman, J., dissenting). Nothing in the definition of

                                            9
“contribution,” Judge Taubman noted, requires the presence of an intermediary or

conduit.       Id. at ¶ 69.   Further, Judge Taubman disagreed with the majority’s

interpretation of the definition “to the extent that it requires that something of value

must be given to someone acting on the candidate’s behalf,” because that requirement

does not appear in the definition. Id. at ¶ 72. Finally, he reasoned that, even applying

the majority’s framework, the “District violated the FCPA once it paid AEI $15,000 in

public funds for a report promoting the candidacies of pro-reform agenda candidates.”

Id. at ¶ 78.

¶17      Keim filed a petition for a writ of certiorari, contending that the court of appeals

incorrectly interpreted the definition of “contribution” and incorrectly concluded that

the evidence did not support the ALJ’s findings and conclusions. We granted certiorari

review2 and now affirm the judgment of the court of appeals.




2   We granted certiorari review of the following issues:
      1. Whether an “indirect campaign contribution,” as prohibited by Colorado’s
         Fair Campaign Practices Act, requires that something of value be placed in
         the possession of a third party for the benefit of a candidate.
      2. Whether the court of appeals’ decision in this case conflicts with the court
         of appeals’ decision in the case of Colorado Ethics Watch v. City and
         County of Broomfield, 203 P.3d 623, 626 (Colo. App. 2009), which held
         that the court must accept an Administrative Law Judge’s (ALJ) factual
         findings as to whether the district intended to give the contribution “for
         the purpose of promoting a candidate’s election,” unless the findings are
         clearly erroneous or unsupported by evidence in the record.
      3. Whether the court of appeals erred in concluding that the record did not
         support the ALJ’s determination that the District violated fair campaign
         practice laws by contracting for and disseminating the Hess Report.


                                              10
                                II. Standard of Review

¶18    The interpretation of a constitutional provision is a question of law this court

reviews de novo. People v. Boyd, 2017 CO 2, ¶ 3, 387 P.3d 755, 756–57.             When

construing a constitutional provision, this court must give effect to the intent of the

electorate that adopted it. Colo. Ethics Watch v. Senate Majority Fund, LLC, 2012 CO

12, ¶ 20, 269 P.3d 1248, 1253. To do so, this court gives words “their ordinary and

popular meaning.” Id., 269 P.3d at 1253-54 (quoting Davidson v. Sandstrom, 83 P.3d

648, 654 (Colo. 2004)). If the language of a provision is clear and unambiguous, it must

be enforced as written. Id., 269 P.3d at 1254.

¶19    Judicial review of agency action is governed by section 24-4-106(7), C.R.S. (2016).

Under that standard, a reviewing court will set aside agency action where it is arbitrary

and capricious, unsupported by substantial evidence when the record is considered as a

whole, or contrary to law. Id. “[I]t is for this court to determine all questions of law,

interpret applicable statutes, and apply such interpretations to the facts.” Coffman v.

Colo. Common Cause, 102 P.3d 999, 1005 (Colo. 2004).

                                      III. Analysis

¶20    Keim alleges that the District made a prohibited campaign contribution under

section 1-45-117(1)(a)(I) of the FCPA.     Because the FCPA adopts the definition of

“contribution” used in article XXVIII, section 2(5) of the Colorado Constitution, see

§ 1-45-103(6)(a), C.R.S. (2016), this case turns on that constitutional definition,

specifically, the definition of “contribution” in article XXVIII, section 2(5)(a)(IV). We

conclude that, under section 2(5)(a)(IV), a “contribution” requires that (1) something of

                                            11
value (2) be given to a candidate, directly or indirectly, (3) for the purpose of promoting

the candidate’s nomination, retention, recall, or election. Because the District did not

give the Hess Report to any candidates when it included a link to the report in an email

broadly disseminated to Douglas County residents, we hold that the ALJ erred in

determining that the District made a prohibited “contribution” in violation of section 1-

45-117(1)(a)(I) of the FCPA.

¶21    We begin our analysis by reviewing the relevant legal context in which the term

“contribution” emerges. We then examine that term before evaluating whether the

Hess Report was a prohibited contribution under section 1-45-117(1)(a)(I) of the FCPA.

                 A. The Fair Campaign Practices Act and the Colorado
                                   Constitution

¶22    Colorado’s Fair Campaign Practices Act (“FCPA” or the “Act”), sections 1-45-101

to –118, C.R.S. (2016), was first enacted by the legislature in 1974 as the “Campaign

Reform Act.” See Colo. Common Cause, 102 P.3d at 1006; 1974 Colo. Sess. Laws 261–

271. The Act was repealed and reenacted by voter initiative in 1996 and has been

amended several times since its original adoption, but its core purpose has remained

the same.    See Colo. Common Cause, 102 P.3d at 1007.           According to the Act’s

legislative declaration, the interests of the public are best served by limiting campaign

contributions, establishing campaign spending limits, requiring disclosure of campaign

contributions, and providing for strong enforcement of the campaign laws. § 1-45-102,

C.R.S. (2016).




                                            12
¶23    The Act regulates campaign contributions by individual contributors and special

interest groups. Colo. Common Cause, 102 P.3d at 1007. Relevant here, the FCPA

“regulates expenditure of public monies by state agencies, departments, officials, and

employees to prevent the state machinery from thwarting the electoral process.” Id. In

particular, section 1-45-117 of the FCPA prohibits political subdivisions of the state from

making contributions in campaigns; from donating to other persons to make

independent expenditures; and from expending money or making contributions to urge

electors to vote for or against any ballot issue, referred measure, or recall measure:

       No agency, department, board, division, bureau, commission, or council
       of the state or any political subdivision of the state shall make any
       contribution in campaigns involving the nomination, retention, or election
       of any person to any public office, nor shall any such entity make any
       donation to any other person for the purpose of making an independent
       expenditure, nor shall any such entity expend any moneys from any
       source, or make any contributions, to urge electors to vote in favor of or
       against any [ballot issue, referred measure, or recall measure].

§ 1-45-117(1)(a)(I), C.R.S. (2016). As originally enacted, the “expressed purpose” of the

provision now codified in section 117 was to “prevent state or political subdivisions

from devoting public resources toward persuading voters during an election.” Colo.

Common Cause, 102 P.3d at 1006 (citing Hearing on S. B. 28, S. State Affairs Comm.,

49th Gen. Assemb., 2nd Regular Sess. (1974)). Although it has been codified in different

locations and formats, a statutory prohibition on contributions to campaigns by state

and political subdivisions has existed in Colorado campaign finance law since 1974.

See, e.g., § 1-45-116, C.R.S. (1973); § 1-45-116(1)(a)(I), C.R.S. (1996 Supp.).




                                               13
¶24    Keim alleges that the District made a prohibited “contribution” to candidates for

the 2013 Douglas County school board election in violation of section 1-45-117(1)(a)(I)

(“No . . . political subdivision of the state shall make any contribution in campaigns

involving the nomination, retention, or election of any person to any public office . . . .”

(emphasis added)).     The Colorado Constitution defines “contribution” to include,

among other things, “[a]nything of value given, directly or indirectly, to a candidate for

the purpose of promoting the candidate’s nomination, retention, recall, or election.”

Colo. Const. art. XXVIII, § 2(5)(a)(IV).3 In turn, the FCPA provides that “contribution”

shall have the same meaning as set forth in the Colorado Constitution. § 1-45-103(6)(a).4



3 Under section (2)(5)(a), a “contribution” can also include money and gifts or loans
given to a political party or candidate committee, issue committee, political committee,
or small donor committee, as well as payments made to third parties for the benefit of a
political party or such committees:
       (I) The payment, loan, pledge, gift, or advance of money, or guarantee of a
       loan, made to any candidate committee, issue committee, political
       committee, small donor committee, or political party;
       (II) Any payment made to a third party for the benefit of any candidate
       committee, issue committee, political committee, small donor committee,
       or political party;
       (III) The fair market value of any gift or loan of property made to any
       candidate committee, issue committee, political committee, small donor
       committee or political party.
Colo. Const. art. XXVIII, § 2(5)(a)(I)–(III). Keim does not contend that the District
made a contribution under these definitions.
4 The FCPA further defines “contribution” to include the value in excess of the
compensation or consideration received by a contributor for donations of goods or
services to a candidate committee, and also defines “contributions” made to “political
organizations,” a term that does not appear in the state constitutional campaign finance
provisions:


                                            14
          B. The Meaning of “Contribution” under Section (2)(5)(a)(IV)

¶25    Consistent with our task of giving words their ordinary and popular meaning

and enforcing the language of a clear and unambiguous provision as written, we

conclude that a “contribution” under section (2)(5)(a)(IV) 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.      See Colo. Const. art. XXVIII,

§ 2(5)(a)(IV).

¶26    The definition of “contribution” in section (2)(5)(a)(IV) is both broader and

narrower than the other definitions in the Colorado Constitution and FCPA. It is

broader in the sense that it refers to “anything of value” and thus is not limited to the

list of items set forth in the other definitions.      For example, other definitions of

“contribution” in the constitution and the FCPA refer specifically to payments, loans,

pledges, gifts, advances of money, guarantees of a loan, or the fair market value of any

       (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.
§ 1-45-103(6)(b)–(c). These additional definitions are not at issue in this case.


                                             15
gift or loan of property, and pertain to such contributions made to candidate

committees, issue committees, political committees, small donor committees, political

parties, or political organizations; these include payments made to third parties for the

benefit of such committees, political parties, or political organizations. See Colo. Const.

art. XXVIII, § 2(5)(a)(I)–(III); § 1-45-103(6)(b)–(c).   It is also narrower than the other

definitions because it applies only to contributions made to an individual candidate,

and unlike the other definitions, subparagraph IV includes a purpose requirement (i.e.,

“to a candidate, for the purpose of promoting the candidate’s nomination, retention,

recall, or election”). See Colo. Const. art. XXVIII, § 2(5)(a)(IV).

¶27    In this case, we are focused on the meaning of the phrase “given, directly or

indirectly, to a candidate” in section (2)(5)(a)(IV).      Under any natural reading, the

phrase “given . . . to a candidate” means the contributor must intend the candidate to

receive the thing of value given by the contributor. As the court of appeals noted,

“give” means “to put into the possession of another for his use.” Keim, ¶ 34 (citing

Give, Webster’s Third New International Dictionary (unabr. ed. 2002)). And in the

phrase “given . . . to,” the word “to” is “a function word to indicate the receiver of an

action or the one for which something is done or exists.” Id. (citing To, Webster’s Third

New International Dictionary (unabr. ed. 2002)).

¶28    Next, the adverb phrase “directly or indirectly” modifies the contributor’s act of

giving to the candidate. Thus, a “contribution” under section (2)(5)(a)(IV) requires that

a contributor give something of value “to a candidate,” but acknowledges that the

contributor’s act of giving may occur either “directly or indirectly.” (Emphasis added.)
                                              16
In other words, the candidate may receive the thing of value “directly” from the

contributor; alternatively, the candidate may receive the thing of value from the

contributor “indirectly” through one or more intermediaries. In either case, however,

the candidate must ultimately receive the thing of value given by the contributor.

¶29     Although a thing of value “put into the possession of or provided to . . . someone

acting on the candidate’s behalf” can qualify as a “contribution” under subparagraph

IV, see Keim, ¶ 39, we disagree with the court of appeals that the definition limits

indirect contributions under that provision to things of value given to persons “acting

on the candidate’s behalf,” as those words do not appear in subparagraph IV. In any

event, a contribution made to someone “acting on the candidate’s behalf” often will fall

under a different definition of contribution. As noted above, the Colorado Constitution

defines “contribution” to include the “payment, loan, pledge, gift, or advance of money,

or guarantee of a loan, made to any candidate committee”; a “payment made to a third

party for the benefit of any candidate committee”; and the “fair market value of any gift

or loan of property made to any candidate committee.” Colo. Const. art. XXVIII,

§ 2(5)(a)(I)–(III).   In turn, a “candidate committee” includes “a person . . . or persons

with the common purpose of receiving contributions . . . under the authority of a

candidate.” Colo. Const. art. XXVIII, § 2(3).5 Thus, a person who is “acting on the


5The Colorado Constitution defines “candidate committee” as “a person, including the
candidate, or persons with the common purpose of receiving contributions or making
expenditures under the authority of a candidate. A contribution to a candidate shall be
deemed a contribution to the candidate’s candidate committee.” Colo. Const. art.
XXVIII, § 2(3).


                                             17
candidate’s behalf” presumably acts “under the authority of a candidate” to receive

contributions, and therefore is part of the candidate’s candidate committee.

Accordingly, a contribution given to such an individual often will qualify as a

contribution under a different provision of the Colorado Constitution. See Colo. Const.

art. XXVIII, § 2(5)(a)(I)–(III).

                                     C. Application

¶30    As explained above, a “contribution” under section (2)(5)(a)(IV) 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. See Colo. Const.

art. XXVIII, § 2(5)(a)(IV). In this case, we conclude that the District did not make a

prohibited “contribution” to a campaign under section (2)(5)(a)(IV) and section

1-45-117(1)(a)(I) because the District did not give the Hess Report, directly or indirectly,

to any school board candidate when it disseminated the email containing a link to the

report to Douglas County residents. Because we conclude that the Hess Report was not

“given directly or indirectly, to [any] candidate,” we need not address whether the Hess

Report was given “for the purpose of promoting [any] candidate’s . . . election.”

¶31    We assume that the Hess Report qualifies as a “thing of value” for purposes of

the definition of “contribution” in section (2)(5)(a)(IV). Here, the ALJ concluded that

each of the reform slate candidates “received a contribution” when the District emailed

a link to the Hess Report in its weekly e-newsletter distributed to the 85,000 Douglas

County residents on the District’s mailing list. However, the facts here do not establish

that the District gave the Hess Report to the candidates as required by the applicable

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definition of “contribution.” We reject the notion that something of value can be “given

to” a candidate when it is publicly distributed, even if the candidates happen to be

among the public to which the thing of value has been made available.

¶32    To the extent Keim argues that the Hess Report qualified as a “contribution”

under section (2)(5)(a)(IV) because it provided an “indirect benefit” to the reform slate

candidates, we reject that contention. As explained above, the adverb phrase “directly

or indirectly” in subparagraph IV modifies the contributor’s act of giving a thing of

value to the candidate, and acknowledges that a candidate may receive a thing of value

“directly” from the contributor or “indirectly” through an intermediary. But the phrase

“directly or indirectly” does not modify “anything of value.” In short, the definition of

“contribution” in subparagraph IV cannot be construed so broadly to encompass

anything of value that might “indirectly benefit” a candidate’s nomination, retention,

recall, or election.

¶33    Similarly, Keim contends that the Hess Report was “given to” the reform

candidates because they were the recipients of the “benefits” of the report in the general

sense. In other words, Keim argues, the Hess Report amounted to an endorsement of

the reform agenda and explained the advantage of having a unified board to implement

that agenda; the reform candidates received the benefit of that endorsement when the

District distributed the report to Douglas County residents. Keim reasons that the

purpose of the prohibition in section 1-45-117(1)(a)(I) is to prevent political subdivisions

of the state from using public funds to influence the outcome of an election. She argues

that the District violated section 1-45-117(1)(a)(I) in this case because a “government

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actor” used “government funds” for the purpose of promoting particular candidates in

an upcoming election.     However, this argument falls short because it ignores the

requirement in subparagraph IV that something of value be “given to . . . [the]

candidate” to qualify as a “contribution.” Despite Keim’s accurate characterization of

the purpose of section 1-45-117(1)(a)(I), we cannot ignore the plain language of the

applicable definition of “contribution,” which requires that the thing of value be “given,

directly or indirectly, to a candidate.” Colo. Const. art. XXVIII, § 2(5)(IV) (emphases

added).

¶34    In sum, we hold that the District did not make a prohibited “contribution” to a

campaign under section 2(5)(a)(IV) in violation of section 1-45-117(1)(a)(I) of the FCPA

because the District did not give the Hess Report, directly or indirectly, to any school

board candidate when it broadly disseminated the email containing a link to the report

to Douglas County residents. Because we conclude that the Hess Report was not a

“contribution” under subparagraph IV because it was not “given, directly or indirectly,

to [any] candidate,” we need not address whether the Hess Report was created and

distributed “for the purpose of promoting [any] candidate’s . . . election.”6 Accordingly,

we hold that the ALJ erred in concluding that the District violated section 1-45-

117(1)(a)(I) by contracting for and disseminating the report to Douglas County

residents.


6 Likewise, we need not reach whether the court of appeals’ decision in this case
conflicts with the court of appeals’ decision in Colorado Ethics Watch v. City and
County of Broomfield, 203 P.3d 623 (Colo. App. 2009).


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                                    IV. Conclusion

¶35   We hold that the definition of “contribution” at issue here 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 election. See Colo. Const. art. XXVIII, § 2(5)(a)(IV). Here, the

District did not give anything of value to the reform slate candidates when it publicly

distributed the Hess Report to residents in Douglas County. We therefore affirm the

judgment of the court of appeals.


JUSTICE GABRIEL does not participate.




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