COLORADO COURT OF APPEALS                                          2017COA126

Court of Appeals No. 16CA1648
Office of Administrative Courts Case No. OS 2016-0009


Campaign Integrity Watchdog,

Petitioner-Appellee,

v.

Colorado Republican Committee,

Respondent-Appellant.


                                 ORDER REVERSED

                                      Division I
                            Opinion by JUDGE TAUBMAN
                       Lichtenstein and Carparelli*, JJ., concur

                             Announced October 5, 2017


Matthew Arnold, Authorized Representative of Campaign Integrity Watchdog

Brownstein Hyatt Farber Schreck, LLP, Christopher O. Murray, Denver,
Colorado, for Respondent-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1    In this campaign finance case, the Colorado Republican

 Committee (CRC) appeals part of a final agency decision which

 determined that it improperly failed to report three payments for

 vendor tables at its 2016 Republican Party assembly and

 convention.1 Because we conclude that these payments were not

 political contributions, we reverse that part of the order imposing a

 fine and sanctions against CRC for failing to report the payments.

 We do not review, and thus issue no opinion on, that part of the

 agency decision CRC does not appeal.

                               I. Background

¶2    In April 2016, CRC held its convention to nominate candidates

 for state and federal offices and to elect at-large delegates and

 alternates to the 2016 Republican National Convention. In

 connection with the convention, CRC sold vendor tables for a

 minimum of $350 each.2 Although the record is not clear, these

 vendor tables apparently were used by individuals and


 1 For ease of reference, we will refer to this simply as “the
 convention.”
 2 Evidence was presented at the hearing indicating that the tables

 could cost more than $350, depending on the size of the table and if
 the payor was an affiliated organization like a county division of the
 Republican Party, or if the payor was an outside group.

                                    1
 organizations to promote campaigns, advertise, and share

 information. Those who purchased tables could decorate the tables

 and provide literature to convention delegates and visitors. The

 record also indicates that CRC sold some tables to commercial

 vendors.

¶3    Three payments to CRC for these tables are at issue. The first

 table was purchased by Jess Loban, a Republican candidate for the

 state senate. CRC deposited his payment of $350 into its federal

 operations account and reported it in its disclosures to the Federal

 Election Commission (FEC). The second and third tables were

 purchased by the Party of Choice, LLC. The record does not provide

 any more information about the LLC. CRC deposited the Party of

 Choice’s two payments totaling $700 into its state operations

 account and disclosed them on its state report of contributions and

 expenditures.

¶4    In May 2016, Campaign Integrity Watchdog (CIW), through

 Matt Arnold, its authorized representative3, filed a complaint with



 3 Although Matt Arnold is not an attorney, he may represent CIW in
 this case because he has established that he has met the
 requirements of section 13-1-127(2), C.R.S. 2017. See Campaign

                                   2
 the secretary of state. As relevant to this appeal, CIW argued that

 CRC failed to report in its state report of contributions and

 expenditures the payment from Loban as a contribution. It also

 argued that, with respect to the payments from the Party of Choice,

 CRC failed to follow all of the reporting requirements for a

 contribution from an LLC, including failure to file what is known as

 an LLC “affirmation” pursuant to section 1-45-103.7, C.R.S. 2017.4

¶5    An administrative law judge (ALJ) held a hearing on these and

 other issues in August 2016. During the hearing, CRC argued that

 the three payments were not reportable contributions under the

 Fair Campaign Practices Act (FCPA), sections 1-45-101 to -118,

 C.R.S. 2017. In his final order, the ALJ ruled that (1) the three

 payments by Loban and the Party of Choice were all reportable

 contributions under state law; (2) CRC did not properly disclose

 these contributions; (3) CRC must pay a $4600 fine for failure to




 Integrity Watchdog v. Coloradans for a Better Future, 2016 COA 51,
 ¶ 2 n.1, ___ P.3d ___, ___ n.1 (cert. granted Sept. 12, 2016).
 4 When a political party receives a reportable state contribution

 from an LLC, the LLC must prepare an affirmation containing the
 names of the LLC members and apportionment of the contribution,
 and the party must file the affirmation when it reports the
 contribution. See § 1-45-103.7(5)(d), C.R.S. 2017.

                                   3
 disclose these contributions; and (4) CRC must file amended reports

 of contributions and expenditures and return those contributions.

 Consequently, he assessed a fine and a sanction in the alternative

 against CRC and ordered that CRC amend its reports of

 contributions and return the contributions.

          II. Interpretation of Section 1-45-103(6)(b) of the FCPA

¶6    CRC contends that the ALJ erred in determining that the three

 payments for vendor tables at the convention were reportable

 contributions under state law and not properly reported by CRC.

 We agree.

¶7    At the hearing, Shana Kohn Banberger, the Executive Director

 of CRC, testified that vendors purchase tables at the convention to

 present a display to roughly 4000 delegates and around 2000 to

 3000 alternates — an attendance of roughly 6000 to 7000 people.

 Banberger also stated that vendor tables typically sell out.

¶8    Banberger further attested that CRC did not report these

 payments for the vendor tables as contributions because the

 payments were “a fee for a service. . . . It was a fee for the vendor

 tables, as they stated on their check.”




                                    4
                           A. Standard of Review

¶9     As a matter of statutory interpretation, we review de novo

  whether payments to a political party are contributions under the

  Colorado Constitution and state law. Campaign Integrity Watchdog

  v. Coloradans for a Better Future, 2016 COA 51, ¶ 16, ___ P.3d ___,

  ___ (cert. granted Sept. 12, 2016). We also review de novo an

  administrative agency’s conclusions of law. Id.

                              B. Applicable Law

¶ 10   As pertinent here, section 1-45-108(1)(a)(I), C.R.S. 2017,

  requires political committees to report contributions of twenty

  dollars or more that they receive. It also requires them to report

  expenditures and obligations.

¶ 11   Under the definitions section of the FCPA, “contribution” has

  “the same meaning as set forth in section 2(5) of article XXVIII of

  the state constitution.” § 1-45-103(6)(a), C.R.S. 2017. The

  Colorado Constitution defines “contribution” broadly as “[t]he

  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.” Colo. Const.




                                    5
  art. XXVIII, § 2(5)(a)(I). However, section 1-45-103(6)(b) adds the

  following:

               “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.

  § 1-45-103(6)(b).

¶ 12   When interpreting a statute or a constitutional amendment,

  we must first determine whether it has a plain and unambiguous

  meaning. Campaign Integrity Watchdog, ¶ 17, ___ P.3d at ___. “The

  plainness or ambiguity of statutory language is determined by

  reference to the language itself, the specific context in which that

  language is used, and the broader context of the statute as a

  whole.” Id. at ¶ 18, ___ P.3d at ___ (quoting Robinson v. Shell Oil

  Co., 519 U.S. 337, 340 (1997)). We read the statutory scheme as a

  whole to give “consistent, harmonious, and sensible effect to all

  parts of the statute.” Id. (quoting Salazar v. Indus. Claim Appeals

  Office, 10 P.3d 666, 667 (Colo. App. 2000)); see also People v. Dist.


                                      6
  Court, 713 P.2d 918, 921 (Colo. 1986). We will not adopt a

  statutory interpretation that leads to an illogical or absurd result or

  is at odds with the legislative scheme. People v. Cross, 127 P.3d 71,

  73 (Colo. 2006). We also reject interpretations that render words or

  phrases superfluous. Id.

¶ 13   Likewise, when interpreting a constitutional amendment, we

  must give effect to the electorate’s intent in enacting the

  amendment. Campaign Integrity Watchdog, ¶ 19, ___ P.3d at ___.

  We must give words their ordinary and popular meanings to

  ascertain what the voters believed the amendment to mean when

  they adopted it. Id. We also must interpret constitutional

  amendments and statutory provisions together. See id. at ¶ 38, ___

  P.3d at ___.5

                                  C. Analysis

                  1. Interpretation of Section 1-45-103(6)(b)

¶ 14   The ALJ correctly noted that section 1-45-103(6)(b) “speaks

  only of contributions valued by the ‘candidate committees,’” and



  5CIW is not alleging that the FCPA is unconstitutional for
  improperly narrowing section 2(5) of article XXVIII of the Colorado
  Constitution.

                                     7
  posed the question of whether section 1-45-103(6)(b) applies to

  political committees such as CRC. We conclude that section 1-45-

  103(6)(b) applies to all contributions “for which the contributor

  receives compensation or consideration.”

¶ 15   Section 1-45-103(6)(a) states that “‘contribution’ shall have the

  same meaning as set forth in section 2(5) of article XXVIII of the

  state constitution.” The statute begins by incorporating the

  constitutional definitions of “contribution,” which applies, as

  relevant here, to payments made to “candidate committee[s], issue

  committee[s], political committee[s], small donor committee[s], or

  political part[ies].” Colo. Const. art. XXVIII, § 2(5)(a)(I).

¶ 16   According to section (2)(13) Article XXVIII of the Colorado

  Constitution, a “‘[p]olitical party’ includes affiliated party

  organizations at the state, county, and election district levels, and

  all such affiliates are considered to be a single entity for the

  purposes of this article.” The CRC, as a state-level affiliated party

  organization of the Republican Party, qualifies as a “political party”

  to which this section of the Colorado Constitution and the related

  statutes apply.




                                       8
¶ 17   Section 1-45-103(6)(b) pertains to the amount of a

  contribution when “the contributor receives compensation or

  consideration.” It provides that the amount of the contribution is

  the value of the contributor’s payment in excess of the

  compensation or consideration the contributor receives. For

  example, it states that the compensation or consideration might be

  “items of perishable or nonpermanent value, goods, supplies,

  services, or participation in a campaign-related event.” Id. In this

  regard, the statute permits a candidate committee — but not other

  entities — to determine the value of such compensation or

  consideration.

¶ 18   We conclude that interpreting section 1-45-103(6)(b) as

  applying only to payments made to candidate committees that have

  determined the value of the goods and services provided while

  excluding, as relevant here, payments made to political parties

  would lead to an absurd result. See Dist. Court, 713 P.2d at 921. It

  is illogical that the General Assembly intended “contribution” to




                                    9
  enable only candidate committees to determine the value of goods

  and services provided.6

¶ 19   Accordingly, we conclude that section 1-45-103(6)(b) applies to

  the payments to CRC at issue here.

¶ 20   While the Colorado 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 CRC for a good or service, and the amount paid is greater than




  6 We have reviewed the legislative history of the FCPA and have
  found no explanation as to why section 1-45-103(6)(b), C.R.S. 2017,
  refers only to candidate committees. Specifically, we reviewed the
  legislative history of H.B. 1194, 62d Gen. Assemb., 2d Reg. Sess.
  (Mar. 15, 2000) (adding the definition of “contribution” now codified
  at section 1-45-103(6)(b)); H.B. 1132, 64th Gen. Assemb., 1st Reg.
  Sess. (June 3, 2003) (recreating and re-enacting the FCPA in
  response to the 2002 enactment of Article XXVIII by voter initiative);
  and H.B. 1074, 66th Gen. Assemb., 1st Reg. Sess. (July 1, 2007)
  (adding the definition of “contribution” codified at section 1-45-
  103(6)(c)). Nothing in the legislative history we reviewed suggests
  that section 1-45-103(6)(b) applies only to candidate committees
  and, as explained above, we conclude that to read it that way would
  lead to an absurd result. See Burnett v. State Dep’t of Nat. Res.,
  2015 CO 19, ¶ 39, 346 P.3d 1005, 1012 (looking to legislative
  history before concluding that an interpretation of a statute
  proposed by a party would produce absurd results).

                                   10
  its value, only the amount paid in excess of the value is considered

  a “contribution.”

¶ 21   The ALJ rejected CRC’s interpretation and instead relied on

  the broader definition of “contribution” found in article XXVIII and

  adopted by section 1-45-103(6)(a). However, to ignore the plain

  language of section 1-45-103(6)(b) would render it superfluous. See

  Cross, 127 P.3d at 73; see also Dist. Court, 713 P.2d at 921 (“If

  separate clauses within a statute may be reconciled by one

  construction but would conflict under a different interpretation, the

  construction which results in harmony rather than inconsistency

  should be adopted.”); Campaign Integrity Watchdog, ¶ 18, ___ P.3d

  at ___.

¶ 22   Section 1-45-103(6)(a) supports our conclusion because it

  states that the FCPA defines “contribution” the same as article

  XXVIII, in addition to identifying an exception for payments that

  exceed the value of those goods and services. See § 1-45-103(6)(a),

  (b). Further, basic rules of statutory construction dictate that a

  more specific provision prevails over a general provision. § 2-4-205,

  C.R.S. 2017; see also Campaign Integrity Watchdog, ¶ 38, ___ P.3d

  at ___.


                                    11
¶ 23   CIW asserts that the federal and state definitions of

  “contribution” are indistinguishable. We disagree. The federal

  definition broadly considers all “payments” as contributions, while

  the state definition indicates that parts of some payments are not

  included in the definition of “contribution” found in the Colorado

  Constitution.

¶ 24   Thus, we conclude that the difference between the federal and

  state definitions of “contribution” indicates that only the state

  definition excludes the amounts paid equal to the value of goods

  and services. In contrast, the Federal Election Campaign Act

  provides only two broad definitions of “contribution”:

             (i) any gift, subscription, loan, advance, or
             deposit of money or anything of value made by
             any person for the purpose of influencing any
             election for Federal office; or

             (ii) the payment by any person of
             compensation for the personal services of
             another person which are rendered to a
             political committee without charge for any
             purpose.

  52 U.S.C. § 30101(8)(A) (2012). The federal definition does not

  mention anything related to contributions for which the contributor

  receives compensation or consideration. However, section 1-45-



                                    12
  103(6)(b) explains that the amount of a contribution is the

  difference between the payment made by the contributor and the

  value the contributor received. Unlike the federal law, the state

  statute thus addresses situations in which a contributor receives

  something of value as compensation or consideration.

¶ 25   Federal case law may be instructive in interpreting state law

  when the state law is modeled after a federal law. See Flood v.

  Mercantile Adjustment Bureau, LLC, 176 P.3d 769, 772 (Colo. 2008).

  However, the corollary is that where state and federal laws differ, we

  are not required to follow federal law in construing the state

  statutory scheme. See Nicholas v. N. Colo. Med. Ctr., Inc., 902 P.2d

  462 (Colo. App. 1995).

¶ 26   Thus, contrary to CIW’s assertion that the definitions in the

  state and federal laws are indistinguishable, we conclude that the

  General Assembly intended to differentiate between those payments

  for services that equal the value of those goods or services, which

  are not “contributions,” and those made in excess, which are.7



  7 Based on the different federal and state definitions of
  “contribution,” CRC reported the payments for the Loban vendor
  table at issue to the FEC, but not to the state.

                                    13
¶ 27   Finally, the Colorado Secretary of State’s Campaign and

  Political Finance Manual reinforces our conclusion regarding the

  interpretation of section 1-45-103(6)(b). The manual states that

             [a]ny amount paid for a ticket to a fundraising
             event in excess of the value of a meal or other
             amenities provided (which is typically stated)
             constitutes a contribution to the organization
             benefitting from the event. For example, if a
             ticket to an event is $100 and the meal costs
             $25, the ticket purchaser makes a
             contribution of $75 to the entity hosting the
             event.

  Colorado Secretary of State, Colorado Campaign and Political

  Finance Manual 33 (October 2016), https://perma.cc/9CYW-

  C9HU. The manual, while not binding authority, demonstrates that

  any payment made in excess of the value of a good or service is

  considered a “contribution.” See Bd. of Cty. Comm’rs v. Colo. Pub.

  Utils. Comm’n, 157 P.3d 1083, 1088 (Colo. 2007) (“We may consider

  and defer to an agency’s interpretation of its own enabling statute

  and regulations the agency has promulgated.”).

¶ 28   Accordingly, we conclude that, under the plain language of

  section 1-45-103(6)(b), political parties are required to report only

  that portion of payments for services that exceeds the value of the

  services rendered.


                                    14
                   2. Application of Section 1-45-103(6)(b)

¶ 29   Based on the plain meaning of section 1-45-103(6)(b), and

  applying it to political parties, including CRC, we conclude that the

  ALJ erred in limiting his analysis to the definition of “contribution”

  found in article XXVIII and determining that the payments by

  Loban and the Party of Choice for vendor tables were reportable

  contributions.

¶ 30   Here, CRC asserted that the value of the vendor tables, $350,

  was reasonable because the value the contributor received was

  participation in the convention that afforded an opportunity to

  display information to 6000 to 7000 convention attendees and

  because tables often sold out. The ALJ disregarded this argument

  and concluded that regardless of any potential difference between

  the amount paid and the actual value, any payments of this nature

  must be reportable contributions to prevent organizations from

  “shield[ing] all such exchanges from view.” However, the ALJ’s

  interpretation “relied on one part of the constitutional definition of

  contribution while ignoring the [statutory] definition.” Campaign

  Integrity Watchdog, ¶ 38, ___ P.3d at ___. This was error.




                                    15
¶ 31   The amount of a “contribution” includes only payments made

  in excess of the value received by the contributor. CIW, as the

  complainant seeking an order of violation, had the burden to show

  that the three payments at issue were reportable contributions

  under the statute. It thus had to provide evidence — pursuant to

  section 1-45-103(6)(b) — that the value of the vendor tables was

  actually less than the $350 CRC charged. See Colo. Const. art.

  XXVIII, § 2(5)(a)(III); § 24-4-105(7), C.R.S. 2017 (“[T]he proponent of

  an order shall have the burden of proof.”). Because CIW presented

  no evidence contrary to CRC’s assertion, no basis exists to conclude

  that the payments by Loban and the Party of Choice are reportable

  contributions under section 1-45-103.

¶ 32   CIW nevertheless contends that the payments were otherwise

  reportable. We address and reject its contentions.

¶ 33   Relying on the Internal Revenue Code and Colorado law, CIW

  first contends that CRC, as a tax-exempt entity, cannot engage in

  the commercial sale of goods or services because financial

  transactions with political entities “are defined strictly in terms of

  ‘contributions’ and ‘expenditures.’” See 26 U.S.C. § 527 (2012).

  However, this section actually states that political parties are


                                     16
  “organized and operated primarily for the purpose of directly or

  indirectly accepting contributions or making expenditures, or

  both . . . .” 26 U.S.C. § 527(e)(1) (emphasis added). It does not say

  that political parties are organized exclusively to accept

  contributions and to make expenditures.

¶ 34   CIW next contends that these payments could not have been

  payment for “services” as CRC contends, because Loban and the

  Party of Choice were not paying for the tables, but rather for access

  to the convention, an entirely political function, and not a “service”

  activity. However, the exchange between the payors and CRC was

  still a “service.” Paying for a vendor table was an opportunity to

  display information in front of approximately 6000 to 7000 people.

  By paying CRC, Loban and the Party of Choice benefited; there was

  an exchange of value between the payors and CRC. See Black’s

  Law Dictionary 1576 (10th ed. 2014) (“Service” is “[l]abor performed

  in the interest or under the direction of others; specif., the

  performance of some useful act or series of acts for the benefit of

  another, usu. for a fee.”).

¶ 35   As stated above, the relevant inquiry was then whether the

  value of the service (the opportunity to display information at a


                                     17
  vendor table at the convention) was less than the $350 payment for

  it, because only those services that are worth less than the amount

  paid are reportable contributions. Because CIW presented no

  evidence on this issue, it cannot prevail. See Colo. Const. art.

  XXVIII, § 2(5)(a)(III); § 24-4-105(7).

¶ 36   CIW argues in response that the value of such vendor tables

  was incalculable; however, the practice of selling vendor tables at

  state assemblies and conventions is not limited to the CRC. CIW

  could have presented evidence of the typical rates charged for such

  display tables at other political conventions or other events to

  determine if such a price was its actual value. However, CIW did

  not do so.

¶ 37   CIW next contends that the “central holding” of another

  division of this court in Campaign Integrity Watchdog, ¶ 38, ___ P.3d

  at ___, is that any payment received by a political party is a

  contribution, irrespective of the purpose behind the payment.

  However, the holding in that case was narrower than CIW argues.

  Instead, the division held that a political organization is required to

  report as a contribution the value of legal services it received, even

  if such services were gifts, services (where less than equivalent


                                      18
  value was received), or pro bono services. Campaign Integrity

  Watchdog, ¶¶ 40-41, ___ P.3d at ___. This was so even if the legal

  services were not given to promote a candidate’s nomination or

  election. Id. That decision is not analogous to the issues here,

  because there, the political organization paid contributors for their

  services whereas, here, the contributor paid a political organization

  (CRC) for the service it provided.

¶ 38   Moreover, Campaign Integrity Watchdog did not hold that

  payments that lack an element of gratuity are contributions.

  Whether a contribution needs an element of gratuity was not before

  the division, because the division concluded that the “payments” at

  issue were gratuitous in nature. Thus, the analysis of Campaign

  Integrity Watchdog is consistent with our interpretation in this case.

  For example, if a political organization received pro bono legal

  services valued at $2000, it would have to report that contribution

  as the value received.

¶ 39   Last, CIW contends that CRC was required to report these

  payments as “other income.” See Dep’t of State Reg. 10.14, 8 Code

  Colo. Regs. 1505–6. However, the issue of whether the payments

  are “other income” in the regulations was not alleged by CIW, was


                                       19
  not addressed by the parties or the ALJ at the hearing or in the

  ALJ’s final decision, and did not form the basis for this appeal.

¶ 40   Unless a hearing officer has no authority to address it, an

  issue not raised before a hearing officer is waived. Chostner v. Colo.

  Water Quality Control Comm’n, 2013 COA 111, ¶ 39, 327 P.3d 290,

  298. Because the ALJ had the authority to address this contention,

  no exceptions apply here. Thus, CIW has waived this argument;

  therefore, we will not consider it.

¶ 41   Because CIW’s arguments are unavailing, we conclude that

  the ALJ erred in finding that the payments at issue are reportable

  contributions under state law.

                               III. ALJ’s Order

¶ 42   CRC contends that the ALJ erred in imposing a $4600 fine for

  its failure to report Loban’s payment and in ordering it to amend its

  report of contributions and expenditures to include an LLC

  affirmation for the payments by the Party of Choice, or otherwise to

  return the payment from the Party of Choice. We agree. Because

  this part of the ALJ’s order was premised on the Party of Choice’s

  payments being contributions — a premise we have rejected — that

  part of the ALJ’s order must be reversed.


                                        20
¶ 43   CRC also contends that because private enforcement of

  Colorado’s campaign finance laws is unconstitutional, CIW cannot

  file a private lawsuit against CRC and thus the ALJ had no power to

  impose fines and sanctions upon CRC.

¶ 44   Because we have concluded that the ALJ erred in determining

  that the payments by Loban and the Party of Choice were

  contributions under Colorado law and reverse the order, we need

  not address whether private enforcement of Colorado’s campaign

  finance laws is unconstitutional.

                            IV. Request for Costs

¶ 45   CIW requested recovery of its costs incurred “due to

  Respondent-Appellant CRC’s substantially frivolous and groundless

  appeal.” However, because we conclude that CRC prevails on its

  claims, CIW is not entitled to an award of costs. See Valentine v.

  Mountain States Mut. Cas. Co., 252 P.3d 1182, 1188 (Colo. App.

  2011).

                                V. Conclusion

¶ 46   Accordingly, the part of the order imposing a fine and

  sanctions against CRC for failing to disclose the relevant payments

  is reversed.


                                      21
JUDGE LICHTENSTEIN and JUDGE CARPARELLI concur.




                      22
