Colorado’s ‘Campaign Finance Laws’ challenge the Constitution, chill free speech, and curtail civic participation

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
1st Amendment to the United States Constitution, ratified 15 December 1791

Ruling elites – be they monarchs or oligarchs, dictators or demagogues, or even elective bodies purporting to represent the will of the people – have long sought to suppress criticism and competition through the use of laws or regulations restricting the right and ability of individuals and groups to organize and speak out effectively.

Techniques have evolved from outright bans and brutal repression to a more subtle approach: suppression by regulation and legal intimidation.

In today’s Colorado, for example, your right to free speech on political issues is not banned – perish the thought! – although to practically and effectively exercise that right, by collecting and spending money to reach a mass audience, you’ll need to fill out a few forms…

Actually, you’ll need to do far more than that.  Under Colorado’s campaign finance regime, if you wish to speak out on issues or questions that may appear on the ballot, you’ll need to form and register an “Issue Committee” – as defined in Colorado Constitution Article XXVIII, § 2(10)(a):

(10) (a) “Issue committee” means any person, other than a natural person, or any group of two or more persons, including natural persons:
(I) That has a major purpose of supporting or opposing any ballot issue or ballot question; or
(II) That has accepted or made contributions or expenditures in excess of two hundred dollars to support or oppose any ballot issue or ballot question.
(b) “Issue committee” does not include political parties, political committees, small donor committees, or candidate committees as otherwise defined in this section.

The amount of paperwork and resources (time and/or money) required in order to simply exercise a fundamental right (freedom of speech) is significant, and itself exerts a chilling effect on civic or political participation.  Individuals and small groups, particularly those becoming active for the first time, face a daunting amount of red tape: establishing and registering a committee, opening a separate bank account, keeping detailed financial records, filing frequent and detailed reports of contributions and expenditures – all under threat of fines and other legal sanctions for mistakes, no matter how minor.

Even if they DO follow the rules to the letter, committees may STILL be forced to defend their right of civic participation in court, thanks to the proliferation of legal attack groups (such as the grossly misnamed “Colorado Ethics Watch” – CEW, pronounced “sue”, it’s what they do) that exist solely for the purpose of harassing and diverting resources from ideologically opposed organizations.  The cost of defending against such attacks is another deterrent to participation.  Even a successful defense can cost tens of thousands, and even defeating an attack so completely without merit (in legalese, a “frivolous, groundless, and vexatious” complaint such as the CEW attack on Clear The Bench Colorado) that the judge takes the rare step of awarding attorneys fees to the defense can divert scarce resources (and take months, if not years, to collect). [Ed. to date, CEW still refuses to pay what they owe to CTBC, continuing to contest the judgment against them all the way to the Colorado Court of Appeals]

Origins of Colorado’s Campaign Finance Regime

Interestingly, many of these restrictions on freedom of (political) speech are a relatively recent development.  In 2002, as part of the wave of “campaign finance reform” measures that swept in the subsequently-found-unconstitutional McCain-Feingold law on the national scene, Colorado voters were persuaded to vote for Colorado Amendment 27 (which became Colorado Constitution Article XXVIII).

Many of these so-called “campaign finance reform” measures have since been found unconstitutional, as violating First Amendment rights of freedom of speech and freedom of association – in a word, censorship.  However, until challenged, many of the laws remain on the books – forcing individuals to fight for their fundamental constitutional rights in court.

Constitutional Challenges to Colorado’s Campaign Finance Regime

One such recent court case originating in Colorado, Sampson v. Buescher, resulted in a Federal court (10th Circuit) holding certain sections of Colorado Constitution Article XXVIII in violation of the United States Constitution.  Specifically, provisions of Article XXVIII were held to unduly burden the rights of free association and free speech protected under the 1st Amendment, among our most cherished rights.

The rationale behind Article XXVIII (as Amendment 27) was to reduce “disproportionate influence” over the political process by “large campaign contributions.”  The 10th Circuit held that Colorado’s $200 trigger for requiring committee registration and subsequent disclosure and reporting failed to meet the test of either “large contributions” or “disproportionate influence” that might justify public interest, and was therefore an unconstitutional  burden on the freedoms of speech and association protected under the First Amendment.

Rolling Back the Regime – Restoring Constitutional Protections

In response to the 10th Circuit’s ruling in Sampson v. Buescher, the office of Colorado Secretary of State (beginning under outgoing SOS Buescher, continued and successfully concluded under newly-elected Secretary of State Scott Gessler), pursuant to the Secretary’s constitutional rule-making authority under Article XXVIII, Section 9(1)b, proposed a rules change to raise the registration and reporting threshold for Issue Committees to $5,000 in order to bring Colorado’s requirements in line with the court’s ruling.

Following a period of soliciting and reviewing written comments on the draft proposed rule, the office of Secretary of State held public hearings to allow concerned citizens and groups to express comments, concerns, questions, and suggestions.

It is interesting to note that of those who submitted written comments, those in favor of the new rule (relaxing the threshold for registering and reporting committee activities) included over a dozen individual citizens, and no special interest groups.  Conversely, those submitting comments against the new rule (advocating for continued imposition of what has been ruled an unconstitutional infringement of free speech) were ALL representatives of special-interest groups and organizations, including:

• Elena Nunez of Colorado Common Cause
• Jenny Flanagan of Colorado Common Cause
• Luis Toro of “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do).  (Comments submitted 1-26-11 and 5-3-11)
• Mark Grueskin, Democrat party attorney and frequent campaign finance litigant (Comments submitted 1-10-11, 1-26-11 and 5-6-11)
  Astute observers of Clear The Bench Colorado (or of Colorado politics in general) may recall Mark Grueskin from his role in establishing a shadowy and well-funded special-interest group to counteract the Clear The Bench Colorado judicial accountability efforts during the 2010 judicial retention elections.

(The full list of written comments submitted by interested individuals and groups before and after the hearing is available on the Secretary of State’s website)

Also of interest: NONE of the aforementioned special-interest groups, despite their professed zeal for “open, transparent, and accountable” practices including full disclosure and reporting of all contributions and expenditures, make their finances available for public view.  NONE.

Several individual citizens (but only a single representative of the above-listed special-interest groups, Jenny Flanagan of Colorado Common Cause) showed up in person to testify – almost exclusively (one exception) in favor of relaxing the threshold for Issue Committee registration and reporting).  Citizen activist Ari Armstrong (of Free Colorado) was on hand to testify, and also recorded testimony of others.

Clear The Bench Colorado Director Matt Arnold submitted written comments before the hearing, and also showed up in person to testify (video courtesy of Ari Armstrong, Free Colorado)

Both written comments and oral testimony conclude with what I consider the most powerful argument against Colorado’s campaign finance regime:

In summary: the attack dogs, firehoses and truncheons previously used to harass and intimidate citizens wishing to exercise their rights of free speech and association have been replaced as tools by the more “civilized and sophisticated” use of lawyers and bureaucrats with the power to impose fines & penalties – even imprisonment – instead of mere physical beatings.

The overall effect – intimidation and abuse of power – remains remarkably similar.

Following the overwhelming weight of public comment and testimony in favor of raising the threshold for Issue Committee registration and reporting, in what must be considered a victory (albeit incremental) for free speech rights, the office of Secretary of State adopted the new rule on 13 May 2011.

Additional commentary on Colorado’s campaign finance regime (H/T Ari Armstrong):

• SOS Looks To Mitigate Burden Of Campaign Censorship Laws, 2 May 2011
• Why Colorado’s Campaign Laws Constitute Censorship, 5 May 2011
• CO Campaign Laws Chill Speech, 6 May 2011
• Colorado’s Campaign Laws Throw Common Sense Out The Window, 13 May Grand Junction Free Press
• Public’s ‘right to know’ can clash with right free speech, 14 May Colorado Springs Gazette

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free –nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.