Reforming Colorado’s Unconstitutional Campaign Finance Laws

Published December 14, 2011 | By CTBC Director

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

Abridging the freedom of speech – particularly political speech – has a long and sordid history, as the ruling ‘Establishment’ or entrenched special interests seek to suppress criticism and competition.

Techniques have evolved from outright bans, gag orders, and brutal repression to a more subtle and “civilized” approach: suppression by regulation and legal intimidation.

In today’s Colorado, for example, your right to engage in 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 first 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.

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

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.

Last May, after soliciting and reviewing written comments and holding public hearings, based on the overwhelming weight of public comment and testimony in favor of raising the registration and reporting threshold, the office of Secretary of State adopted the new rule on 13 May 2011.

Unsurprisingly, the rules change was challenged in court – by the perennial campaign finance attack group “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do), and advocacy group “Common Cause” which despite extensive political participation are not subject to the same financial disclosure and reporting regulations as the groups they attack.

Recently, Denver District Court Judge A. Bruce Jones ruled that Gessler “went beyond his authority” in adopting the rules change (Gessler is appealing). Judge Jones (who is subject to a retention vote in 2012) had earlier “unloaded on Colorado Secretary of State Scott Gessler” at the initial hearing on the case – later admitting that he had not yet read the written briefs before issuing his critical remarks.

Pending the appeal, the office of Secretary of State is again holding public hearings (and accepting written comment) on these and other rules changes to Colorado’s campaign finance laws – most of which are oriented towards clarifying, simplifying, and/or reducing the burden on political participation.

The Revised Draft of Proposed Rules is posted on the Secretary of State’s website, along with written comments submitted in support or opposition.

Clear The Bench Colorado submitted a written brief in support of Proposed Rule 4 (clarifying requirements for Issue Committees) and Rule 20 (Redaction of Sensitive Information) and will offer verbal testimony at Thursday’s hearing as well.

(Hearing is scheduled for December 15, 2011 from 9:00AM to 12:00PM in the Blue Spruce Conference Room on the 2nd floor of the Secretary of State’s Office at 1700 Broadway, Denver CO 80290)

Written Comments

Additional commentary on Colorado’s campaign finance regime

It’s Time To Bring Some Sanity To Campaign Finance Laws, Forbes Op/Ed 13 December 2011
Gessler emerges as the Free Speech Secretary of State, 13 December 2011
There’s a Good Gessler, Too, Denver Post editorial 4 December 2011
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.

Reforming Colorado’s Unconstitutional Campaign Finance Laws

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