Colorado Supreme Court to hear 1st Amendment challenge to state’s campaign finance laws
The Colorado Supreme Court hears arguments tomorrow (Weds, 8 May 2013) in a 1st Amendment challenge to the state’s campaign finance laws (pursuant to a request to clarify the “scope & meaning” of Colorado campaign finance laws in an order issued by a Federal judge late last year). According to a statement issued last Fall by the Center for Competitive Politics,
Senior Judge John L. Kane of the United States Court for the District of Colorado asked the state Supreme Court to “provide clear guidance… as to the scope and meaning” of provisions that have been challenged under the First Amendment to the US Constitution.
The request for clarification to the Colorado Supreme Court was issued due to a lawsuit challenging the state’s campaign finance laws as an unconstitutional violation of free speech rights under the First Amendment. The case, Coalition for Secular Government v. Gessler, No. 12-cv-1708, was filed in Federal court earlier in 2012.
The legal challenge raises important questions about political free speech, as summarized in the article, “Colorado’s Opportunity to Protect First Amendment Rights” (earlier published as a guest commentary on the Clear The Bench Colorado judicial accountability organization’s website) and as listed below.
Questions certified by the Federal judge (asked of the Colorado Supreme Court for clarification) include:
- Does the Colorado Constitution treat money spent on a policy paper, including one that suggests how the reader should vote on a ballot initiative, as the equivalent of money spent on political ads?
- Does the state constitution entitle policy papers distributed over the internet to be treated in the same way as newspaper and magazine editorials for purposes of campaign finance law?
- In light of a federal decision declaring certain groups too small to be regulated by the state of Colorado, what is the monetary trigger for an issue committee under the state constitution? Is it the roughly-$1,000 mentioned in the federal opinion? The $3,500 contemplated by CSG? The $200 mentioned in the constitution itself? Or another number altogether?
Colorado’s campaign finance laws are frequently used by well-funded special-interest groups as a tool to suppress political speech by grassroots organizations – facilitated by the odd fact that enforcement of the law is NOT prosecuted by the state, but rather by the individual (or organization) filing the complaint (effectively, it takes lawyers, time, and money to hold violators accountable for breaking the law).
Attempts at reforming Colorado’s campaign finance laws are invariably met with resistance from special-interest groups, many of whom are not subject to the same reporting and disclosure requirements that they support imposing on others.
Fortunately, some have fought for the preservation of political free speech, and have won some hard-fought victories in court. 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 (the $200 trigger on reporting contributions) were held to unduly burden the rights of free association and free speech protected under the 1st Amendment, among our most cherished rights.
The Center for Competitive Politics statement sums it up nicely:
“For years, organizations in Colorado have been unsure how to comply with Colorado’s campaign finance rules, or have been subject to politically-motivated complaints for making minor errors,” CCP Legal Director Allen Dickerson said. “Some choose not to speak at all in the face of this situation. The Colorado Supreme Court now has the option of bringing a measure of predictability to some of the state constitution’s more difficult provisions.”
Clarification of the confusing cloud of campaign finance laws in Colorado that challenge the Constitution, chill free speech, and curtail civic participation is not only welcome – it’s long overdue.
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.
Ultimately, though – it’s worth the effort.