campaign finance

Colorado Supreme Court to hear 1st Amendment challenge to state’s campaign finance laws

Published May 7, 2013 | By CTBC Director

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.”

Our View:

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.

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.

Colorado’s Opportunity to Protect First Amendment Rights (Guest Commentary, Center for Competitive Politics)

Published March 29, 2013 | By Guest

Colorado’s Opportunity to Protect First Amendment Rights was written by Tyler Martinez and originally published by the Center for Competitive Politics, and is re-published here as a guest commentary with the permission of the original author/publisher.
Clear The Bench Colorado occasionally publishes articles of topical interest as guest commentaries;
for further information, contact us here.

Colorado’s Opportunity to Protect First Amendment Rights

May the government ban the publication of books if they contain only one sentence of express advocacy, such as “Vote for Smith”?

At the oral argument for Citizens United v. FEC, the federal government argued that campaign finance laws could ban a corporation, presumably including book publishers, from producing a book with even one sentence of express advocacy. The government’s stance was so shocking that the U.S. Supreme Court ordered another set of briefings and arguments on that issue, and today we have the famous decision upholding the right of corporations to make independent expenditures.

This May, a similar question will be heard by the Colorado Supreme Court in Coalition for Secular Government v. Gessler. This case centers around a small nonprofit, run by Diana Hsieh, a doctor of philosophy, who wanted to discuss a secular understanding of the principles of life, liberty, and property. To do this, Dr. Hsieh formed a nonprofit corporation, which she named the Coalition for Secular Government (CSG). CSG commissioned a paper discussing its philosophy regarding human personhood, written by Dr. Hsieh and her friend Ari Armstrong. On behalf of CSG, Dr. Hsieh and Mr. Armstrong raised money from their friends to help pay for the costs of writing and publishing the paper. They also ran some Facebook ads and made flyers to let people know about the paper.

The paper is 32 pages long, with 176 endnotes. It makes philosophical arguments concerning the complex public policy debate surrounding the definition of personhood. The paper used a proposed Colorado ballot measure as a backdrop for its discussion on the issue. The paper concludes with a single sentence of express advocacy: “If you believe that ‘human life has value,’ the only moral choice is to vote against Amendment 62.”

This one sentence of express advocacy meant that CSG may be forced to register as a issue committee with the state of Colorado. The state’s own briefing in the case has admitted that, but for this single sentence, the paper would go entirely unregulated by the Colorado government. While Colorado does not ban books, it does demand burdensome reporting and disclosure. Registration requires reporting the names and addresses of people who give more than $20 to help a cause—even if it is free help with Web design by a family member. Registration also requires documenting which post office an organization uses, and from which Office Depot it purchases printer paper.

The costs of failing to file these extensive reports, or not filing properly, can be extreme. One day, Dr. Hsieh’s house flooded and she was a day late with CSG’s required report. She then faced a $50 per day fine. Fortunately, this fine was waived, but only after needing to plead with the Secretary of State’s office. Even normal, non-flood-related compliance with Colorado’s byzantine filing system frustrated Dr. Hsieh and left her in constant fear of fines or lawsuits, just because she wanted to weigh in with her philosophical views.

This is not the first time the registering and reporting burdens required of issue committees has come up in Colorado. In the 2010 case of Sampson v. Buescher, a small group of residents outside of Parker, Colorado, came together to fight being annexed into the City of Parker. These individuals had raised less than $1,000 for their cause when their opposition challenged the failure of the neighbors to register as an issue committee.

In assessing the homeowners’ challenge, the Tenth Circuit concluded that Colorado’s issue committee disclosure and reporting requirements “substantial[ly]” burdened the homeowners’ First Amendment rights. The court relied on Citizens United and held that: “[t]he First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day.”

Unfortunately, the state of Colorado failed to heed the Tenth Circuit, and CSG had to call the legal team at the Center for Competitive Politics (CCP) for help. The CCP legal team filed a complaint alleging that, even though CSG plans to raise no more than $3,500 for updating and publishing their public policy paper, the state of Colorado appears to demand that CSG register as an issue committee. Once registered, CSG will again face all of the burdens of reporting their friends and allies, naming where they bought envelopes, and facing lawsuits and fines from the state for making even the slightest mistake.

Interestingly, CSG’s case was initially brought before a federal court. But Colorado law is so ambiguous that the federal judge had to ask the Colorado Supreme Court just what the Colorado law means. As a result, CCP will be before the Colorado Supreme Court this May 8 arguing the merits of registering lengthy policy papers with only one sentence of express advocacy.

As the Citizens United Court noted, it does violence to freedom of speech when a citizen must hire an attorney just to be sure how to speak. Hopefully, the Colorado Supreme Court will agree with that principle.

 Related Articles:

Colorado Supreme Court asked by Federal judge to clarify state campaign finance laws

Speaking Out on Reforming Colorado’s Campaign Finance Laws

Colorado Supreme Court asked by Federal judge to clarify state campaign finance laws

Published October 5, 2012 | By CTBC Director

The Colorado Supreme Court has been asked to clarify the “scope and meaning” of Colorado campaign finance laws, in an order issued by a Federal judge earlier this week.  According to a statement issued 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 this year.

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.”

Our View:

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.

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.

Speaking Out on Reforming Colorado’s Campaign Finance Laws

Published December 19, 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.

In “modern” and “civilized” times, the tools of repressing political speech have “evolved” from the brute force of physically preventing anyone from speaking out to the more subtle and “sophisticated” methods of legislating limits, building bureaucratic barriers, and piling on paperwork for “permission” in order to exercise what is a fundamental right.

A confusing cloud of campaign finance laws in Colorado challenge the Constitution, chill free speech, and curtail civic participation.

On Thursday December 15th, the office of Colorado Secretary of State held open hearings to receive public testimony (chaired by Secretary of State Scott Gessler) on rules changes oriented towards clarifying and reforming Colorado’s unconstitutional campaign finance laws.

A number of people – both supporting and opposing specific rules changes, and/or speaking out more generally on the topic of the impact of campaign finance laws on political speech and civic participation – submitted written comments, showed up in person to testify, or both.

Curiously, the people supporting the reforms to campaign finance rules largely spoke as individuals or as representatives of small, grassroot organizations, while those opposing the rules reforms almost uniformly represented well-established politically-active special interest groups (see below for list).

A common theme emerged regarding the complexity of existing campaign laws, and the resultant cost, burden and difficulty of compliance.

Some people – such as Colorado state senator John Morse – think that’s just “the price of transparency”:

(Video courtesy of Ari Armstrong of Free Colorado)

Organizations opposing rules changes to reform campaign finance laws at the hearing:

Curiously, none of these politically active organizations – NOT ONE – is subject to the same reporting and disclosure requirements that they support imposing on others.
(NOTE: the state Democrat and Republican parties are subject to some campaign finance reporting and disclosure requirements, but differ in some details)

In fact, the Colorado Statesman profiled some of these groups in a pair of articles last year:

Testifying in favor of rules changes to reform campaign finance laws at the hearing:


Clear The Bench Colorado director Matt Arnold testifies in favor of reforming Colorado campaign laws

The Revised Draft of Proposed Rules is posted on the Secretary of State’s website, along with written comments submitted in support or opposition.  Interested individuals or groups can still submit written comments to the Secretary of State’s office until Friday, 23 December.

Other videos on how Colorado campaign laws adversely impact free speech:

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

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

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.

Colorado Supreme Court Justice Alex Martinez announces impending resignation, takes city job in Denver

Published August 24, 2011 | By CTBC Director

Colorado Supreme Court Justice Alex Martinez unexpectedly announced earlier today (Wednesday, August 24th 2011) that he intends to resign his seat on the state’s highest court in order to take a job with the City of Denver as Manager of Safety.

Justice Martinez, who was retained in office November 2010 with the lowest percentage of “retain” votes for an incumbent state supreme court justice in Colorado history (59%, narrowly edging current Chief Justice Michael Bender’s 60% and Justice Nancy Rice’s 62% for “worst ever;” incumbent supreme court justices are typically retained with 75-80% of the vote) could have continued to hold office for another decade.

Clear The Bench Colorado considers it a win for Colorado – and the damaged reputation of the Colorado judiciary – that he will not.

At the risk of once again being called “the skunk at the garden party” by the Denver Post, we point out the “troubling legacy” of Justice Martinez’s tenure on the bench (much as the “troubling legacy” of resigning Chief Justice Mary Mullarkey was reviewed at the time of her resignation – by the Post).

Justice Martinez was in fact one of the most reliable members of the highly political “Mullarkey Majority”, joining in or writing all of the key decisions over the past decade that made a mockery of constitutional jurisprudence in Colorado:

Justice Martinez’s legacy on the Colorado Supreme Court is indeed “troubling” – as noted in the Evaluations of Judicial Performance published prior to the November 2010 election.

While we bear Justice Martinez no personal animosity (by all accounts, he’s a nice guy) and wish him the best in his future endeavors as Denver Manager of Safety, we greet his departure from the Colorado Supreme Court with favor and look forward with guarded optimism to welcoming a new Colorado Supreme Court justice dedicated to upholding the Colorado Constitution and restoring the rule of law.

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.

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

Published May 17, 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

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:

(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):

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.

CEW and Colorado “not-so” Independent continue tag-team “disingenuous” spin on campaign finance reporting, continuing baseless (and erroneous) attacks on Clear The Bench Colorado

Published May 24, 2010 | By CTBC Director

“First they ignore you; Then they ridicule you; Then they attack you; Then you win.”      Mohandas K. (Mahatma) Gandhi

Clear The Bench Colorado is firmly within the 3rd phase of Gandhi’s aphorism; following the filing earlier this month of an unfounded “campaign finance complaint” by notorious leftist attack group “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) “picked up” as “news” primarily by the left-wing propaganda outlet Colorado “not-so” Independent, the CEW/CnsI tag team continues to spin any related news developments into yet another attack on Clear The Bench Colorado.

The most recent example turned up in an article published earlier today by the Colorado “not-so” Independent previewing the scheduled signing by Governor Ritter of “three influential bills into law Tuesday” (“influential bills?”  where did the CnsI reporter learn to write?) in which the reporter really had to stretch to create a connection with which to attack Clear The Bench Colorado:

Another bill will require campaign issue committees to disclose the same donor information as candidate committees. Colorado Ethics Watch recently highlighted the topic in pointing out possible problems of mis-categorization, arguing that issue committee Clear the Bench Colorado, which is asking Coloradans to vote supreme court justices off the bench, is about candidates not any one issue, and that it should be confined to candidate finance restrictions. Ethics Watch says the practice of non-disclosure of large donations to judicial campaigns could allow criminals to purchase safe judicial havens. The new bill would require disclosure.

One problem: the bill in question (HB10-1370) does not mean what the reporter thinks it means. (Inconceivable!)  ”Donor information” is NOT a subject of the bill at all; the “Disclosure Requirements” included in the bill simply refer to formalization of a mandate to include the name of the sponsoring Issue Committee on any communications in order to avoid “perception of purposefully anonymous interests attempting to influence the outcome of the election”:

1-45-108.3. Issue committees – disclaimer.  (1) AN ISSUE COMMITTEE MAKING AN EXPENDITURE IN EXCESS OF ONE THOUSAND DOLLARS ON A COMMUNICATION THAT SUPPORTS OR OPPOSES A STATEWIDE BALLOT ISSUE OR BALLOT QUESTION AND THAT IS BROADCAST BY TELEVISION OR RADIO, PRINTED IN A NEWSPAPER OR ON A BILLBOARD, DIRECTLY MAILED OR DELIVERED BY HAND TO PERSONAL RESIDENCES, OR OTHERWISE DISTRIBUTED SHALL DISCLOSE, IN THE COMMUNICATION PRODUCED BY THE EXPENDITURE, THE NAME OF THE ISSUE COMMITTEE MAKING THE EXPENDITURE.

Clear The Bench Colorado has ALWAYS – even in the absence of any formal requirement to do so – included the name of the organization (along with contact information, including our website) on all of our communications, because we believe in and practice transparency and integrity (full disclosure). Clear The Bench Colorado has never felt the need to hide behind “anonymous interests attempting to influence the outcome of elections… through the expenditure of large sums of money.”

Ironically, the integrity and transparency of the Clear The Bench Colorado movement to restore accountability to our judiciary contrasts markedly with “the practice of non-disclosure of large donations to judicial campaigns [which] could allow criminals to purchase safe judicial havens” exemplified by the recent formation of the 501(c)4 organization formed by former justice Dubofsky and Democrat lawyer Grueskin to defend incumbent Colorado Supreme Court justices in response to the growing momentum and resonance of Clear The Bench Colorado, as that organization does NOT have to disclose sources of funding to the public.  They are completely unaccountable.

Strangely, “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) seems to have no issue with the “expenditure of large sums of money” to influence judicial elections by such anonymous, unaccountable organizations.

It is time for “We The People” to restore accountability to our judiciary - exercise your right to vote “NO” this November on the four ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority”- (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.”  Help to support Clear The Bench Colorado with your comments (Sound Off!) and your contributions – and vote “NO” on giving these unjust justices another 10-year term!

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