UPDATE: The Denver Post’s editorial board weighed in the problem.
The Colorado Secretary of State’s office will ask for legislative help on a campaign finance issue after the 10th Circuit Court of Appeals refused its request to “execute us or set us free.”
In two separate rulings, the most recent one last week, the court has concluded that Colorado’s regulatory framework for setting up what is known as an issue committee is so cumbersome it violates free speech and is unconstitutional. But the rulings — which cover activities under four secretaries of state — apply only in the context of the two cases that were filed.
“The secretary is better served seeking help from the institution best equipped in our governmental system to solve the problem – the Colorado legislature,” the three-member panel of judges wrote in its March 2 decision.
Voters in 2002 approved a constitutional amendment that set the contribution-and-expenditure threshold for issue committees at $200. An issue committee is any group of two or more people formed to support or oppose a measure that has collected or spent more than $200 in its effort.
One legislative proposal under discussion would still require issue committees to register with the Secretary of State once $200 had been raised, but detailed reporting wouldn’t kick in until $5,000 is raised.
“The devil’s in the details,” Luis Toro, director of Colorado Ethics Watch, said, when asked what his group thought of the suggestion.
The most recent court case involves the Coalition for Secular Government, which formed to advocate against various statewide “personhood” issues on the ballot that critics said would ban abortion. Its activities triggered issue-committee reporting requirements under Colorado law, and the group was fined for not filing timely reports.
The coalition sued then-Secretary of State Scott Gessler in U.S. District Court, wanting the court to declare that the coalition’s “expected activity of $3,500 does not require registration as an issue committee.”
The 10th Circuit earlier ruled in another case involving an annexation in the town of Parker. Citizens, including Karen Sampson, opposed to the annexation banded together and posted yard signs and distributed fliers, but didn’t report raising money, which led to a campaign finance complaint when Mike Coffman was secretary of state. Sampson said they spent more money defending themselves than fighting the annexation.
The case, file under Coffman’s successor, Secretary Bernie Buescher, ultimately went to the 10th Circuit Court of Appeals, where judges ruled that the amount of campaigning didn’t justify the burden of complying with Colorado campaign finance’s laws. But the court didn’t say what the limit should be.
In response to Sampson, when Gessler took office in 2011, he changed the rules to raise the registration threshold to $5,000. Colorado Ethics Watch successfully sued, with a Denver judge saying Gessler couldn’t be some “roving do-gooder” who can just fix problems in the constitution with a new rule.
U.S. District Court Judge John Kane cited the Sampson case in siding with the Coalition for Secular Government. He also awarded attorneys’ fees to the group and advised lawmakers “that the Secretary will be on the hook for fees every time a group … falls under the $200 trigger for issue committee status and has to sue to vindicate its First Amendment rights.” The Sampson case cost taxpayers around $600,000.
The Secretary of State’s office appealed and Colorado Ethics Watch and Colorado Common Cause filed an amicus brief in support. Toro said he believe the District Court was wrong in citing Sampson because a municipal issue is much different than a statewide ballot measure.
Assistant Solicitor General Matt Groves argued last fall that if the Court of Appeals believe the provision was unconstitutional, then it should declare it unconstitutional in its entirety instead of just for a particular case.
“Execute us or set us free, your honor,” Grove said.
“Here we do neither,” the court ruled in its opinion.
It directed the secretary of state to solve the problem by going to the Colorado legislature for relief. Although lawmakers cannot overturn Amendment 27, “a floor of $200 does not require the same full reporting as for larger-scale issue committees,” the court concluded.
Deputy Secretary of State Suzanne Staiert now is talking with legislators about some kind of fix.
“Citizens seeking to participate in the public process have no certainty about the law’s requirements,” she said. “Efforts by our office — including administrative rules, legislation and direct appeals to the courts — have all been rejected. It is unfortunate that the court continues to issue as-applied rulings that offer no guidance. ”