Federal lawsuit attacks Colorado’s money-in-politics enforcement system
We’re the only state where private citizens must pay to prosecute complaints while politicians can use state money to defend them
Want to know who’s making sure Coloradans are obeying the state’s campaign finance laws? Look in the mirror.
The Centennial State has long been unique in having a money-in-politics system watchdogged not by trained investigators or regulators, but by average citizens. It’s called private-party enforcement, and under that system citizens here have to bring complaints themselves against those in power they feel might be violating the law.
Today, the nonprofit Institute for Justice, a public interest group based near Washington, DC, filed a federal lawsuit attacking Colorado’s system of private party enforcement for regulating campaign finance laws.
The Institute is suing on behalf of Tammy Holland, a Colorado mother from Strasburg, who had taken out ads in her local newspaper about an upcoming school board election. (You can find more background on Holland’s particular issue here.)
“Tammy did not endorse any particular candidate; she just wanted voters to know their options,” the Institute wrote in a news release. “For the ads, Tammy found herself sued not once, but twice, by school board officials who sought to silence her speech.”
Colorado’s campaign finance system was created by the Colorado Constitution. The Institute for Justice is suing Colorado’s Secretary of State in federal court, however, on grounds that the state’s third-party enforcement system is a violation of the U.S. Constitution.
“Colorado has essentially outsourced the enforcement of its campaign-finance laws to every politico with an ax to grind,” said Sherman, the group’s senior attorney in a statement. “That’s not just bad policy, it’s unconstitutional. Under the First Amendment, nobody should have to fear being sued by their political opponents merely for expressing their opinion on the issues that matter most to them.”
That’s not just some outside group making wild accusations against Colorado. His characterization is a criticism observers here have leveled for years.
Deputy Secretary of State Suzanne Staiert told The Colorado Independent that her office has been expecting a lawsuit like this for the last couple of years*. She’s heard plenty of complaints about the private enforcement aspect of campaign finance in Colorado.
“We’ll be responding and defending the suit … we’re certainly going to defend it,” she said. “But from a policy perspective we certainly understand some of these concerns.”
She said this session the Secretary of State’s office is hoping to support a bill that would establish administrative law judges who specialize in campaign finance.
“This is an issue that a lot of people on the left and the right agree on,” Staiert says. “We need to have some speciality in the campaign finance world because we need some certainty.”
Colorado’s current system is one of the reasons the state earned a D+ in the latest State Integrity Investigation by the Center for Public Integrity that graded each state on its risk for corruption. (I’d spent the better part of last year working on that report.)
From the November 2015 State Integrity Investigation:
Colorado’s reputation for clean government might have a lot to do with how difficult it can be to uncover examples of bad behavior. Money-in-politics reports and financial disclosures filled out by the state’s politicians and judges aren’t formally audited in ways that could detect problematic campaign finance issues.
So instead, rooting out ethics violations in Colorado falls mostly to the private sector. That can mean rival campaign operatives, nonprofits, political groups with agendas or the unlikely average citizen who just might have the time and resources to prove their case in court.
“Colorado is the only state where private citizens are expected to prosecute ethics complaints at their own expense while the state pays for the defense of officials accused of wrongdoing,” said Luis Toro, director of Colorado Ethics Watch, a nonprofit watchdog. His group, which doesn’t disclose its donors, pursued the successful complaint against the former secretary of state for using state money to attend a political event. Ethics Watch had to pay to fight the case at its own expense.
In November, reporter Megan Schrader of The Colorado Springs Gazette quoted two out of the three people who work for organizations that have filed the most campaign finance complaints in Colorado. They both found the current system lacking.
“It’s a real weakness of the system,” said Matt Arnold of Campaign Integrity Watchdog, whose group has filed the most complaints in Colorado. “With any other law, the district attorney will prosecute the case and it’s the state enforcing the state’s laws.”
Arnold tells The Independent he’ll be following this case closely. He says he’d like to see a different system in place, but worries leaving enforcement up to the Secretary of State’s office could be problematic because the Secretary of State is a partisan elected official.
“Maybe the way to go is an independent commission,” he says. “The thing is: there are so many violations, and the enforcement is selective and it’s based on who has the motivation and the ability to go look.”
Defenders of Colorado’s current system say it saves taxpayer money by not having a fully staffed government entity to handle complaints like other states.
Luis Toro, the director of Colorado Ethics Watch, a nonprofit group he believes is the third most frequent filer of complaints, says his group’s view is that Colorado’s private-party enforcement system might be bad policy but it isn’t unconstitutional.
“I would expect conservatives to love Colorado’s privatized campaign finance enforcement system,” Toro had snarked on Twitter after reading a guest column about the lawsuit by the Institute’s attorney that ran this morning in The Denver Post. “But if they want Big Government to take over enforcing campaign finance laws, that wouldn’t be the worst result.”
Ethics Watch points to the way Montana’s campaign finance enforcement system operates as a potential model for Colorado. A commission in Montana has a staff of seven in a state much less populated than here.
“I’m not aware of any complainant in a Colorado campaign finance case that has anything close to that level of resources,” Toro says.
Colorado does have an Independent Ethics Commission, but it’s an understaffed and underfunded bureaucratic outpost that can’t seem to retain an executive director and has been accused of having inherent conflicts of interest.
Says Jane Feldman, a former director of Colorado’s Independent Ethics Commission who now works in ethics compliance in the New York state legislature: “Citizen enforcement of laws is always going to be problematic whether it’s for election laws, or campaign finance laws or ethics laws.”
*A previous version of this post stated the Secretary of State’s office had been expecting a lawsuit for longer than the past couple of years. This sentence has been corrected.
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