Musgrave-Markey spat raises question: Are campaign lies a crime?

Democrat Betsy Markey (left) and Rep. Marilyn Musgrave stand at their first debate in Fort Collins. (Photo/Jason Kosena)
Democrat Betsy Markey (left) and Rep. Marilyn Musgrave stand at their first debate in Fort Collins. (Photo/Jason Kosena)
In Colorado, recklessly making false statements about candidates who are running for public office is a criminal offense. But, years after the strict sanctions were adopted, no one has gone to jail for knowingly lying about their political enemies — indeed many say that making such a case stick would be nearly impossible.

The most recent high-profile investigation involves Marilyn Musgrave and Besty Markey in the 4th Congressional District. In a stunning upset, Markey beat the incumbent Republican last month; both are still under investigation for making false statements about each other during the campaign.

In September, Markey filed a complaint with the Larimer County District Attorney Larry Abrahamson alleging that Musgrave had broken a state law that prohibits false statements about political candidates. Specifically, Musgrave aired ads falsely accusing Markey of abusing her position as district director for Sen. Ken Salazar to bring no-bid contracts to her personal business.

Musgrave struck back with her own complaint, accusing Markey of running a false ad calling Musgrave a liar who had “voted to let lobbyists wine and dine her.”

This week, Abrahamson said he’s still waiting for the recommendations from a five-member bipartisan panel before deciding whether to pursue criminal charges against either Markey or Musgrave.

Colorado Revised Statutes 1-13-109(2)(a) makes it is a Class 2 misdemeanor for any person to:

“…recklessly make, publish, broadcast, or circulate or cause to be made, published, broadcasted or circulated in any letter, circular, advertisement, or poster or any other communication any false statement designed to affect the vote on any issue submitted to the electors at any election or relating to any candidate for election to public office.”

Recklessly is defined as acting “…in conscious disregard of the truth or falsity of the statement made, published, broadcasted, or circulated.” A Class 2 misdemeanor carries penalties of up to a year in jail and $1,000 in fines.

The law, passed several years ago, was designed to stem the tide of increasingly nasty partisan attacks, says Republican former Senate Majority Leader Norma Anderson, who was one of the sponsors of the bipartisan legislation.

“We probably thought it would slow people down, but it hasn’t,” Anderson says. “It didn’t work and it didn’t slow people down.”

One of the highest-profile cases to come under investigation was in the bitter race in state Senate District 11 where, two years ago Democrat John Morse whomped his Republican opponent, incumbent Ed Jones.

During the race, the 527 Trailhead Group aired radio commercials claiming that Morse, a former police chief in Fountain, Colo., had bungled an attempted murder case, claiming that the man had walked with a slap on the wrist. In fact, the man had been convicted of felony menacing and was sentenced to three years in prison.

After Morse complained, the ads were pulled from the airwaves, and Morse filed a criminal complaint against Trailhead with 5th Judicial District Attorney John Newsome. Months later — in fact after the election — Newsome announced that following an investigation, no charges would be filed.

During the course of the investigation, the attorney for Trailhead, Scott Gessler, claimed that the group, which had been founded by former Gov. Bill Owens, oil magnate Bruce Benson and beer baron Pete Coors, had made an honest mistake.

Furthermore, in a widely-distributed letter, Gessler sought to raise money for a legal defense fund to help the director of the Trailhead Group, Alan Philp, claiming he was being unfairly maligned. Gessler also attempted to paint Newsome, a conservative Republican, as being in bed with Democrat Morse because of their shared history as law enforcement officials — which infuriated both Newsome and Morse.

“These charges are unconstitutional, and I believe the procedures and investigation have been timed to harm [Philp],” Gessler wrote. “Whether you are Republican or not, this should worry you. Political campaigns can get nasty, but one side should not be able to throw the other in jail (or bankrupt him with attorney fees while destroying his reputation). …

“I firmly believe this is a hack job,” Gessler continued. “Not a Republican-Democrat thing, but law enforcement professionals giving one another special “courtesy.”

To which Newsome responded: “It shows a complete lack of understanding as to what my job is and what my oath of office is. I put my hand on the Bible and said I would enforce the law.

“I don’t write the laws; I enforce the laws as written by the Legislature,” Newsome said. “We had a criminal complaint filed, and there is a law that was passed by the Legislature, and signed by the governor. My job is to enforce that law, to see if the elements of the law are met. My job is not to look at the election calendars.”

And from Morse: “As far as this ‘political speech’ thing, well, they lied. Maybe for the Republican Party, it’s political speech, but for the rest of us, sorry, it’s bold-faced lies — and it’s against the law.”

In another high-profile 2006 case, the Trailhead Group, now defunct, went after incumbent Rep. Buffie McFadyen, a Pueblo Democrat, and falsely accused her of engaging in questionable business practices.

Ultimately, Pueblo DA Bill Thiebaut — himself a former Democratic Colorado legislator — found no evidence that the Trailhead Group had knowingly or recklessly made false statements.

“The ads demonstrate the fiercely partisan competition for control of the Colorado House of Representatives revealing the bad political blood that is shed to acquire power, and confirming the adage that political truth can be much stranger than fiction,” Thiebaut wrote. “Inflaming the tenor of political debate certainly makes for high drama, but Jeffersonian faith in the people compels us to debate the major issues of our time openly, honestly and thoroughly.”

This year — just as in every other campaign cycle — foul was cried over negative attacks in numerous races in Colorado. Among those who got slimed were Democrat Evie Hudak, who won her race for state Senate. Democrat Dennis Apuan, a former director of the Pikes Peak Justice and Peace Commission, beat Republican Kit Roupe in his bid for the state House, despite her effort to paint him as a “violent, anti-war, anti-military protester.”

“I think the mailer backfired on her,” Apuan told the Colorado Statesman. “I think people are tired of character assassination and negative campaigning.”

Not all of those attacks resulted in criminal investigations — and indeed, many are not convinced that the law criminalizing false political speech would hold up in the courts, should it ever actually be applied and challenged.

And, notably in most of the races, the attacker — or the group who attacked on behalf of a specific legislative candidate — ultimately lost. John Morse, for example, ultimately crushed Ed Jones by a 20 percent margin. McFadyen prevailed, as did Democrats Hudak and Apuan and Republicans Kevin Priola and Kevin McCaskey, who were all attacked this year.

The ultimate example was the 4th Congressional District race, where Markey upset the incumbent Musgrave by double digits.

As Anderson, the former Senate majority leader, noted, “Marilyn started the accusations, and Marilyn lost big time. And pardon me, but she started the pissing match.

“Bottom line is, be careful what you say; it might come back to bite you,” Anderson says.

State Sen. Morse says he’s still disappointed that the DA opted not to pursue charges against the group that attacked him, noting that a bipartisan panel composed of other district attorneys recommended charges be brought.

“Yet [DA] Newsome still decided not to pursue the case,” Morse says. “He said, ‘I don’t think this law is constitutional.’ Well, my response to that is, that’s not your call — that’s never a reason not to bring a case. He’s not empowered to decide what’s constitutional and what’s not. That’s for the courts to decide.”

Yet the fact the statute hasn’t been invoked when criminal complaints have been filed all over the state is a pretty good indicator of the challenges of making any charges stick, says Mark Grueskin, a Denver lawyer who has worked for numerous Democratic candidates and causes.

“DA’s are in tough positions when put in these situations,” he says. “They have to do investigations but don’t bring cases unless they can win … “

“I don’t think the First Amendment sets a comfort level of free speech,” Grueskin says. “If I were wearing the black robe I would be hard-pressed to find this statute squares up with the First Amendment.”

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