Passed by 51 percent of Colorado voters last November, Amendment 54 restricted campaign contributions by government contractors and their relatives. The amendment’s conservative backers, including Independence Institute President Jon Caldara, billed it as a move to fight corruption, but opponents argued it targeted labor unions unjustly and that the murky law the amendment created and the harsh penalties it put in place unnecessarily chilled participation in the political process across the board.
“It’s not a close case,” said Lemon from the bench after hearing four hours of closing arguments. “Where First Amendment freedoms are involved, the state has got to [demonstrate] a compelling interest. All we’ve got here is a presumption of corruption and there is no case law to support restricting First Amendment rights based on presumption.”
Lemon further agreed that the amendment unconstitutionally attacked the rights of organized labor in particular.
“It’s obvious from the language of the amendment … that unions have had their rights to participate in the political process completely obliterated and not based on any conduct but simply because of their status as unions, simply because of who they are.”
Speaking to reporters after the ruling, Mark Grueskin, who represented the unions in the suit, exhibited visible relief.
“It’s over,” he said. “Amendment 54 remains a part of the constitution but it will not be enforced. [The amendment] was legal duct tape for certain businesses and nonprofits. Its aim was to tell specific interests to be quiet about politics.”
Lemon will write a formal injunction in the coming weeks. Her ruling will likely be appealed to the Colorado Supreme Court.
Neither of the high-profile supporters of Amendment 54, Caldara and Tom Lucero — who acted as spokesman for the amendment last year and who is now running against U.S. Rep. Betsy Markey in the state’s 4th Congressional District seat — were in court for the ruling.
In arguing against the amendment, Grueskin was accompanied by Doug Friednash and former state Supreme Court Justice Jean Dubofsky.
Dubofsky argued Amendment 54 was unconstitutional because of its overly broad applications. She compared it to laws passed in other states to combat “pay to play” style corruption, demonstrating how those laws remain mostly unchallenged because they possess a more “legitimate sweep.”
Laws in Connecticut and New Jersey, she said, limit campaign contributions contractors can make only to officials who can directly influence the terms of the contract. To attempt to do more than that, she suggested, is mere fishing and opens up all variety of legal complications and questions of enforceability. There must be solid evidence of actual corruption to make such a leap. She said that there simply is no such evidence in Colorado — no evidence of pay-to-play corruption and no evidence even of the appearance of pay-to-play corruption.
Lemon at times seemed intent to draw on Dubofsky’s expertise, asking the former justice to elaborate on this area or that area of case law. She nodded in agreement on many of the points Dubofsky raised and shared in a sense of the legal absurdities the amendment might generate.
At one point Lemon asked Dubofsky whether one of the plaintiffs in the case, Denver Center for the Performing Arts CEO Daniel Ritchie, would be banned from donating money to his own campaign if he were to run for office.
“Well, yes,” said Dubofsky. “It appears so.”
Lemon nodded in agreement and wrinkled her forehead.
Short on specifics
It was on this point that Lemon later extracted the shocking statement from attorneys for the state appointed to defend the amendment that, indeed, from the most basic point of view, the amendment could be seen as illegally infringing rights.
Ritchie could be banned from contributing to his own campaign as well as from encouraging his family members to contribute to his campaign, conceded the attorney.
“In a literal reading of the amendment … yes, forbidding him to contribute to his own campaign is probably unconstitutional.”
The state’s lawyer, Maurie Knaizer, was forced on several occasions to attempt to steer the court away from the actual and often contradictory language of the amendment and toward the alleged intent of the amendment. To that end, he parsed words, suggesting that it might be legal for contractors to “encourage” contributions but illegal for them to “induce” them. He said that what the amendment sought to prevent in banning contributions by contractors to any political candidates at all was “circumvention,” by which he said contractors might influence some officeholders through contact with other officeholders.
But the argument mostly fell apart upon insistence by Lemon on specifics. She asked for examples, even hypothetical examples, that the court might find compelling. These never fully materialized in the discussion.
“I’m not worried about my own confusion,” the judge said in examining one particularly dense sentence included in the amendment. “I’m worried about the confusion among all the people giving money on whom the hammer of this law will come down.”
In comments that came with her ruling, Lemon said she saw no benefit to the state that would come of banning political participation in the form of campaign contributions. The amendment seeks not to limit but to ban participation, which is a step too far, she said, adding that at the heart of the amendment is only the mere conjecture of corruption.
Asked about the state’s case, Greuskin said he thought the “state put on as vigorous a defense as you could make for an amendment written this poorly.”