State Supreme Court declares ‘clean government’ Amendment 54 unconstitutional

In a four to one vote, the Colorado Supreme Court this morning declared that so-called clean elections Amendment 54 unconstitutionally tramped on the right to free speech. The Court barred authorities from enacting its provisions.

“[W]e find the Amendment’s deficiencies so pervasive that we must nullify the Amendment in its entirety,” the 4-1 majority ruled, holding that the ballot measure violated the First Amendment. Justice Nancy Rice wrote the opinion, with Chief Justice Mary Mullarkey and Justices Michael Bender and Gregory Hobbs concurring.

Tom Lucero
Tom Lucero

The 2008 amendment was backed by Jon Caldara’s conservative Independence Institute. The amendment spokesman was conservative Colorado University Regent Tom Lucero, now a Fourth District Congressional candidate. It passed with a slim 51 percent of votes.

Sold to voters as a way to guard against pay-to-play style corruption, where groups doing business with the state support candidates who promise to deliver big money contracts once in office, the amendment also forbid teachers who were members of unions and their family members from donating to campaigns. The wording of the amendment was so clumsily written that many detractors were convinced from the beginning that it was overbroad by design.

“The authors of Amendment 54 tried to silence political speakers they don’t like, but they ran into a little roadblock called the First Amendment and, fortunately for all of us, they have failed,” said Mark Grueskin in a release. Grueskin, an attorney at Isaacson Rosenbaum P.C., represented some of the plaintiffs in the case.

Today’s decision was a strong endorsement of the injunction against the amendment handed down in June by Denver District Court Judge Catherine Lemon. Even the one dissenting opinion expressed on the Court today, that of Justice Alex Martinez, underlined problems with the law. He suggested that the unconstitutional portions of Amendment 54 could be discarded, “leaving behind a meaningful enactment, albeit reduced in scope.”

In June, Lemon said the bill both chilled participation in the political process generally and attempted to outlaw it outright for certain groups.

“It’s not a close case,” said Lemon from the bench after hearing 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.”

Lemon agreed with former Colorado Supreme Court Justice Jean Dubofsky, also an attorney for the plaintiffs, that the amendment sought to drastically fight corruption that didn’t seem to be a problem in Colorado.

Laws in Connecticut and New Jersey, for example, said Dubofsky, limit campaign contributions contractors can make only to officials who can directly influence the terms of contracts. To attempt to do more than that 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.

Dubofsky welcomed the Supreme Court decision today.

“[The decision] overturned an overbroad and unconstitutional law. Amendment 54 would have restricted the political speech of thousands of individual Coloradans and organizations, and we are pleased that the Supreme Court agreed.”

Law Week has posted the Supreme Court’s opinion and dissent online.

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