Ethics Watch: SOS staffers gave bad advice to Clear the Bench

Clear the Bench, a group campaigning to replace Colorado Supreme Court Justices, took what looks like bad advice from Secretary of State staffers last spring when it decided to file with the state as an issue committee rather than as a political action committee. The distinction may sound esoteric but it’s exactly the distinction Colorado citizens voted into place in 2004 with Amendment 27 because they believed it could head off the kind of corruption that can swing legal rulings that affect everyday issues– the safety of drinking water, for example, the outlines of labor rights, the frequency of tax hikes.

Matt Arnold, founder of Clear the Bench, said Secretary of State staffers decided that because there were no opposing candidates to the judges his group is targeting– Chief Justice Mary Mullarkey and Justices Michael Bender, Alex Martinez and Nancy Rice– and because the ballot question was simply to retain or not to retain the judges, Clear the Bench should be designated an issue committee not a political action committee. “It was the Secretary of State’s decision,” he said.

But Luis Toro, executive director of Colorado Ethics Watch, says that Clear the Bench simply got bad advice. Ethics Watch filed a complaint last week arguing that Clear the Bench is a political action committee in that it is seeking strictly to replace the judges. There is no issue Clear the Bench is advancing.

“Frankly I’m pretty surprised that the Secretary of State staff members gave Clear the Bench the wrong advice. The state constitution [Amendment 27] is clear that judges standing for office are candidates. I’ve wracked my brain trying to determine how the staffers took this approach. It makes no sense.”

Why not look at past practice?

The main difference in the designations is that individual donations to political action committees are capped at $525. The thinking is that you can not corrupt an issue but you can corrupt a candidate for office. Any one donor giving a ton of money might expect a judge see the law a certain way. Judges might feel pressure to payback big donors in rulings from the bench.

“Clearly there was discussion among the [Secretary of State] staffers on this topic,” said Toro. “The question is Why didn’t they do what we did here? Why didn’t they look at past practice?”

Toro points to the 2006 race around now-retired Court of Appeals Judge Jose Marquez. Committees for and against Marquez filed as political action committees. The designations stood. There were no complaints. It was clearly correct, said Toro.

Larger donations

Arnold sees the Ethics Watch complaint as “spurious” and mere politics. He has written that Ethics Watch is a progressive organzation and feels threatened by the momentum gained by the conservative anti-tax Clear the Bench campaign.

“Ethics Watch is just taking more notice of us now because our movement is growing and as a result we are getting larger donations,” Arnold told the Colorado Independent.

Toro agrees only with the last part.

“There is nothing nefarious about the timing of the complaint,” he said. “We disagreed with the designation from the beginning but there was no cause to file a complaint because only recently did Clear the Bench receive donations over the $525 [political action committee] limit.”

Toro says that recent public filings show Clear the Bench received two donations above the limit and that information is what spurred Ethics Watch to act.

The Clear the Bench matter heads to the bench

The matter is now headed to an administrative law judge. Should the judge rule that the complaint is valid, Clear the Bench will likely be ordered to pay fines. The standard fine is double the amount of any donations that exceeded the $525 limit, but the fines can be as much as five times the donation amount.

Toro says Clear the Bench will have two general options. They can argue that filing as an issue committee was an honest mistake based on demonstrable bad advice, or the group can “double down,” as Toro put it, and fight the ruling should it come back against them. Then however, Clear the Bench could be assessed fines on any donations above $525 going forward and will have sacrificed the good will of the judge.

At this point, a judge finding the Ethics Watch complaint has merit cannot, in effect, correct the filing and declare Clear the Bench a political action committee. Clear the Bench would have to re-file of its own accord.

A ballot disclosure bill presently moving through the legislature, House Bill 10-1370, would grant that re-classifying power to administrative law judges in the future.

“On one thing we certainly agree upon with Clear the Bench,” said Toro: “The question will be decided by an administrative law judge.”

That decision will reportedly be made in the coming weeks.

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