Secretary of State Bernie Buescher turned down a request filed on the behalf of Clear the Bench Colorado last week to write a new rule categorizing the group as an issue committee. Clear the Bench is presently registered as an issue committee but a complaint filed by government watchdog group Colorado Ethics Watch argued that the group is actually a political committee because it is advocating not for any single issue but rather against retaining Colorado Supreme Court justices. At stake is funding: Issue committees can collect unlimited sums from individual donors; political committee individual donations are capped at roughly $500. Ethics Watch argues that inviting unchecked money into judicial races invites corruption and goes against the will of the voters.
Attorney and Republican candidate for Secretary of State Scott Gessler was listed as a contact for the case, although the request for the emergency rulemaking was brought by former Republican politician Bob Schaffer staffer Mario D. Nicolais, a lawyer at Hackstaff Gessler LLC. The move was made by Nicolais in advance of a Colorado Ethics Watch request for a second or “supplementary” judgment to the dismissed campaign finance violation that would determine the status of Clear the Bench.
“You know the [violation] was removed from the court. The court dismissed it and we, expecting a supplemental hearing, thought guidance from the Secretary of State’s office would go a long way to… verify the issue,” Nicolais told the Colorado Independent. “I am just incredibly disappointed that Secretary of State Buescher chose not to follow up on [the proposed rule change]. He left Clear the Bench dangling in the wind, and it is unfair.”
Richard Coolidge, spokesman for the Secretary of State, had a different view of Buescher’s decision.
“Without getting into a political battle, it’s difficult to see how we left this group ‘dangling’ when the situation hasn’t changed,” Coolidge said. “This office believes the rulemaking on this issue should have the full benefit of a public hearing. Besides, changing the rules during an election that would affect ongoing litigation doesn’t appear to be the appropriate course of action.”
The request asked for the secretary of state to issue a rule that classified any organizations that supports or opposes the retention of Colorado justices and judges to be regulated as an issue committee.
The request also asked for the work of groups like Clear the Bench to be categorized as independent expenditure campaigns, a designation that, due to the recent Citizens United U.S. Supreme Court ruling, would allow for further uncapped funding.
Coolidge explained that the courts might readily revoke any new rule created by the Secretary of State and that the proximity of the November elections, wherein the justices Clear the Bench is targeting might be unseated, would cast any ruling now as suspect.
“The Secretary of State recognizes that there are credible arguments made on both sides of this matter,” Judd Choate, Director of Division of Elections wrote in a letter to Nicolais. “Neither the Fair Campaign Practices Act nor the Colorado Constitution provides guides as to how an Organization like Clear the Bench shall be classified. In the event the law is not clear, it is ultimately left to the judicial branch to decide what a statute or constitutional provision means.”
Clear the Bench initially registered as a political committee but was recommended by Secretary of State staff attorneys and a panel of experts to file as an issues committee because it had not reported specific candidates to oppose but any and all Supreme Court justices up for review. Voters simply vote yes or no on retaining justices.
Colorado Ethics Watch believes that Clear the Bench received a bad recommendation and emphasizes that it was only a recommendation and that the decision made by Clear the Bench to register as an issue committee should be revisited as a matter of precedent, if nothing else.
According to the letter to Buescher filed by Nicolais, Clear the Bench does not deny it expressly works to unseat individual judges but does not consider judges to be electoral candidates.
“I think it is very clear in the plain language of the constitution that judicial retention is not governed as a political committees,” Nicolais said. “Political committees only cover candidates who are seeking nomination or election. The definition of candidate is bifurcated between those who are seeking nomination or election and those who are seeking retention. Political committees only cover those who are seeking our nomination or election not retention.”
Luis Toro, executive director of Colorado Ethics Watch, disagreed. He said that new campaign finance regulations passed by voters “made it clear the people desire justices to be considered candidates for purposes of campaign contributions.”
“Judges are listed as candidates in Amendment 27 for a reason and that reason is that the voters wanted campaign finance to be subject to the same campaign finance rule including contribution limits that apply to other candidate elections,” Toro said. “What this is ultimately about is whether we are going to allow unlimited contributions in elections to get rid of judges,” Toro said.