COLORADO SPRINGS– GOP candidate for Secretary of State and longtime campaign finance attorney Scott Gessler told the Colorado Independent Saturday that he was shocked by Judge Robert Spencer’s decision Friday requiring Clear the Bench to re-register with the state in order to change its status from an issue committee to a political committee. The re-designation will limit donations. The ruling flies in the face of advice offered to Clear the Bench over months by the Secretary of State’s office.
“That’s just crazy, that ruling,” said Gessler. “What kind of crazy system is that, when you can’t trust what the Secretary of State tells you? [This ruling] means you have to hire a lawyer to do anything– to get involved at all in the political process.”
Gessler had just finished debating Democratic Secretary of State Bernie Buescher at a candidate forum hosted by Action 22, a pro-business political committee representing 22 counties in south east Colorado.
“I talked to Bernie about [the ruling],” Gessler said. “I think he hopes to God I appeal.”
Clear the Bench Director Matt Arnold, a small-government firebrand, has been traveling the state for more than a year asking Coloradans to vote against retaining Justices Michael Bender, Alex Martinez and Nancy Rice. He views the three judges as liberal activists who have used their position on the bench to circumvent the will of the people and weaken the power of the state’s Taxpayer’s Bill of Rights, which requires lawmakers to submit tax raises to a vote of the people.
Gessler lined up reams of evidence and testimony demonstrating that the Secretary of State recommended Arnold register Clear the Bench as an issue committee not as a political committee. As an issue committee, Clear the Bench could accept unlimited campaign contributions. Political committee donations are capped at roughly $500.
Ethics Watch, however, never contested the advice Arnold received by the Secretary of State and didn’t argue really that Arnold should be faulted for taking the advice. The point, according to Ethics Watch was that the advice was wrong. Ethics Watch Director Luis Toro argued that Colorado statute ultimately defines judges as candidates and that Arnold’s drive to unseat them fell into the territory of candidate election more than any issue campaign. Judge Spencer agreed. In his ruling, he levied no fine on Clear the Bench but demanded it change its status.
The battle being waged by Arnold and Clear the Bench in Colorado echoes battles being waged against justices by groups on the right in states across the country.
Iowa Supreme Court justices, for example, who ruled last year to legalize gay marriage there are facing a similarly intense battle for retention. As the New York Times reported yesterday, judicial retention elections like those held in Colorado and Iowa have been designed specifically to depoliticize as much as possible the judiciary. Judges stand for retention only after they have been appointed based on merit to the bench. They don’t try to win votes. Yet efforts to unseat justices based on rulings that are politically controversial but hardly call into question the competence of the judges works to pressure judges, which some experts say goes against the spirit of the system.
“The system was not designed so that people could reject one vote or one case,” said Rachel P. Caufield, a Drake University professor who studies judicial selection. “It was designed so that people could get rid of unfit judges. It was meant as an extreme measure.” She added, “The system has worked well — until now.”
Candidate spending for competitive state supreme court races nationwide increased to more than $200 million over the last decade — more than double the figure for the previous decade — but just $2 million of that was spent in states that used merit selection, according to a recently released report on spending in judicial elections.
Toro said the point of the Ethics Watch complaint was to keep big money out of the judicial elections so that the small proportion of wealthy constituents and special interests could not be seen to taint the judicial system.
“Judges are candidates and they’re subject to corruption,” he said, noting that the ruling establishes clarity and sets precedent, which exactly what the Secretary of State was seeking in sending the case before a judge.