Secretary of State smacks Clear the Bench

As the head of Clear the Bench Colorado, firebrand Matt Arnold has toured conservative activist events across the state this past year asking Coloradans to vote against retaining members of the state’s supreme court. He argued and is arguing in the last weeks before the November elections that members of the bench are liberal activists who disdain the law. In recent days, an administrative courts judge and the elections director for the state informed Arnold that he failed to follow the laws that govern the form of political activity in which he has been engaging.

(dbking, Flickr)

The latest chapter in the winding legal tale came Wednesday in the form of a letter issued by Judd Choate (pdf), elections division director with the secretary of state, who wrote that Arnold must alter the activity of or terminate his incorrectly registered issue committee, Clear the Bench, and that Arnold can legally transfer none of the money he has collected for Clear the Bench to any new political committee he might file to operate. Choate also informed Arnold that for the entire year Clear the Bench has existed, it has failed to properly file campaign finance reports.

“That letter is a convoluted mess that puts me between a rock and a hrad place,” Arnold told the Colorado Independent. “It would paralyze my operation. It’s impossible to follow the letter of this letter, if you will. We can’t completely start over the week ballots have dropped.”

Arnold says that in fact he believes Choate is angling in the letter, that in its wording and with its stern directives, the letter forces a reading alternative to the harsh orders for compliance. That alternative reading, according to Arnold, is linked to the September ruling issued by Judge Robert Spencer that Clear the Bench violated the law by registering and acting as an issue committee rather than a political committee.

“It seems pretty clear to me that [Choate, acting for] the secretary of state wants to force our hand to accelerate the process of challenging the ruling… [Secretary of State Bernie] Buescher asked [Clear the Bench attorney Scott] Gessler ‘You’re going to challenge it aren’t you?’

“I mean look at the wording of the letter. ‘In the absence of a stay…’ he says. That’s significant.”

In the letter, Choate wrote that “In absence of a stay of the judgment from the Office of Administrative Courts, your issue committee should be terminated promptly or its purpose should be modified to comply with Colorado law… Should you wish to terminate the Clear the Bench issue committee, please note that it must have a zero balance… Clear the Bench issue committee may not contribute its funds to [any] new political committee.”

The secretary of state’s office for months advised Arnold that Clear the Bench should file as an issue committee, although it did acknowledge that the classification in regard to judicial retention was thorny and untested. Government watchdog group Colorado Ethics Watch had been making that case all along and filed suit against Arnold, arguing he was clearly advocating not for any issue but against candidates for office. Ultimately Judge Spencer supported the Ethics Watch reading of the law.

At stake in the case from the beginning is the fact that issue committees can accept unlimited campaign donations. Political committees can accept only up $525. The law seeks to limit opportunities for wealthy donors to influence or corrupt candidates, who might act in the interest of large donors once in office or on the bench.

“This letter would leave me with no resources,” Arnold told the Independent. “I would love to counter the special interests to get ads up on the air. I can’t do that with this letter.”

Arnold must now modify Clear the Bench so that it is no longer advocating to oust the three judges Arnold has targeted for the past year: Michael Bender, Alex Martinez and Nancy Rice. Otherwise, Arnold must shutter his committee and empty its cash reserves.

Choate also wrote that Clear the Bench failed to notify the secretary of state that it was an active committee in the 2010 election despite requests to do so and as a result Clear the Bench has failed to file a year’s worth of roughly bi-weekly finance reports.

Ethics Watch Director Luis Toro said that “the letter from the Director of Elections provides further proof, as if any were necessary, that Clear the Bench did not come clean to the Secretary of State’s office about its intention to oppose specific justices in the 2010 general election. Clear the Bench should immediately comply with state law by filing its delinquent October 4 report and returning any contributions it accepted that exceed the $525 political committee limit.”

Arnold said he didn’t comply with a November 2009 request by the secretary of state’s office to file as an active committee because he believed and was advised to believe that the request didn’t apply to the activity of Clear the Bench, that at the time the justices had not filed as candidates and so he was not directly active in influencing the 2010 election cycle. He said a subsequent request issued in September and also referenced in Choate’s letter was sent to Clear the Bench lawyer Mario Nicolais and that Arnold never received notification.

“What a remarkable series of oversights,” said Toro. “None of that went unnoticed to us. They were asked to file as an active issue committee but we didn’t feel they ever were an issue committee. For us the requests and the lack of compliance was just more evidence that they couldn’t make the case that they were an issue committee.”

Arnold says his legal saga will have a chilling effect on any other citizen looking to get involved in the political process in the state.

“People will look at this and see a guy who did everything right, who played by the rules, and still they changed the rules, at the two-minute warning and then beyond that again. What all this does is it actually expands the influence of big money and entrenched interests. A truly grassroots organization can’t get up and running. Only a union or a big business group has the infrastructure and resources to get involved. That’s why I think this ruling will be overturned. It’s going to be a long process.”

Toro points out that the leagal battle has already had a positive effect. A committee supporting judicial retention in Larimer County, Retain Larimer Judges, terminated its issue committee the week of Judge Spencer’s ruling in September and has refiled as a political committee in exactly the manner Choate spells out in his letter to Arnold.

“That demonstrates we already have more clarity,” said Toro. “. This will effect the future of judicial campaigns. This is what voters asked for with Amendment 27.”

Amendment 27, passed in 2002, which banned direct corporate or union expenditures in Colorado election campaigns.

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