Democratic state Sen. Morgan Carroll of Aurora and Rep. Lois Court of Denver say stricter penalties and tighter legal definitions should be at the heart of upcoming legislation to prevent abuses to laws regulating those looking to sway public opinion in elections.
Both legislators are working with watchdog groups to shore up what they see as serious holes in campaign finance and ethics laws after a mid-term election cycle marred by violations and rumors of clandestine deals.
“The [U.S.] Supreme Court has consistently ruled that [donating to campaigns] is a right of free speech for just about anyone, and with the Citizens United case, just about anything … to spend as much money as they want. It has also consistently encouraged disclosure,” Court said. “OK, fine, spend the money. But let’s make sure that you are following the existing laws and tighten laws so that we can know who you are.”
The lawmakers recently told The Colorado Independent (TCI) that ensuring campaign-fiance disclosures was on the top of their list for the legislative session starting this month, with Carroll citing her strong desire that nonprofit groups should have to disclose political donors whose money is used specifically for political purposes. However, both Carroll and Court said that tightening the definitions of campaign ethics terms and finance laws while putting substantial real-time penalties in place for campaign rules violations was all part of that goal.
“We need to look at more consequential penalties for violating campaign finance laws and we need more expedited solutions,” Court said. “If the campaign violation occurs and it is three years down the road that we get a resolution to it, the campaign is done, the decision has been made, and it is a disservice to the voters.”
Outgoing Democratic Secretary of State Bernie Buescher told the Durango Herald in October that he feels fines needed to be increased on groups that repeatedly fail to file campaign-finance reports with the SOS. He also said that a state agency should be allowed to file investigations into campaign finance cases. The office does not currently have that power.
Luis Toro, executive director of Colorado Ethics Watch, agrees. He explains that putting in place stronger penalties and more expedient fine collection methods, part of a long wish list (pdf) of legislative fixes his group is asking for, is necessary to force compliance with the state laws.
Toro says issues committees and political action committees often avoid hefty fines by becoming inactive, dissolving or simply ignoring their fines because no personal liability is attached to the organization. He said one way to fix this problem would be for the legislature to tie liability for fines to the leadership of those committees.
However, Republican Secretary of State-elect Scott Gessler told the Herald that he was opposed to both increasing penalties and allowing the secretary of state’s office to initiate investigations.
On Friday, the Denver Post reported the staff of the secretary of state’s office waived all but $8,475 of $504,500 in fines incurred by one of Gessler’s legal clients, the Colorado Independent Auto Dealers Association, which failed to file reports for several years. During the campaign, Buescher called the failure to report “a serious transgression,” but Gessler said the fine reduction shows it was “a pretty minor matter.”
Gessler, a longtime Republican campaign attorney, also represented a group called that Colorado League of Taxpayers that still has not paid more than $8,000 in fines for improper electioneering during the 2008 Garfield County commissioners race.
Toro also said Colorado needs a legislative fix to create penalties for those who try to influence political candidates. Ethics Watch voiced its concern after unconfirmed allegations surfaced of Republican elites offering possible future job positions to former Republican gubernatorial candidate Dan Maes if he dropped out of the race.
Beyond penalties, however, it appears likely – after voicing concern over recent court rulings — that Sens. Carroll and Court will try to address codifying the single subject definition while strengthening definitions of both political action committees and issues committees.
Both lawmakers pointed to the Colorado Supreme Court case, Sampson V Buescher, in which it ruled that Colorado’s disclosure laws were too onerous for a group of north Parker homeowners opposing a ballot initiative that would have annexed their neighborhood into the city of Parker and impeded their First Amendment right to association. The court made its ruling after hearing the group received less than $1,000 in donations, among other issues.
“That [case] really threatens to put a hole in disclosures on issues committees,” Carroll said.
Carroll and Court say other groups would likely use the ruling to their advantage and it could cause a ripple effect of litigation from initiative proposal groups that charge Colorado campaign finance laws impede First Amendment speech.
“While I know that the ruling says that this only applies to this case,” Court said, “that doesn’t mean that clever folks won’t figure out a way to make it apply otherwise.”
Transparency advocates hope the ruling will not cause a repeat of November’s election, which saw proposed amendments 60 and 61 and propositions 101 and 102 reach voters without the funders for the petitioning process ever being disclosed. Court said she is looking to see what laws, including issues committee rules, need to be tightened to avoid weakening disclosure laws.
Court also said she would look to help the Title Setting Board by legislatively defining Colorado’s single-subject law. And she said she would try to provide clearer definition of what constitutes a political committee after Clear the Bench argued to remain an issues committee in an administrative court hearing. She liked that the court found that it operated more closely to a political committee.
Both legislators continue to speak with advocacy and watchdog groups such as Colorado Common Cause and Ethics Watch. Court said Gessler has scheduled a meeting with her and she expects to speak with Republican state Rep. Carole Murray about campaign finance issues after successfully working with her on ballot reform measures.
Murray said she would “wait to see how it all shakes out and then decide [her] role.”