Colorado Secretary of State Scott Gessler filed a brief with the attorney general last week supporting an appeal brought by election-politics group Clear the Bench in a campaign finance case. Gessler defended the group as a private attorney in the original case and so his support now as secretary of state is sure to raise more questions about his ability to serve the public without treading across ethical boundaries.
“Last year, the Secretary of State’s office was scrupulously neutral while [the case] proceeded,” wrote Luis Toro, Director of government watchdog Colorado Ethics Watch. “It is inappropriate for the new Secretary of State to change that policy, particularly to benefit his former client.”
It was Ethics Watch that filed the complaint against Clear the Bench last year.
Toro argued at the time that in working to oust state Supreme Court Justices, Clear the Bench was functioning as a political committee, not an issue committee, and so should be subject to tighter contribution limits and disclosure requirements.
Gessler, who was then a partner at Hackstaff-Gessler, the top conservative-politics campaign finance firm in the state, defended Clear the Bench by saying the group was caught in a “Kafkaesque situation” where it was in effect being admonished by the state for following the state’s advice.
Administrative Law Judge Robert Spencer agreed with Toro. It wasn’t Kafkaesque, he said, the burden was on the group’s lawyers, as it is with all political groups, to properly interpret the rules of the game.
Although former Secretary of State Bernie Buescher, a Democrat, took himself out of the proceedings, he had good reason not to withdraw: His office staffers were key players in the drama.
Buescher’s staffers advised Clear the Bench to register as an issue committee but they also cautioned the group to consult with its attorney. That attorney was Gessler, who now appears to be again defending the counsel he gave and that Spencer ruled was no good.
In some circles, the brief Gessler filed on Friday in support of Clear the Bench will serve as evidence that his past work as a high-profile partisan attorney presses on him inordinately in his present work as a public official or, at least, that Gessler is unmoved by arguments that public perception of attempted impartiality on the part of the Secretary of State matters as anything more than formality.
Indeed, in that way, this latest flap points back to arguments made in January, when in his first weeks as secretary of state, it came out Gessler planned to moonlight for Hackstaff while doing the business of the state. Although the plan fell apart under media scrutiny, it suggested a sort of willful dismissal of public concern about the baggage he was bringing with him to the office.
Toro seemed unsurprised by this latest development in his case against Clear the Bench.
“The Secretary of State should not take sides in pending private-party campaign finance litigation, period. The fact that it is to benefit his former client in a case he litigated himself only makes it worse,” he told the Independent.
“[But it] won’t matter because it is crystal clear that Colorado law treats Supreme Court justices up for retention as candidates for election. No amount of effort from the Secretary of State or the Attorney General can change the plain language of the Colorado Constitution.”