Complaint filed against SOS Scott Gessler

Colorado secretary of state Scott Gessler

Colorado Common Cause and Colorado Ethics Watch on Thursday filed a complaint in Denver District Court against Secretary of State Scott Gessler that claims Gessler unlawfully weakened Colorado campaign finance laws through the Secretary of State’s rulemaking process, raising the threshold at which one must register an issue committee from $200 to $5000.

Common Cause
and Ethics Watch claim that Gessler did not have the authority to make the changes,and they have petitioned the court to invalidate the new rule.

Secretary Gessler issued a notice of adoption of Rule 4.27 on May 13 to increase the contribution and expenditure threshold that triggers the requirement for an issue committee to register and file disclosure reports from $200 to $5000.

In addition, the rule eliminates the requirement to disclose any information about the first $5,000 of contributions and expenditures by an issue committee.

“The Secretary is under the mistaken impression that he has authority to rewrite campaign finance laws, not merely make rules to enforce those laws,” said Luis Toro, Executive Director of Colorado Ethics Watch. “Disclosure thresholds are clearly not within the authority of the Secretary of State to change.”

“If allowed to be enforced, this rule would make it even easier for issue committees to get a measure on the ballot while never disclosing who is behind this measure and how they are spending money to influence voters,” said Jenny Flanagan, Executive Director of Colorado Common Cause.

The $200 limit had been set by the Colorado Constitution. Toro said either the Constitution needs to be amended or Gessler needs to live with and enforce the $200 limit.

Toro said that if an issue committee can raise and spend $5000 without having to file as a committee or disclose who its donors are or what it has spent the money on, it would open the door to even larger amounts being raised and spent without being reported.

“What will happen,” he said, “is it will take someone like us to watch all these groups and try to prove they’ve raised or spent $5000 without filing.”

He said it is harder to skirt the law with the lower limit in place. “If Bernie Buescher was still the Secretary of State and if he had done this, we’d be filing the same complaint,” Toro said.

Toro said there has been one court case, Sampson v. Buescher, decided in November 2010, where the court said the $200 limit was too low, but Toro emphasized that the court was ruling only in that case and did not throw out the $200 limit or throw out the law, but only ruled that in one particular case it found the $200 limit to be burdensome.

Gessler’s take on that case was different. He released this statement:

“After spending hundreds of thousands of dollars over the past four years, the state lost on this issue in federal court and paid the opponent’s attorneys fees,” Gessler said. “This latest complaint only adds insult to injury. My goal with the new rule is to help insulate the state from more lawsuits and preserve our limited resources.

“The fact is, if this complaint is successful, the state will be exposed to more lawsuits and we’ll be forced to pay attorney’s fees for each subsequent lawsuit.”

Last year, the Tenth Circuit Court of Appeals found that the existing $200 threshold for issue committee registration and reporting was unconstitutionally low. Thus, without a higher threshold, issue committee reporting may be essentially unenforceable.

Mike Saccone, communications director for the Colorado Attorney General’s office, said his office would review the complaint and discuss it with the Secretary of State’s office before deciding how to proceed.

See the complaint here.

Scot Kersgaard has been managing editor of a political newspaper, editor and co-owner of a ski town newspaper, executive editor of eight high-tech magazines (where he worked with current Apple CEO Tim Cook), deputy press secretary to a U.S. Senator, and an outdoors columnist at the Rocky Mountain News. He has an English degree from the University of Washington. He was awarded a fellowship to study internet journalism at the University of Maryland's Knight Center for Specialized Journalism. He was student body president in college. He spends his free time hiking and skiing.

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