Secretary of State Gessler proposes rule requiring less frequent disclosure

Deputy Secretary of State William Hobbs chairs a rulemaking hearing Tuesday (Kersgaard)

At a hearing today, The Colorado Secretary of State’s office proposed a rule change that would result in the need for less frequent reporting of campaign contributions and expenditures.

The change was opposed by Colorado Common Cause, elections attorney Mark Grueskin and Colorado Ethics Watch. No one spoke in favor of the change.

The Secretary of State’s office said the change is being proposed because of the enactment this year of SB 11-189, which moves the date for primary elections in Colorado from August to June.

Under existing state law, candidates must file quarterly reports in non-election years and more frequent reports closer to the election date.

Specifically, current law says that candidates must file every two weeks beginning in the July before the primary. Before SB 11-189, that meant candidates filed biweekly reports for just over a month leading up to the August primary, with less frequent reports before that. Under SB 11-189, which did not change reporting requirements, following existing law would mean that candidates must begin filing biweekly in the July of the year before the primary election, meaning that the biweekly requirement would be in place for nearly a year instead of barely a month as had been the case.

Since quarterly reports had been required in the off-years, the SOS office says under current law, candidates would have to file both quarterly and biweekly reports, which the office said is absurd.

Deputy Secretary of State William Hobbs, who chaired the hearing, agreed that it is up to the Legislature to change or clarify the requirements next year. In the meantime, though, he said the SOS is proposing the new rule be adopted on an emergency basis.

The proposed rule would eliminate biweekly filing altogether, with quarterly reports filed in the year prior to the election, and then monthly reports being filed during election years.

Grueskin, representing Citizens for Integrity, said that would mean a candidate could receive huge amounts of money in the month prior to the primary without having to report it until after the election.

Those opposed to the emergency rule stressed that it is not the Secretary of State’s responsibility to enact rules based on the idea that the Legislature screwed up.

“There is an assumption that the Legislature acts deliberately,” Grueskin said. He said there should be the same assumption when the Legislature chooses not to act.

He said the Secretary of State does not have the luxury of deciding what the Legislature meant to do and then crafting a rule based on what might have been meant. Best to leave the law alone until the Legislature can make itself clear, as needed, in January, he said.

Hobbs said the absurdity of requiring biweekly and quarterly reports could be solved with a much less significant rule change by simply saying biweekly reports will take the place of quarterly reports in the year before an election and will take the place of monthly reports (which are now required) in the months leading up to the election.

Grueskin said the Secretary of State’s office could create a short form report for candidates who have no contributions or expenses to report in any given period.

Grueskin also said the Secretary’s rulemaking ability does not replace existing law, so if the SOS passes a rule that requires less frequent reporting than state law, people would not be able to rely on that rule and could find themselves in violation of the law as a result of following the SOS’s proposed new rule.

Grueskin said he was not arguing that there weren’t things that need fixing as a result of SB 11-189, but said the proposed rule change was going too far and would put candidates at risk.

Reached by phone later, Grueskin said candidates and committees should not have to choose between following the statute and following the Secretary of State’s less stringent rules. He also said he thought the SOS staff involved in the hearing “want to do the right thing. It’s just a question of ‘how do you best get there?'” he said.

In a written statement, Luis Toro, executive director of Colorado Ethics Watch, said, “Just because Secretary of State Gessler thinks that biweekly reporting is too cumbersome doesn’t mean that he can override state statute.”

Similarly, in a written statement submitted at the hearing, Common Cause Director Jenny Rose Flanagan wrote, “Statutory changes are within the Legislature’s authority and their decision not to act must be read as an intent to keep the law as it is, requiring existing disclosure.”

In a separate matter, Colorado Ethics Watch and Common Cause have filed suit against the SOS, claiming that Gessler went too far in another rulemaking matter.

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