Government watchdog group Colorado Ethics Watch has been engaged in a legal back and forth with Secretary of State Scott Gessler over a campaign finance rule adopted by the Secretary of State last spring. In a brief filed with a Denver District court Wednesday, Ethics Watch argues Gessler is rewriting the law instead of merely setting forth rules directing citizens on how to abide it, and, in a counter claim, Gessler is asking the court to effectively throw out a constitutional provision he has sworn he would defend as an elected official.
Gessler has asked the court to declare the legal definition of an “issue committee” unenforceable, meaning he effectively would do away with issue committees and the financial and reporting laws that apply to them until if and when the legislature would remake them.
“It’s breathtaking,” Ethics Watch Director Luis Toro told the Colorado Independent. “As a representative of the state, [Gessler] would normally be the defendant in such a case… But he’s effectively asking two private organizations to defend the Colorado Constitution from his complaint. How can he sue two organizations that don’t represent the state?
“Gessler would normally be expected to defend the laws defining issue committees… It’s a legal obligation. He has no authority to file a suit against them.”
Gessler is a longtime campaign finance attorney who has battled disclosure rules and donation limits. He sees them as hurdles to public participation and threats to free speech.
In November of last year, the Tenth Circuit Court of Appeals in Sampson v Buescher decided that the burden of the state’s reporting requirement was too high for a group organized around a municipal election. Gessler’s new reporting rule came in response to that decision. It shifts the registration and reporting threshold for issue committees from $200 to $5000. The rule also eliminates the requirement to disclose any information about the first $5,000 of issue committee contributions and expenditures.
Ethics Watch and Common Cause, also a state government watchdog organization, have asked the district judge to throw out Gessler’s “breathtaking” counter claim seeking to effectively explode issue committees as a category in the state and are fighting Gessler’s new issue committee finance rule as an attack on transparency.
The groups cite Amendment 27 passed by voters in 2002 which proscribes campaign finances in the state. It also established disclosure rules, including the $200 threshold for issue committees. The point of the law is to make it easier for citizens to know who is behind public proposals and to know from the beginning. Colorado voters want to know when a chemical company is pushing to roll back clean water regulations and when a labor union is fighting a free-market policy.
“With the passage of Amendment 27, Colorado voters overwhelmingly signaled that they wanted full disclosure in political campaigns,” Elena Nunez, program director of Colorado Common Cause, said in a release. “It is frustrating to see the Secretary of State actively working to undermine the Constitutional provisions he swore to uphold.”
The Gessler counter claim calls to mind complaints leveled at the Obama administration when its justice department announced it would no longer fight lawsuits targeting the Defense of Marriage Act because because it viewed the law as unconstitutional.
“That’s an interesting comparison, actually,” said Toro, meaning he thought it was revealing. “Gessler here is taking it a step further. The Justice Department merley said it would no longer defend the law. That’s different than effectively filing a suit to have it repealed.”
Toro pointed out that when pro-gay groups sued to repeal Amendment 2, a voter-passed initiative of the 1990s that prohibited anti-discrimination ordinances in the state, they sued Governor Roy Romer and representatives of the state defended the anti-gay Amendment even though they personally opposed it.
“That’s our tradition,” Toro said.
“As an elected official, Scott Gessler is expected to put aside his personal views and defend the Colorado Constitution,” Toro said in a release. “Instead, he has ignored our government’s separation of powers by attempting to use his office to not only enforce the law, but also to legislate as well as interpret the law.”
The briefs from Ethics Watch and Common Cause and Gessler’s response and counter claim are available for download here.