Judge smacks Gessler in issue committee case

Denver District Court Judge Bruce Jones on Tuesday smacked down Secretary of State Scott Gessler in a topsy-turvy campaign finance trial that saw two government watchdog groups defending the Colorado Constitution against the man sworn as state head of elections to uphold it.

“[Gessler is] deciding he’s going to amend the Constitution. I don’t even think I can do that, and I’m charged with a lot more authority to interpret and apply the constitution than is [Gessler],” Jones said from the bench, according to the Denver Post.

The suit pits the secretary of state’s office against good government nonprofits Colorado Ethics Watch and Common Cause.

Gessler, a longtime opponent of strict campaign finance disclosure rules in his career as a private-practice attorney, sought through a rulemaking to raise issue committee donation reporting thresholds set by voters in 2002 when they passed Amendment 27.

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 as it pertained to an issue committee organized around a municipal election. Gessler’s new reporting rule came in response to that decision. It attempted to shift the registration and reporting threshold for issue committees from $200 to $5000. The rule also would have eliminated the requirement to disclose any information about the first $5,000 of issue committee contributions and expenditures.

Ethics Watch and Common Cause asked the court to throw out Gessler’s “breathtaking” rule, as it would effectively destroy issue committees as a category in the state against the will of the people.

Judge Jones did not rule on the case Tuesday but said he would deliver a decision in the case by Thanksgiving.

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.

“It’s breathtaking,” Ethics Watch Director Luis Toro told the Colorado Independent in September. “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.”

Toro said that, as secretary of state, Gessler had to put aside his view of campaign finance law as posing hurdles to public participation and threats to free speech– or at least put it into a context in which he was still able to defend the law as it appears on the books.

Judge Jones echoed that sentiment Tuesday, telling Gessler attorneys that “the side [they] should be on is defending the constitution.”

Secretary of state spokesperson Rich Coolidge told the Post that Gessler was acting to defend the state against lawsuits. He said the Sampson case, for example, cost the state more than $600,000.

Last month another district judge, Brian Whitney, ruled against Gessler in a high-profile election-law case. Gessler sought an injunction against Denver county– and by extension all counties in Colorado– to stop Clerk Debra Johnson from sending ballots to legally registered voters who failed to cast votes in the 2010 general election. A final ruling on the new interpretation of state election law Gessler proposed in that case is likely to come in the spring. Critics saw Gessler’s rule on ballots and his lawsuit against Denver as attempted vote suppression, along the lines of similar efforts waged by Republican officeholders in states across the nation in advance of the 2012 presidential election.

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