Gessler rule slapped down by judge in campaign finance case

Denver District Court Judge Bruce Jones ruled Thursday (pdf) that Secretary of State Scott Gessler overreached last summer when, through rulemaking, he raised constitutionally established donation disclosure limits for issue committees in the state. Judge Jones signaled during arguments that he believed Gessler had taken it onto himself to amend the Colorado Constitution, an absurd stretch for a non-lawmaking official such as the secretary of state. Gessler said he is determined to appeal the decision. He dismissed Jones’s arguments as mere grandstanding for the press.

“The constitutional definition of an issue committee is based, in part, on a dollar amount,” wrote Jones. “Changing the dollar amount necessarily changes the constitutional definition.”

In his career as an election law and campaign finance attorney, Gessler defended high-profile conservative politics clients and argued against strict donation disclosure rules, which he sees as limiting free speech.

The issue committee donation reporting thresholds Gessler attempted to raise this summer were set by voters in 2002 when they passed Amendment 27.

Issue committees advocate around topics such as abortion or clean water, for example, rather than around candidates for office. Gessler’s rule attempted to shift the registration and reporting threshold for such committees from $200 to $5,000. The rule also would have eliminated the requirement to disclose any information about the first $5,000 of issue committee contributions and expenditures.

Government watchdog nonprofits Colorado Ethics Watch and Colorado Common Cause sued Gessler over the rule, arguing that the voters, prioritizing transparency in their politics, established the contours and requirements of issue committees and that Gessler was only authorized to make rules to best enforce the voters’ will.

Gessler argued the limits were effectively unenforceable, that they placed undue burdens on citizens looking to get involved in politics and that they opened the state up to lawsuits.

“The [judge] just decided he wanted to say nasty things about me in the newspaper,” Gessler told an audience at Colorado Christian University last week. “Frankly, I have never in 10 years of litigation on very controversial issues, never seen a judge behave that way in the entire state of Colorado. I was very surprised by his comments…

“I held a rulemaking hearing, saying I want to raise the threshold to $5,000,” he continued. “Well, what happened is people came in… and said, look, this is why it’s so hard, this is the burden we face…. Now, this particular [judge] didn’t read any of that, so he wasn’t quite prepared, which he admitted, which is unfortunate, but I’m sure the Court of Appeals will be far more prepared than he was, and those comments are just critical for helping me out.”

Ethics Watch Director Luis Toro in a release said he “expected all along that the Court would agree that the Secretary of State has no authority to change disclosure thresholds that were set by Colorado voters in a constitutional amendment. In the event the Secretary chooses to appeal, we are confident this ruling will be upheld.”

Colorado Common Cause Executive Director Elena Nunez said, “Voters have said time and again that they want transparency in political campaigns. We’re pleased that the Court protected Colorado’s strong disclosure laws by rejecting the Secretary of State’s rules.”

[ Image: Scott Gessler ]

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