State Senator Morgan Carroll, D-Aurora, a strong advocate for campaign-finance transparency, Wednesday penned an open letter to Republican Secretary of State Scott Gessler, asking him to rethink rules he is proposing that would dramatically thin laws governing political issue committee donation disclosure reporting (pdf). Gessler’s office is scheduled to hold a public hearing on the proposed rules today.
“These… rules you propose are designed to allow the cloak of secrecy to remain firmly in place, providing a major loophole which will allow corporations, unions, trade associations and other entities to escape reporting requirements,” Carroll wrote. “These [Colorado campaign finance] laws were passed by both chambers of the General Assembly and signed by the Governor. It is not the prerogative of the Secretary of State to negate these laws.”
The question of how money should be spent and tracked in politics is a top issue of debate across the country, a debate that has grown especially heated in the months since the U.S. Supreme Court in its Citizens United decision ruled that corporations and organizations can effectively spend without limit on election campaigns.
On an ideological level, the issue pits those who believe campaigns must be open about their financial backing so that voters know when special interests– whether oil companies or teachers unions– are seeking to promote candidates or causes versus those who believe spending is a form of expression and that disclosure laws run counter to constitutional free speech guarantees.
Colorado has passed relatively strict campaign finance laws, at the ballot box and at the capitol. The $200 issue committee donation reporting threshold Gessler is attempting to raise to $5000 with was set by voters in 2002 when they passed Amendment 27, and Senator Carroll, for example, sponsored last year’s SB 203, which aimed to firm up state disclosure laws in the wake of the Citizens United decision.
In addition to raising issue committee reporting thresholds, Gessler’s proposed rules would also limit fines on committees that violate disclosure rules, end all reporting on donations for months during the primary election season and loosen rules that separate issue committees, which take positions on matters such as abortion or clean water, from political committees, which promote candidates directly.
Not yet a year into his term, Gessler has proven a remarkably aggressive secretary of state, working at the edge of his authority to not just implement but to recast campaign finance and election law. He has said that the laws are a tangle and so need significant reworking through rulemaking in order to fend off lawsuits and to encourage public participation in politics.
Yet the changes he proposes draw howls and lawsuits from government watchdogs, who see them as inappropriately pushing along the same ideological lines Gessler argued for years as a high-profile conservative-politics attorney, when he represented clients in cases seeking to loosen donation disclosure rules.
Denver district judges have agreed with the watchdogs and have ruled against Gessler’s proposals in a series of trial contests, sometimes rebuking Gessler in harsh language for overreaching his authority.
“[Gessler is] deciding he’s going to amend the Constitution,” Denver District Court Judge Bruce Jones said last month in announcing he had decided against some of the rules being heard today. “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 ruled against Gessler’s attempt to raise donation threshold limits but Gessler has appealed that decision.
In her letter, Carroll references the judge’s remarks.
“The District Court has already admonished you for overstepping your authority, and yet again you are attempting to rewrite the law to benefit those who would distort the electoral process. Rather than follow the direction of the court, you now propose rules that conflict with the plain language of the statute, and reverse legislative intent. Rulemaking should not be an opportunity to overturn the law… I strongly urge you to limit the exercise of your rule-making process to comply with the Colorado Constitution and state statute.”
Carroll said she can’t attend the hearing at the secretary of state’s office Thursday but will be following developments closely.
The full text of her letter:
December 14, 2011
Dear Secretary Gessler:
As you may know I am the author and sponsor of key campaign-finance laws to assure that the citizens of Colorado know the source of funding for campaigns.
These laws provide minimal safeguards against moneyed interests hiding campaign contributions in the wake of the Supreme Court decision in Citizens United allowing unfettered spending to influence elections.
Both chambers of the General Assembly passed these laws, and they were signed by the Governor of the state with the support of both Democrats and Republicans.
Now you want to overrule and negate this legislation. Your proposal is a major change to the existing law, one that is contrary to what voters adopted, and is in excess of what would be required to comply with any later decided cases.
Your rules and conditions to the existing definitions were never contemplated by the Legislature. As an example you add four conditions to the existing definition of “political organization.” See rule 7.2 and CRS section 1–45–103 (14.5).
These, and other rules you propose, are designed to allow the cloak of secrecy to remain firmly in place, providing a major loophole which will allow corporations, unions, trade associations and other entities to escape reporting requirements, even if they are engaged in express advocacy of candidates.
The District Court has already admonished you for overstepping your authority, and yet again you are attempting to rewrite the law to benefit those who would distort the electoral process. Rather than follow the direction of the court, you now propose rules that conflict with the plain language of the statute, and reverse legislative intent. Rulemaking should not be an opportunity to overturn the law.
I strongly urge you to limit the exercise of your rule-making process to comply with the Colorado Constitution and state statute.
Senator Morgan Carroll
Aurora – Senate District 29