A federal lawsuit is currently challenging Colorado’s unique system under which private citizens enforce campaign finance laws at their own expense in an administrative law court. The suit was filed by the target of one such lawsuit and is being prosecuted with the help of Washington, D.C. based lawyers.
While the suit is being cheered on by opponents of strong regulation of money in politics, those who support such regulation should be concerned about the outsourcing of campaign finance enforcement to the private sector.
In most states that have robust campaign finance laws, a state official or agency such as Montana’s Commissioner of Political Practices or California’s Fair Political Practices Commission is primarily responsible for enforcing laws regarding money in politics.
In Colorado, the Secretary of State has the authority to impose fines for tardy filing by registered committees, but otherwise has only the same ability as anyone else to file a campaign finance complaint and prosecute it before an administrative law judge. The state constitution provides that “any person” may file a campaign finance complaint, but those who file such complaints have no hope of recovering their expenses; all fines imposed in such cases are payable to the government. Only in rare cases where a private citizen or group has to go to court to enforce an administrative ruling can someone who files a campaign finance complaint recover their attorneys’ fees.
Secretary of State Wayne Williams recently repealed a rule that allowed the Secretary of State to file a campaign finance complaint if the office discovered a violation through the ordinary course of operating the state’s money in politics disclosure website, TRACER (Transparency in Contribution and Expenditure Reporting).
As a practical matter, the rule repeal changed nothing; the Secretary of State’s office had not been using its authority to file actions in the private enforcement system anyway. Still, the rule repeal is a step in the wrong direction. In order to prevent alleged abuses of the private-party enforcement system, and in order to make regulation of money in Colorado politics more effective, the Secretary of State can and should do more to encourage compliance with disclosure laws and contribution limits.
Even without changing the state constitution’s private enforcement system, the Secretary of State could take steps to resolve many violations without resorting to the full-blown litigation process. For example, the state’s online reporting system, TRACER, could be modified to flag violations such as contributions in excess of limits or failure to identify employment information for individuals contributing $100 or more to a committee. The Secretary’s office could then send a letter, similar to the letters sent for late filings, to committees making such errors so that they could be corrected without the filing of a private lawsuit.
The Secretary’s office has recently earned just praise for their advances in technology. The office unveiled a text message system to encourage voter registration, and its new Accountability in Colorado Elections (ACE) website makes public data about voting easy to access. There is no reason TRACER can’t meet the same high standards established by these innovations.
Beyond modifications to TRACER, the Secretary could also audit a random sample of committees to make sure that their public filings correspond to what the books show. Under the current system, committees must maintain records regarding their contributions and spending, but are under no obligation to share that information with members of the public who are expected to prove a case for reporting violations in court. Under the current system there is literally no way for a private citizen to know whether a committee’s filed report is fact or fiction.
Colorado’s private enforcement system for violations of money in politics laws is a real problem, but not for the reasons foes of regulation of the flow of money in elections would have the public believe. A more active role for the Secretary of State would alleviate the perceived problems in the current system while helping ensure that the laws Colorado voters enacted are actually followed.
Luis Toro is Executive Director of Colorado Ethics Watch, a nonprofit devoted to strong enforcement of ethics, campaign finance, and government transparency laws.
Photo credit: 401(K) 2012, Creative Commons, Flickr