Anonymous fliers are targeting candidates in the suburban battlegrounds of hotly contested Colorado House and Senate races — a tactic political observers say is a new and troubling development in state campaigns, but not necessarily an illegal one.
The fliers lack the “paid for” disclosures typically seen on election season political leaflets and carry no information about who is behind them.
While disclosure is required on campaign material that advocates on behalf of a candidate or ballot issue, campaign finance experts say the fliers skirt the law because they do not specifically urge someone to vote for or against the candidates targeted.
The fliers — glossy professional pieces — do not contain the “magic words” that would mandate disclosure, says Steve Bouey, manager for the campaign finance department at the Secretary of State’s office. Those words include such phrases as “vote for,” or “vote no.” Instead the fliers praise or condemn specific candidates — often without bothering to give sources for the information passed on as fact.
So far,The Colorado Independent has learned about four such fliers, all printed on behalf of Republicans in tight races.
Consider a flier in support of Sen. Laura Woods, a Republican incumbent up for re-election in a suburban swing district covering Arvada and Westminster.
The piece touts Woods for her transparency and commitment to smaller government. But it also makes claims about her opponent, Rachel Zenzinger. And those claims, Zenzinger says, are inaccurate.
The flier states, without a citation, that Zenzinger “voted to take a taxpayer funded trip to China,” a reference to an Arvada sister-city program and to Zenzinger’s time on City Council. But Zenzinger says she never went to China, and she actually made a motion that no city dollars would be used for a trip there.
“Given that I made the motion, that’s the most ridiculous claim there,” she said about the anonymous flier. “You don’t know who is telling you this because they didn’t put their name on it.”
After examining the Woods’ flier, Bouey said he couldn’t provide official legal advice or an opinion about it, but said the flier does not appear to explicitly urge someone to vote for or against a candidate. Such language would meet the definition of an “independent expenditure” by a campaign and must be reported and disclosed. Without it, “no statement would be required,” he said.
Woods says she is not behind the fliers, but is aware they had been popping up in the district. That’s unusual, she said, adding that, in general, it’s a “good idea” to disclose.
“I think 98 percent of the fliers I’ve ever seen come in my mailbox … they have [disclosures] on there,” she told The Independent. Asked how she felt about being supported by an anonymous group or individual, she said only that she understands state law doesn’t require disclosures.
But while technically legal in Colorado, keeping voters in the dark isn’t common practice among groups and campaigns, said Mario Nicolais, an attorney and campaign finance expert who advises candidates and organizations.
“I think the vast majority of organizations and entities that play at a substantial level in Colorado include [disclosures],” he said. “Anyone that I’ve ever advised on campaign finance questions, I’ve always told them it’s not required by law, but I highly recommend it.”
With Republicans holding a one-seat majority in the state Senate, one new Democrat could change the balance of power in the state legislature. The Woods-Zenzinger matchup is perhaps the most closely watched legislative race this year in Colorado and is a big-money tug-of-war for both sides of the political divide. The state GOP has given Woods nearly three times what the party has given other Republicans this year, and liberal mega donors like George Soros and California billionaire environmentalist Tom Steyer have given to the Democrat.
But that money is disclosed in state campaign finance filings. Without disclosure on the anonymous fliers, voters have no idea who is behind them.
“Who is to say that this isn’t coming from some sort of outside group from outside the state who could very well be putting millions of dollars into a race to influence a community, to influence voters with false information,” Zenzinger said.
The Woods-Zenzinger race isn’t the only one where such fliers are fluttering around doorsteps and mailboxes.
In Adams County, anonymous fliers touting Republican teacher Jessica Sandgren have popped up in her race against incumbent Democratic Rep. Joe Salazar, a civil rights attorney. The flier touts Sandgren’s transparency, common sense and integrity, and lists her policy proposals.
Sandgren said she is aware of the fliers, but noted that anything from her own campaign has come with a “paid for by” notation. She said she has not given much thought to who might be dropping anonymous laudatory fliers on her behalf.
Salazar said he’s not surprised dark money has hit his race, but says the way it has is unusual.
“I can’t remember a time when I’ve seen a walk piece or a mail piece not have some type of disclosure of where it comes from,” he said.
Democrats control the Colorado House by three seats, and the Salazar-Sandgren race is another bankrolled by high-profile donors, with Soros and Steyer among Salazar’s backers and Republican leaders supporting Sandgren.
In the Colorado Springs area, a flier praising Republican Rep. Kit Roupe lacks any disclosure as she campaigns against Democrat Tony Exum.
“That’s the system that we live in today,” Exum said about the anonymous fliers. “People don’t have to disclose who they are or what they’re for or who they’re against.”
Roupe didn’t return a phone call or an email.
In the battleground suburbs of Arapahoe County, an anonymous flier in support of Republican Nancy Doty is in circulation. Doty is running for an open Senate seat against Democratic Rep. Daniel Kagan in a race that also could determine control of the Colorado Senate.
“This is the first time in my political life that ads for my opponent have appeared without disclosing any information as to who’s paid for them,” Kagan said. “It’s part of an alarming trend which is eroding our democracy and shows contempt for the voters in our district. They deserve to know who’s behind these ads.”
Doty did not respond to requests to talk about the fliers.
The Doty flier does list a website, NancyDoty.co, that is paid for by The Senate Majority Fund. The SMF is a nonprofit 527 group, a tax-exempt political organization “dedicated exclusively to educating the public about their elected officials & candidates seeking office in the Colorado State Senate,” according to its website.
Some of the other fliers look similar in their production to the Doty flier linked to the Senate Majority Fund. The anonymous Doty flier and anonymous Woods/Zenzinger flier, for instance, both use the same photo of a mountain and similar graphic design work. And those fliers look very much like fliers paid for by the Senate Majority Fund that do come with disclosures, including one on behalf of Woods.
The SMF has raised more than $3 million, according to state campaign finance data. The group is also airing $200,000 in cable and satellite ads to promote Woods and Doty.
A phone message and e-mail to the Senate Majority Fund was not returned.
While fliers like these in Colorado do not have to say who paid for them, that doesn’t give a free pass to whoever is doing the spending.
At some point, the cost of the fliers must be reported in Colorado as what is called electioneering communications, says Luis Toro, director of Colorado Ethics Watch, a nonprofit that keeps tabs on campaign finance issues. But unless someone knows where to look, finding the source will be difficult. Electioneering spending is reported online through a service called TRACER in Colorado, and one would have to dig through pages of records looking for a potential link.
The mysterious fliers this election season in Colorado might have at least one unintended consequence for whoever sent them out.
Zenzinger says that if she is elected she’ll look for ways to expand disclosure requirements and shore up loopholes.
“I think it will be my first law,” she told The Independent.
Photo by r2hox for Creative Commons on Flickr.