Mystery fliers about candidates in elections that don’t say who paid for them will still be allowed in Colorado after a law supporters said would plug a disclosure loophole died on a party-line vote in a GOP-controlled committee.
“They’re exploiting a loophole to keep voters in the dark,” said Democratic Sen. Rachel Zenzinger of Arvada about political groups who pay for anonymous fliers during election season.
She would know.
Last November she found such fliers, glossy negative hit-pieces that didn’t say who was behind them, fluttering around her district. She said if she won her election she would introduce a law to close what she called a loophole that allowed them.
But her bill died 3-2 with Republican Sens. Vicki Marble, Owen Hill and Jerry Sonnenberg voting against it. Zenzinger and Democratic Sen. Lois Court voted in favor.
Debate over the proposed law revolved around philosophical differences among lawmakers who want more disclosure in elections and others who don’t— arguments that have percolated in state legislatures since the U.S. Supreme Court’s Citizens United ruling that opened the floodgates for unlimited corporate, union and nonprofit spending in elections.
Supporters of closing Colorado’s dark-money loophole noted how eight of the nine High Court justices in that ruling were in favor of disclosure in election spending.
Colorado requires people and groups who spend money to influence an election to report their financial activity to the state via an online database. But state law doesn’t require them to say who paid for fliers on the fliers themselves. The bill would have required them to do so.
“The simple idea is any mailer or flier or billboard or advertisement to voters in your district that mentions a candidate in the window at the end of the election cycle must place on the piece what person or entity paid for that ad,” Peg Perl, senior counsel for Colorado Ethics Watch, told lawmakers during Wednesday’s committee hearing.
The bill passed the Democratically controlled House earlier this month.
But the proposed law ran into a buzzsaw in the Republican controlled Senate committee Wednesday when the Secretary of State’s office, run by Republican Wayne Williams who administers elections in Colorado, opposed it.
Deputy Secretary of State Suzanne Staiert told lawmakers she worried the measure was too broad. She wondered if she would have to say who paid for wedding invitations sent out during election season if they mentioned a candidate for office.
Hill, a Colorado Springs Republican, wondered whether reporters who write stories or broadcasts about elections would be subject to so-called electioneering communication under current law or if the new law passed.
No, Staiert said, there is an exemption for media in Colorado.
“How do we define media?” Hill asked. “Is that specifically defined in our laws?”
It is, Staiert said, adding there is also case law about it in Colorado.
Whether to declare who paid for fliers that mention candidates during campaign season flared up during Colorado’s November 2016 legislative elections when mysterious fliers were found in districts with some of the state’s most hotly contested races.
The anonymous glossy fliers lacked the “paid for” disclosures typically seen on election season political leaflets and carried no information at all about who was behind them. It was beyond just dark money, and at the time, political observers called the tactic a new and troubling development in state elections— but not necessarily an illegal one.
And it will remain that way heading into an even larger statewide election in 2018.
Says Perl: “If nothing is done very early next session, expect an explosion during the gubernatorial primaries and general election seasons next year.”
Photo by Neubie for Creative Commons on Flickr.