The centerpiece of Colorado’s unique method of outsourcing enforcement of campaign finance laws to private citizens is unconstitutional, a federal judge ruled on Tuesday in a scathing court decision that could drastically change the way the state regulates money in politics.
U.S. District Judge Raymond Moore said a constitutional provision and supporting laws that require individuals to submit and prosecute complaints against politicians and groups they believe have broken campaign finance laws, violates federal Constitutional provisions.
In Colorado, unlike other states, the government doesn’t audit the money-in-politics reports candidates or groups file with the state, nor does it screen complaints brought by individuals if someone accuses a politician or group of abuse. When someone files a complaint, that person must prove the case before an administrative law judge, offering evidence and calling witnesses in what can look and feel like a full-blown trial.
In his ruling this week, Judge Moore asked both sides to file arguments by next week about why a permanent injunction against the enforcement system is necessary— as well as whether Colorado might appeal his ruling and state officials could justify keeping the system in place pending appeal.
Officials in the Secretary of State’s office will review the ruling with lawyers from the Attorney General’s office Thursday and Monday to determine next steps, says spokeswoman Lynn Bartels.
“The court’s ruling leaves in place the substantive requirements of Colorado’s campaign finance law but strikes down the enforcement mechanism,” said Republican Secretary of State Wayne Williams in a statement. “We are considering our options for further review but in the meantime we will work collaboratively with interested parties to adopt temporary rules providing an enforcement mechanism.”
That’s a major blow to an enforcement system critics have blistered as lax and its supporters say saves the state money.
Williams added that his office would also will work with lawmakers on a legislative fix during the next legislative session.
The judge’s decision comes as a primary election nears on June 26 and a midterm general election looms in November. The legislature does not reconvene until January.
Colorado’s novel enforcement system for campaign finance laws was part of the reason the state scored a D+ in a 2015 national report that assessed each state’s risk for corruption.
“On the enforcement side in the Centennial State, it is citizens who must prosecute complaints against public officials whom they believe have acted improperly,” the report, conducted by the Center for Public Integrity, stated. “Citizens must also pay their own way through the court system to prove public wrongdoing while public officials accused of malfeasance can rely on public money for their defense.”
Denver attorney Luis Toro, who worked on several campaign finance cases as the former director of Colorado Ethics Watch, said the court’s ruling this week could have an immediate and major impact on the role of money in politics during a major election season. The ruling, he said, could essentially eliminate enforcement of campaign finance laws altogether.
“Depending on what the court’s final injunction order says, it looks like we may not have any campaign finance enforcement in Colorado for the 2018 election,” Toro told The Colorado Independent. “It will be interesting to see if anybody just stops reporting.”
But Colorado’s deputy Secretary of State Suzanne Staiert says the sky isn’t exactly falling.
She hopes her office will be able to get a legal stay on the ruling to keep the status quo in place, and, if that fails, the office will create rules to put some sort of enforcement mechanism in place. Down the road, the office might, say, appoint a committee to screen complaints before sending them to a judge. And the state might even decide to prosecute complaints instead of having private residents do it.
“We anticipate we’ll still have citizens filing with us and what happens on the back end is really what we need to decide,” she says.
In 2002, voters passed a ballot measure that put Colorado’s campaign finance laws into the state Constitution.
Those laws came under attack in federal court in 2016 after Strasburg resident Tammy Holland took out ads in her local newspaper about an upcoming school board election, and said she’d received money from community members who didn’t want to be named.
A former school board member filed a complaint that claimed Holland should have registered as a political committee and disclosed who paid for the ads. A hearing officer, noting that Holland’s ads didn’t expressly suggest voting for one candidate or another, ruled in her favor in April 2016.
But earlier that year, Holland, supported by the nonprofit Institute for Justice, which calls itself the “national law firm for liberty,” filed a federal suit against the Secretary of State, claiming Colorado’s complaint system violates the U.S. Constitution.
“Under the First Amendment, nobody should have to fear being sued by their political opponents merely for expressing their opinion on the issues that matter most to them,” the institute’s senior attorney said at the time.
This week, Judge Moore agreed. But he also took to task attorneys who represent the Secretary of State.
“At no point does defendant even attempt to explain how the enforcement provisions may satisfy any actual test for determining their constitutionality,” Moore wrote, adding the Secretary of State’s office “has made no attempt to explain what state interest, compelling or otherwise, is advanced by the enforcement provisions.
“As a result, ultimately, because defendant has failed to explain or provide evidence of how the enforcement provisions satisfy strict scrutiny, plaintiff is entitled to summary judgment,” Moore concluded.
But he also wrote that Holland’s attorneys didn’t demonstrate there would be irreparable harm to her or that the public interest would not be harmed if a permanent injunction prevented enforcement of the law.
The Institute for Justice lauded the decision in a news release.
“Although most states allow private individuals to file complaints alleging that someone has violated the campaign-finance laws, Colorado is unique in that it outsourced virtually all of its campaign-finance enforcement to private parties,” the statement said.
Matt Arnold, who runs a company called Campaign Integrity Watchdog, is the most frequent filer of campaign finance complaints in recent years in Colorado. He criticized Williams’ office in an email, saying the ruling was a result of the state’s “abject and utter failure to mount a defense.” Arnold, who is not an attorney, tried to intervene in the Holland suit, but both sides rejected his involvement.
The ruling also drew heat in a different manner from a legal blog by national elections lawyer Rick Hansen, who teaches law at the University of California Irvine. In a blog post, he called the ruling “perhaps the worst-written and reasoned election law opinion I’ve read from a federal court.”
Institute for Justice attorney Sam Gedge says concern about Colorado turning into the Wild West of campaign finance is overstated. He said the overwhelming majority of cases were what the Secretary of State’s office described as “gotcha’ complaints”— about minor reporting errors and other mistakes.
“All yesterday’s decision does is eliminate a system that, again in the words of the Secretary’s office, was used relentlessly for ‘gamesmanship, political posturing, or to abridge speech,’” Gedge says.