Colorado campaign finance loophole allows dark money flyers

Voters in two key state Senate districts recently received flyers praising GOP Sens. Beth Martinez Humenik and Tim Neville for their work in the state legislature on issues such as health care and education.

Nothing on the four-page leaflets, which dropped on doorsteps in June and July, indicates who paid for them. But, because the flyers don’t directly urge people to vote for the two Republicans running in competitive Senate districts, they are legal.

Colorado’s campaign finance law has a loophole that allows printed literature, mailers or other materials about candidates to be distributed without disclosing who paid for them if they don’t include what an elections division manager with the Secretary of State calls “magic words” such as “vote for” or “vote against.”

Colorado was one of only 10 states that didn’t require disclosure of an ad’s sponsor in the 2016 election cycle, according to the Campaign Finance Institute.

That loophole lets outside groups aiming to influence elections do so without coming right out and saying so. It’s a form of dark money that prevents voters from tracing who is behind a campaign message.

“That’s kind of like no-man’s land,” said Caroline Fry, of Colorado Common Cause, a watchdog group that pushes for transparency in elections. “You can distribute a lot of pieces like that without disclosing.”

Martinez Humenik, a Republican from Thornton seeking her second term in the state Senate, said she was surprised to hear about the flyer circulating in support of her record.

“I had one person call me and say ‘I got your ad.’” she said. “And I said, ‘I don’t know what you’re talking about.’ They were describing what it looked like, and I said ‘It’s not from my campaign.’ ”

Martinez Humenik said she doesn’t know who is leaving the flyers on doorsteps in the suburban Senate District 24 district north of Denver where she faces a tough challenge from Democratic state Rep. Faith Winter of Westminster.

Winter said she first learned that campaign literature was being distributed by unnamed funders on behalf of her opponent in the winter. 

“But it started picking up again recently,” she said. “When there’s anonymous pieces you can’t even trace, that’s frustrating.”

Neville, a Littleton resident seeking a second term in Senate District 16, also said he didn’t know where the flyers printed in support of his legislative record came from. In November, he faces Democrat Tammy Story, a Conifer parent who helped lead the 2015 recall of three Jefferson County school board members.

“I haven’t even seen what was dropped,” Neville said. “The way the system is set up now, we don’t have the opportunity to control third party messages or anything else.”

Both his and Martinez Humenik’s races are key to Republicans keeping control of their one-vote majority or to Democrats taking back the Senate in November’s election.

Groups are required to report independent spending that advocates voting for or against a candidate to the Secretary of State’s office 30 days before a primary and 60 days before a general election. A group called Coloradans for Fairness reported spending $2,000 each on digital ads opposing Martinez Humenik and Neville during June. Colorado Resistance reported spending $58.40 on ads opposing Neville in June. Both are independent spending committees.

But there were no disclosures about any flyers supporting the two GOP Senate candidates during that time frame.

Both Martinez Humenik and Neville said they’re going door-to-door with their own literature, which is clearly marked as coming from their campaigns.

Like Winter, her opponent, Martinez Humenik lamented the lack of identifying information on the flyer that was clearly intended to help her reelection bid.

“It always does concern you when you don’t know who’s doing it,” she said. “It would concern me 100 percent more if it were something negative.”

In 2016, The Colorado Independent learned of at least four anonymously-funded campaign flyers distributed on voters’ doorsteps during the weeks before the election. One of those mailers accused a candidate of going on a city trip to China that she didn’t go on and actually made a motion not to use city money on.

But because those mailers didn’t urge people to vote for or against the candidates, who funded them didn’t require disclosure, the Secretary of State’s office said at the time.

A 2017 bill to require disclosure in such instances failed, and so the loophole remains.

Not all outside groups are taking advantage of it.

In Lakewood, for instance, a mailer extolled Democratic state Rep. Brittany Pettersen’s work in the House without mentioning that she’s running against Republican Tony Sanchez for an open state Senate seat. A nonprofit called the Colorado Values Project paid for that piece, according to a return address. But it’s a recently formed nonprofit, so for now it’s impossible to know who exactly is behind the Colorado Values Project. Efforts to reach the group have been unsuccessful, and they won’t be required to file a tax return for about a year.

A flyer mailed to some Aurora residents last week from American Action Network praised Republican U.S. Rep. Mike Coffman for his work to quell the national opioid crisis. It didn’t suggest that people vote for him in his fall contest against Democratic attorney Jason Crow.

Christopher Jackson, a Denver appellate lawyer who specializes in elections and campaign finance, notes that Colorado campaign finance law differs from federal law, which is why American Action Network is required to be identified on the Coffman mailer.

“I can’t think of a case where it would be a good idea not to include your name,” Jackson said. “It looks terrible.”

Melissa Polk, the legal, policy and rulemaking manager for the Secretary of State’s office’s elections division, noted that most groups and candidates do include information about where campaign flyers come from and who footed the bill.

“Several committees do it for transparency purposes or because they think it’s required,” she said.

Fry, of Colorado Common Cause, said her group supported expanded reporting of independent spending to include the entire time between the primary and general election. She said disclosure of who paid for literature should also be required when a candidate is mentioned.

“I think that more disclosure about where the funding behind a political advertisement is coming from the better,” Fry wrote in an email. “Especially as we see more and more money in our elections coming from organizations with ambiguous names or mysterious donors.”

Photo of dark-money flyers distributed on behalf of Martinez Humenik and Neville

 

3 COMMENTS

  1. ALL private money needs to be removed from politics, or we will just keep having what we have now, legalized bribery. We need a system that provides public funds for all candidates in elections, and NO private money is allowed. We must make sure that there are real consequences for actions, like JAIL TIME for accepting or giving money to a candidate. This merely kicking them out of office isn’t NEARLY enough. There need to be real consequences for breaking the law as an elected official, and this would be a good place to start. Until the private money leaves elections, we will continue to get vermin like the congress and administration we have now.

  2. Highlighting several issues with “Dark Money” in campaigns –
    but there’s quite a bit of “not exactly” in this article.

    Most importantly, although the mailers are not required to include a “paid for by” disclaimer on the printed material, the payment for the mailers MUST be disclosed in campaign finance reports, by law.

    Failure to disclose payment for mailers intended to support or oppose candidates – particularly during the “electioneering” window 30 days prior to a primary and 60 days prior to a general election – is a violation of state law, subject to prosecution and penalties.

    Unfortunately, since the current Secretary of State has engineered a takeover of the previously citizen-centric enforcement process, actually finding, prosecuting, and holding violators accountable for breaking the law has become much more difficult and convoluted.

    Colorado voters should factor that into their decision when voting for Secretary of State this November.

  3. I heard the SOS challenger speak last night, and didn’t hear her speak about this issue. It would be useful to voters if the reporter would contact Wayne Williams and Jena Griswold directly, and get statements from them. This year the dark money has been pouring in, and fueling attacks and lies we voters find abhorrent. Of course one purpose of those attack ads is to make voters disgusted enough they decide not to vote. And that’s bad for all of us. Not that many years ago, Republicans championed full disclosure, and they would be wise to do so again..

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