Amendment 75: Colorado’s ‘millionaire rule’ ballot question could mean more money in state elections

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Voters hear a lot about the influence of money in our elections, everything from how we need to keep the green stuff out of our politics to how critical fundraising is to compete to the role of campaign contributions as a form of free speech.

This week, Coloradans will see a question on their ballots asking whether they want to allow candidates for state office to raise more money than is legal now.

Among the 13 Big Questions voters face is this:

Shall there be an amendment to the Colorado constitution providing that if any candidate in a primary or general election for state office directs more than one million dollars in support of his or her own election, then every candidate for that office in the same election may accept five times the amount of campaign contributions normally allowed?

Call this the “millionaire rule.” Or even the “millionaire-buddy rule.”

Supporters of the proposed new law say its purpose is to level the playing field for candidates who don’t have bottomless personal pocketbooks or don’t have friends and political allies willing to put millions of dollars into a race on their behalf. Critics of the measure argue it will bring more money into Colorado’s elections and won’t act as a useful deterrent to wealthy candidates spending big bucks on their own behalf.

Colorado has relatively low limits on how much individuals can donate to a candidate for office. Right now it’s $1,150. The national median is around $3,800. The amount a candidate can give to his or her own campaign, however, is unlimited because the U.S. Supreme Court has said so.

So if this measure passes, if a candidate directs more than $1 million of his or her own money into a race, then others in that election — including the big-bucks self-funder — will be allowed to raise $5,750 instead of $1,150 from each of their supporters. 

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Greg Brophy, a former Republican lawmaker who has run for governor and helped get this measure on the ballot, says he chose a multiple of five because it puts the number closer to the donation limits for members of Congress, which is $5,400. “There are those on the Libertarian right who say there should be no campaign contribution limit at all,” he says. “So you have to find something that has a chance to pass.”

Wealthy candidates are not uncommon in Colorado elections. In 2016, Jack Graham, a businessman and former Colorado State University athletic director, poured about $2 million of his own money into an unsuccessful U.S. Senate primary. In this year’s GOP primary for governor, businessman and former lawmaker Victor Mitchell put in about $5 million.

On the other side of the aisle, during this year’s Democratic primary for governor, the eventual nominee, Jared Polis, spent roughly $12 million of his own money to help him win. The issue flared up during the final debate among the four candidates when then-candidate Cary Kennedy pointed out how much Polis was spending and how allies of then-candidate Mike Johnston were pouring in millions on his behalf.  Polis, who supports public financing of elections, says he’ll vote for Amendment 75. “On the margins, I think it improves things, but I would be clear it doesn’t really change the fact that it puts too much influence in the hands of the wealthy and powerful,” he has said.

Critics of the status quo say the current landscape is unfair to candidates who can’t roll their own dough into a race, and also that it leads to outside special interests pouring money into an election to help fill a funding gap, sometimes in ways where the source of those funds aren’t known. 

“People don’t want an auction,” Brophy says. “They want an election.”

Peg Perl, a longtime ethics watchdog, former campaign finance lawyer for the Federal Election Commission and a current candidate for Denver County clerk, says she won’t be voting for the measure.

It’s unlikely the proposed amendment would deter a wealthy candidate from putting $1 million into a campaign because the new law would also apply to that candidate, she says. Having such a law, she adds, might even invite a wealthy candidate or a candidate with wealthy friends to pour in $1 million on purpose just so they can raise more money directly.

“It’s kind of a ‘let’s fight big money in politics by bringing more money into politics’ sort of approach,” she says.

Illinois, a state with a law that wipes out contribution limits for candidates once one of them self-funds more than the legal limit there, has seen the effects of such triggering laws. In 2014, the GOP candidate for governor blew the limit and triggered the law. That “set the stage for billionaire hedge fund manager Kenneth Griffin to give $5.5 million directly to the campaign,” wrote the Citizens for Responsible Ethics in Washington. “Rather than protecting the candidates with less self-funding potential, the law empowered the candidate with more.”

Brophy argues wealthy self-funders wouldn’t need to take advantage of the law because they wouldn’t need to fundraise in the first place. 

The Denver Post editorial board came out in favor of the amendment, writing that it closes a loophole in the state’s campaign finance law and while “the amendment isn’t perfect,” its aim is “to ameliorate the inequities in Colorado campaigns that exist between those with the financial means to self-fund a campaign and those without.”

Colorado Common Cause, a group that focuses on the influence of money in politics, is opposing this year’s ballot measure, speaking out against it at forums and organizing an education campaign.

“We’ve worked really hard to establish meaningful contribution limits in order to make sure that Coloradans’ voices are heard in elections — not just the wealthy and special interests,” says the group’s spokeswoman Caroline Fry. “We want to work to further improve our campaign finance system, not walk those limits back.”

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Chris Jackson, a lawyer for Sherman & Howard in Denver who specializes in campaign finance and public law, says he’s not yet sure how he’ll vote on Amendment 75. 

He wonders what might happen if there’s a dispute over whether a candidate really triggered the higher-spending law — for example a candidate could claim they did not direct others to put $1 million into the race — that could lead to lawsuits in the middle of a campaign. He also worries if the law passes and someone sues over the constitutionality of it, Colorado’s new law could become a vehicle for a newly confirmed conservative majority on the U.S. Supreme Court to further extend First Amendment protections in a way that makes it harder to regulate how money is spent in elections.

Bottom line for Jackson: “I don’t think anyone really knows what the effect is going to be or has a good sense of whether it furthers the goal of what reformers want.”

For this measure to pass, 55 percent or more of voters will have to approve it.

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