We are domesticated creatures, most of us. If the government says we can’t get together with a neighbor to spend $200 for yard signs to oppose a local ballot measure without registering first with state bureaucrats and jumping through a series of hoops, we tend to bow politely and say, “Naturally. No problem. And do I need a lawyer, too?”
For years in Colorado, the answer to that question has been, “It might be safer to get one, yes.”
Fortunately, not all of us retreat meekly before attempts to regulate utterly harmless — and indeed constitutionally protected — behavior. Several residents of Parker North in Douglas County, faced with a complaint that they had failed to comply with complex reporting requirements triggered by their spending a few hundred bucks fighting an annexation, fought back. And thanks to their lawsuit and a ruling by the U.S. 10th Circuit Court of Appeals last week, we are all a bit freer today.
The court ruled that Colorado’s laws governing how people raise and spend money on ballot measures are such a burden for small-scale operations — you and your neighbor, say — that they suppress free speech and are therefore unconstitutional. Who wants to wade through Article XXVIII of the Colorado Constitution and the Fair Campaign Practices Act, and then digest 19 pages of rules laid down by the secretary of state, in order to exercise a citizen’s right to fight city hall?
But isn’t disclosure of contributions and expenditures a good thing? Sure it is — in most cases. For example, the identity of those who give money to candidates is important because it helps us appreciate whose interests politicians might favor if elected — and who is likely to have their ear. But concerns about “deterring corruption and its appearance” are “irrelevant” to ballot measures, the court argued, since their impact depends on how they were written, not on who supports or opposes them.
And remember, the court’s ruling is targeted at “issue committees” spending modest amounts, not those dumping fortunes on ballot measures. For the Parker North group, the court said, “the financial burden of state regulation on plaintiffs’ freedom of association approaches or exceeds the value of their financial contributions to their political effort, and the governmental interest in imposing those regulations is minimal, if not nonexistent, in light of the small size of the contributions.”
But look out: The court fails to define how much a ballot-issue committee must raise before reporting requirements should kick in, which means more litigation may be in the offing.
The plaintiffs’ attorney, Steve Simpson of the Washington-based Institute for Justice, told me he opposes disclosure requirements for all groups spending money on ballot measures — a notion that alarms other election-law experts. For example, Denver attorney Doug Friednash argues that “understanding who is spending money supporting or opposing ballot issues is critical” — and not just when millions are spent.
I’m not sure that information is critical, but it can be useful — especially, as Friednash explains, when ballot measures are financed by interest groups with clear and controversial agendas.
Yet the residents of Parker North were no such group. They were average citizens trying to take part in the political process, only to find themselves slammed with an official complaint and subpoena.
And who wants to get involved in local politics when that’s the price of admission?
E-mail Vincent Carroll at vcarroll@denverpost.com.
