With so much attention on the gargantuan sums spent on politics this year, it’s easy to forget that core free speech rests on the ability of average individuals to pipe up on their own and make a difference. And yet Colorado’s oppressive campaign-finance laws make that both difficult and risky.
You can’t freely spend (or accept) even a few hundred dollars for yard signs and leaflets in your neighborhood in support of a ballot measure, or combine with friends to do so, without becoming an “issue committee,” according to state law. At which point you will find yourself ensnared in complex registration and reporting requirements, subject to fines and civil penalties, that drive prudent people into the arms of lawyers.
Twice in the past four years — first in 2010 and again three weeks ago — federal judges have warned that Colorado’s law is an affront to the First Amendment for small-scale groups that raise and spend modest amounts of money. It’s high time someone listened to them.
In the first case, which involved residents fighting a municipal annexation, no less an authority than the U.S. 10th Circuit Court of Appeals declared the state had little or no justification for its rules “in light of the small size of the contribution.” More recently, the inimitable Judge John Kane took up the baton with a good deal more gusto in a case involving the Coalition for Secular Government (CSG), a small — very small — “think tank” whose main activity over the years has been to publish papers opposing the proposed “personhood” amendments on the ballot. CSG’s latest anti-personhood paper, Kane thundered in his ruling, “is Tom Paine’s pamphlet. It is the quintessence of political speech.”
Kane wasn’t endorsing the think tank’s point of view. He was merely pointing out that its writers are in the great American tradition blazed by the author of “Common Sense.”
Kane believes “the wholesale invalidation of Colorado’s $200 contribution threshold for ballot issue committees” is warranted, but that he is “without authority” to do it. After all, the federal appeals court, which could have junked the $200 threshold, declined to do so. But that court did indicate that $2,239 in contributions and $1,992 in expenditures were “well below” any reasonable constitutional standard for small committees, presumably so the state could tidy up the mess.
But that hasn’t happened. When Secretary of State Scott Gessler responded to the federal panel’s ruling by hiking the campaign reporting threshold from $200 to $5,000, he was rebuked by a Denver judge for “trying to amend the [Colorado] Constitution.” And the state Supreme Court eventually agreed.
That last decision, earlier this year, was especially unfortunate since a majority of justices said the secretary of state can’t make rules that deviate at all from the $200 threshold. And that means, as Justices Allison Eid and William Hood noted in partial dissents, that small groups will have to litigate every time just to vindicate their First Amendment rights.
No wonder Judge Kane was so livid in his judgment. “Having to adjudicate [this issue] in every instance, as the Colorado Supreme Court implies is necessary, itself offends the First Amendment,” he wrote.
But Kane did offer some consolation. If you’re a small-scale “issue committee” that has to sue to defend your rights, he promised, the state “will be on the hook for [attorney] fees” — that is, when you eventually win.
E-mail Vincent Carroll at vcarroll@denverpost.com.
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