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Federal judge tosses citizen enforcement of Colo. campaign finance laws

Author: Joey Bunch - June 12, 2018 - Updated: June 13, 2018

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Tammy Holland of Strasburg sued after she was accused of a campaign finance violation in 2017. She was represented by the Institute of Justice (Photo courtesy of the Institute of Justice)

A federal court judge put a muzzle on citizen watchdogs of Colorado campaign finance laws Tuesday.

U.S. District Judge Raymond Moore ruled that the state’s procedure for bringing complaints is unconstitutional. Colorado allows anyone in the public to file a complaint that is “automatically forwarded without review for merit to an administrative law judge for review,” according to Secretary of State Wayne William’s office, which was named as a defendant in the lawsuit.

“(T)he Court sees nothing reasonable about outsourcing the enforcement of laws with teeth of monetary penalties to anyone who believes that those laws have been violated,” Moore wrote in his ruling. “What does ‘believes’ mean and how is that a reasonable method to protect the State’s interest in enforcing its campaign finance laws? Moreover, how is it reasonable to encroach upon First Amendment speech by allowing a person to enforce campaign finance regulations when that person may have no experience of campaign finance regulations?”

The procedure was placed in the Colorado Constitution in 2002 when voters passed the Colorado Campaign Finance Initiative.

Williams said the ruling leaves most of the campaign finance law in place, but it strikes down the enforcement method.

“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,” he said in a statement Late Tuesday. “We also will work to address the matter legislatively during the 2019 legislative session.”

Though he was technically the defendant on behalf of the state, Williams has told the legislature he was concerned about the way the law is enforced, his office said Tuesday.

He also helped pass a law to gives candidates a chance to fix campaign reports once the error is discovered. “Before, they racked up major fines even for minor technical violations,” according to Williams’ office.

Peg Perl, a campaign finance policy attorney and candidate for Denver clerk and recorder, who doesn’t have a client involved in the case, said the constitution still requires the Secretary of State to enforce campaign laws, including theoretically imposing fines.

“Colorado’s rules on campaign spending and disclosure were enacted by the voters themselves and must be enforced during this important election year,” she said. “At a minimum, the Secretary of State should use the authority given to the office in the Constitution to enforce Colorado law while appeals are pending in this case.”

The case at issue involved Tammy Holland of Strasburg, who ran two ads in the local I-70 Scout newspaper urging residents to vote in a local school board race in 2015, though she did not endorse any candidate in the ads. She criticized the school district’s Common Core curriculum and the increased standardized testing, however.

Byers School District Superintendent Tom Turrell filed a complaint with the Colorado Secretary of State’s office, saying Holland failed to register as a political committee. Turrell withdrew the complaint, then another school board member continued it. Holland sued in federal court with the help of the libertarian-leaning Institute for Justice.

“Under Colorado law, a single email to the secretary of state can trigger full-blown litigation,” the institute said on its website. “Those who are hit with these lawsuits have no right to a public defender; if they want a lawyer, they have to pay for one out of their own pocket. And with no oversight by any government official to screen out frivolous or legally insufficient complaints — like the complaints filed against Tammy — the system is rife with abuse, with politicians and their allies routinely filing complaints to silence or intimidate those who would dare to criticize them.”

The Institute for Justice created the video below about the issue.

Joey Bunch

Joey Bunch

Joey Bunch is the senior political correspondent for Colorado Politics. He has a 31-year career in journalism, including the last 15 in Colorado. He was part of the Denver Post team that won the Pulitzer Prize in 2013 and is a two-time Pulitzer finalist. His resume includes covering high school sports, the environment, the casino industry and civil rights in the South, as well as a short stint at CNN.