Gessler Emerges as the Free Speech Secretary of State

The following article by Linn and Ari Armstrong originally was published December 9 by Grand Junction Free Press.

True, Secretary of State Scott Gessler has made some public-relations missteps, as when he attended a Larimer County Republican fundraiser in September to cover campaign-finance fines that Gessler’s office oversaw. On the whole, though, Gessler deserves praise for having the guts to stand up and take heat for what he believes in: the principles of free speech. Indeed, Gessler deserves the national title as the Free Speech Secretary of State.

Gessler has done the best he can to make sense of the contradictory, often-ambiguous mish-mash of Colorado’s campaign finance laws and court rulings about them. His job in that regard is not an easy one: the voter-approved section in Colorado’s Constitution gives him one set of directives, while judges give him another, and he must craft the rules guiding the process.

The problems begin with the campaign-finance laws, which inherently violate rights of free speech. As we wrote back in May, those laws specify that, to speak out for or against any ballot measure while spending over $200, you “must first register with the proper authorities, then report to those authorities the names and addresses of every significant donor to your cause, as well as all of your significant expenses… on penalty of daily fines, and in accordance with a hundred pages of dense legalese.” Obviously those laws undermine free speech and discourage civic participation.

The courts should throw out the entire mess on First Amendment grounds. Instead, last year the 10th Circuit Court ruled that the $200 “trigger” for reporting is unreasonably low. But the court declined to specify a more reasonable amount, leaving Gessler to implement the rules without clear guidance. Gessler reasonably drafted rules setting the “trigger” at $5,000, meaning if you don’t spend that much, you don’t have to file and comply with the paperwork requirements. Gessler did the best he could to protect free speech within the constraints of the campaign laws and the court decision.

But on November 17, Denver District Court Judge Bruce Jones threw outthe $5,000 trigger, recognizing Gessler’s “conundrum” but again declining to offer any clear guidance.

Thankfully, Gessler announced he’d appeal Jones’s ruling. In a news release Gessler described the problem precisely: “Under Judge Jones’ ruling, we have one threshold for $200 and another threshold for ‘some other amount.’ We want to encourage participation in our political process but the ruling today only further confuses an already complex process.” In other words, without a clear “trigger” for reporting, activists have no idea when they have to file or whether they’ll get sued for not filing. Such ambiguity leads to after-the-fact rulings that violate citizens’ rights and undermine the rule of just law.

In a December 15 meeting, Gessler will reassert the need for the $5,000 “trigger” and offer numerous other rule changes as well. The Denver Postsummarized two other major proposed rule changes: limit to 180 the number of days the $50 per day fine accrues, and confirm that groups must “expressly advocate” a candidate or measure in order to fall under the campaign laws. (Rich Coolidge, spokesperson for Gessler’s office, confirmed that those three rule changes will be on the table; those wanting more detail can find the 58-page document on the Secretary of State’s web page.)

Regarding the fine limit, it’s just not fair for hostile, political attack groups to be able to sue somebody long after the fact and keep racking up daily fines.

As for the language about “express advocacy,” our ability to speak out on candidates and issues goes to the heart of the First Amendment. The legal issue is that some groups run ads praising or castigating some candidate or issue without actually suggesting how people should vote. If you tell people how to vote, you use the so-called “magic words” that trigger the campaign laws. Incidentally, the Colorado Supreme Court will hear a caseabout this, though the mere fact that we’re discussing “magic words” illustrates nicely why the campaign laws by their very nature violate free speech.

Unfortunately, Gessler has been been relentlessly attacked by leftist activists who champion censorship of political speech, including Luis Toro of Colorado Ethics Watch and Jenny Flanagan and Elena Nunez of Colorado Common Cause.

The left is obsessed with the idea that, somewhere, someone may spend their own money to advocate their political beliefs. But free speech is central to our liberties, and that right is meaningless without the physical means to advocate our beliefs. Often that requires spending money. Yet many on the left would restrict our political speech in many contexts and open the door wide to more far-reaching forms of censorship.

When Flanagan debated Ari on television earlier this year and Ari brought up the First Amendment, she retorted, “That’s not part of the conversation right now.” Thankfully, Gessler is doing what he can to change that.

Linn Armstrong is a local political activist and firearms instructor with the Grand Valley Training Club. His son, Ari, edits from the Denver area.

Note: See also Diana Hsieh’s detailed summary of the proposed rule changes in a first and second post.

1 thought on “Gessler Emerges as the Free Speech Secretary of State”

  1. Comment by IZen December 14, 2011 12:51 PM

    LOL, You are joking right? Hiding your money trail is not free speech. It’s obfuscation. The voters deserve to know who there candidates will be beholding to if they are elected.

    Comment by Ari December 14, 2011 1:05 PM

    Dear IZen,

    Your brief comments manifest gross ignorance on several points.

    First, the issue at hand is not “hiding” a “money trail,” but rather complying with extremely onerous and time-consuming reporting requirements. These controls chill the speech particularly of small-level activists. Moreover, the campaign laws openly invite vindictive lawsuits against those who speak their minds.

    Second, at issue is primarily the reporting requirements for spending money for or against ballot measures, not candidates.

    Third, the notion that candidates are automatically “beholden” to people who advocate their election is quite wrong. Most often people are motivated in politics by their ideas, not by some financial incentive. If there’s actual proof of vote-buying, then that’s a crime; you ought not restrict the speech of everyone because of the crimes of a tiny few.

    Fourth, if you believe that “voters deserve” to know who is financially backing which campaign, then you are free to request that information, and voters are free to take it into account. Nothing about this justifies violations of free speech.


    Comment by Robert December 14, 2011 10:05 PM

    Gessler’s job is not to directly contradict State statutes he dislikes — the Tenth Circuit did not invite him to pick a reporting threshold! The General Assembly is responsible for modifying the statute you and Gessler oppose, and his party controls the House. Gessler has wasted the People’s money attempting to legislate as Secretary of State, just as he did when he attempted to suppress voter turnout by opining that county clerks should not send ballots to voters — every time Gessler tries to abuse the power of his office, the courts have to stop him, and we all pay the price.

    Comment by Ari December 14, 2011 10:09 PM

    Robert, Your comments are wrong on several counts.

    First, the reporting threshold is established by the state’s constitution, not by the legislature. However, the state’s constitution must conform to the First Amendment of the federal Constitution.

    Second, the state’s constitution explicitly directs the Secretary of State to make rules enacting the campaign laws.

    Third, the Tenth Circuit declared the $200 threshold to be unconstitutional. That’s not an “invitation” to raise the threshold; it’s a mandate.

    Fourth, regarding the ballots, Gessler was complying with the statutes, while a couple of county clerks were violating the statutes.

    In sum, your smears against Gessler are entirely off-base.

    Thanks, -Ari

    Comment by Robert December 14, 2011 11:03 PM

    Let’s start with your third point: the ruling is not itself a command to anyone, but makes it incumbent upon the General Assembly (not the Secretary of State) to amend statute. With regard to the mailing of ballots, the Denver District Court contradicts you (and Gessler); it ruled the mailing of ballots to inactive voters legal, and based on that ruling the Denver and Pueblo County Clerks proceeded. Some of those ballots were voted and duly counted. Gessler can keep fighting against the franchise, but you can’t get away with re-writing the history of last month’s election.

    Comment by Ari December 14, 2011 11:18 PM

    Robert, You are simply not following what is going on here. So please pay attention this time! The $200 threshold is generated by the Colorado Constitution. See specifically Article XXVIII, Section 2(10)(a)(II). The legislature cannot alter that language any more than the Secretary of State can. However, federal courts can and have ruled that the $200 level is unconstitutional on First Amendment grounds. Thus, if Gessler is to follow the law, he must raise the threshold. By insisting that he not raise the threshold, you are asking him to violate the law. Thanks, -Ari

    Comment by Robert December 15, 2011 9:28 AM

    I should not have made reference to statute — the General Assembly can refer an initiative to the ballot however; Gessler certainly has no authority to amend the Constitution! You disregard the decision of the Denver District Court, but it stands.

    Comment Ari December 15, 2011 2:38 PM

    Ah, I see your point, Robert; thank you for the clarification. I believe the Secretary of State has ample legal authority (indeed, a legal obligation) to enact rules surrounding the campaign laws. As for whether the Denver ruling stands, we’ll have to wait for the appeal. (Regardless, the Tenth Circuit in effect set the threshold at “well above” $2,000, and that stands regardless of what Colorado courts say.)

Comments are closed.