Archive for the Campaign Finance Category

Campaign Finance Rules: Collected Testimony

As I’ve reviewed, Colorado’s Secretary of State Scott Gessler held a meeting December 15 to discuss his office’s rules pertaining to the campaign finance laws.

Gessler’s office has published all the written testimony submitted on the matter.

I’ve also published video of several people who, while overall supportive of Gessler’s proposed rule changes, nevertheless criticize the broader scope of campaign finance controls. Following are the remarks of Diana Hsieh, Paul Hsieh, Matt Arnold, and me.

If you want to get an idea of why I was a bit fired up, check out this video clip of State Senator John Morse:

Morse: Complying with Campaign Laws “Really Does Take a Lawyer”

On December 15, 2011, Colorado State Senator John Morse spoke about the state’s campaign finance laws at a Secretary of State hearing.

He said, “What we were selling there, if you will, was that people will comply with the law, and there won’t be many fines. I think what your experience is showing is that… turns out that complying with all this is complicated, and really does take a lawyer. But that’s the price of the transparency, to be able to have these kinds of reporting things.”

But Senator, if you have to hire a lawyer or risk hefty fines or lawsuits in order to spend resources speaking out for or against any ballot measure or candidate, that’s not free speech.

The proper term for it is censorship.

See also:
Comments Regarding the Secretary of State’s Dec. 15 Campaign Finance Rule Hearing

Reviewing CO’s Campaign Laws

Letter About Speech-Chilling Campaign Laws

Comments Regarding the Secretary of State’s Dec. 15 Campaign Finance Rule Hearing

I submitted the following comments to the Colorado Secretary of State’s office prior to a December 15 meeting regarding campaign finance rules.

Dear Secretary of State Gessler,

Thank you for holding a public hearing regarding the Secretary of State’s rules pertaining to Colorado’s campaign finance laws. Before examining some of the particular proposed rule changes, I want to briefly discuss the nature of the campaign laws and their impacts on me as a political activist.

Censorship means the use of government force to prohibit or restrict speech in any of its varied forms. A governmental agent employs direct censorship by banning a particular work or speaker, as by prohibiting the printing and distribution of a specific book or pamphlet, or by threatening a given individual with sanctions for speaking to others. Other sorts of restrictions and controls may not directly prohibit some manifestation of speech, yet, by imposing onerous burdens on the act of speaking, they constitute an indirect form of censorship. For example, if an onerous tax were placed on books or some particular book or type of book, that would constitute indirect censorship.

Colorado’s campaign finance laws constitute a form of censorship, albeit an indirect form. No, the laws do not outright ban certain types of speech (as the federal McCain-Feingold law attempted to do). Yet they burden the political activist with onerous restrictions and requirements, effectively curtailing the political speech of many individuals. The campaign laws censor political speech no less than if the government taxed individuals who spoke out many hundreds or thousands of dollars. The result is precisely the same.

Before an activist can even begin to speak out for or against any ballot measure or candidate with the intention of spending even small amounts of resources, the activist must learn the rules (broadly defined). The assorted Constitutional provisions, statutes, bureaucratic rules, and surrounding court cases constitute many scores of pages of dense legalese. Even learning whether certain forms of speech fall under these rules requires substantial effort (indeed, people may violate the rules without even knowing they exist); figuring out how to obey those rules requires far greater effort.

I myself have spent many hours reading about the rules, and yet I feel totally incapable of obeying them. To say that the rules are Byzantine frankly insults Byzantium. To invoke Churchill’s words, the campaign laws are “a riddle, wrapped in a mystery, inside an enigma.” To the average busy activist who is not prepared to spend many hours in intense academic-style study of these rules, the campaign rules are practically unintelligible.

For a small-scale project, a political activist easily could spend far more hours navigating the assorted campaign finance rules than the activist actually spends speaking out. By way of comparison, imagine if the government imposed a $40 tax on a $15 book: in both cases, the result is censorship.

True, the Secretary of State’s office holds classes to train people in how to obey the rules, a practice endorsed by Colorado Common Cause. Yet there are serious problems with this.

First, commuting to a class, sitting through the class, and then reviewing one’s notes itself imposes a severe cost in terms of time on political activism.

Second, the mere fact that citizens are asked to sit through a government-run class to retain their ability to speak on political matters itself violates free speech. In many cases, people speak out for or against particular governmental policies enacted by particular politicians or bureaucrats. Asking the citizen activist to sit through a class organized, perhaps, by the activist’s political opponents inherently clashes with that activist’s free speech rights. To illustrate the absurdity of the laws, consider that advocacy for or against candidates for Secretary of State can itself fall under the campaign rules. If an activist opposed the sitting Secretary of State and advocated the election of the opposing candidate, the sitting Secretary of State would be responsible for instructing the activist on how to speak out — and for enforcing the rules against the activist.

Third, even if the Secretary of State’s office makes a good-faith effort to instruct the citizen activist on how to obey the campaign laws, that hardly guarantees that the activist will remain free from vindictive legal actions lodged by opponents. If the Secretary of State’s office offers one interpretation of the law, a judge may offer quite another — as Matt Arnold discovered after getting sued for daring to participate in the political process.

Once the activist learns all the rules, then he or she must register with the government. That fact independently and severely violates the right of free speech. The mere fact of registering with the government to practice free speech, especially given America’s long tradition of First Amendment protections, weights heavily on many citizen activists (myself included).

Then come the reporting requirements and threats of legal suits. The activist must track in great detail contributions and expenses, meeting the complex requirements of the campaign finance laws. An activist who makes even a trivial paperwork error may be subjected to fines and lawsuits lodged by political opponents. Again this imposes a severe cost in terms of time and risk. Notably, these requirements weigh especially heavily on the small-scale, independent activist. Large groups able to hire their own accountants and lawyers can more easily comply with the requirements and absorb possible fines and legal fees.

These burdens of learning the rules, registering with the government, complying with the intricate reporting requirements, and then facing the constant threat of vindictive legal actions lodged by one’s political opponents certainly chill political speech. The number of victims of this sort of censorship can never be precisely calculated, because in many cases the victims simply shut up and say nothing, and we never know what they might have said otherwise.

Colorado’s campaign finance laws have discouraged me from speaking out in certain ways. During the last election cycle, it briefly occurred to me to make up my own flyer regarding candidates and ballot measures, and hand out copies of the flyer in my neighborhood. But, fearing the onerous burdens of the campaign laws, I quickly gave up on this idea; I did not want to become ensnared in the reporting burdens or the threats of legal actions against me by my political opponents.

I did speak out against one ballot measure in my capacity as an activist: Amendment 62. However, I agreed to do this only because Diana Hsieh, who joined me in the effort, agreed to meet all the campaign finance burdens. Absent her efforts, I would not have undertaken the task.

I am already thinking about the possibility of speaking out during the 2012 election cycle. My idea, similar to my previous idea, is to print up a flyer explaining my views on various candidates and ballot measures. But I have no idea whether this sort of speech would even fall under the campaign rules, what “magic words” I might have to avoid, or how I might possibly comply with the campaign rules to make this happen. (Moreover, I have a particular aversion to complying with intricate bureaucratic rules; for the same reason, I pay somebody else to prepare my taxes. Yet I shouldn’t have to pay somebody else to help me comply with bureaucratic rules merely to speak out on political matters.) Notably, I would meet the original $200 reporting threshold merely by printing out 2,000 flyers at the local copy shop. Thus, the fact that I would have to spend many hours investigating the campaign rules, perhaps complying with their intricate burdens, and then facing the risk of getting sued by my political opponents, may well shut me up again in that respect. And that is a violation of my First Amendment right — and it is a right, not a privilege — of free speech.

Now I wish to address some of the details of the Secretary of State’s proposed rule changes. On the whole, I believe the Secretary of State is making a good-faith effort to make the campaign rules as objective, fair, and manageable as possible given the constraints of the overall system. For this Secretary of State Scott Gessler and the employees of his office are to be applauded. (I have no doubt that the enemies of free speech on the left will continue to smear him instead, as they have done relentlessly now for many months.)

The general point is that the state’s constitution requires — not permits, but requires — the Secretary of State to make rules “necessary to administer and enforce” the campaign laws. (Of course, the fact that the Secretary of State needs to issue such rules only further illustrates the inherent ambiguousness of the constitutional provisions on this matter.)

The Reporting Threshold

A December 9 document from the Secretary of State’s Office (“Revised Draft of Proposed Rules Office of the Colorado Secretary of State: Rules Concerning Campaign and Political Finance 8 CCR 1505-6″) proposes (Rule 4): “An issue committee shall not be subject to any of the requirements of Article XXVIII or Article 45 of Title 1, C.R.S., until the issue committee has accepted $5,000 or more in contributions or made expenditures of $5,000 or more during an election cycle.”

This proposed rule is an eminently reasonable response to a federal court ruling on the matter (despite a subsequent nonresponsive and frankly politicized lower court ruling to the contrary).

Article XXVIII, Section 2(10)(a)(II) states that an issue committee is a group that “has accepted or made contributions or expenditures in excess of two hundred dollars to support or oppose any ballot issue or ballot question.”

However, in the case Sampson v. Buescher (December 9, 2010), the Tenth Circuit Court of Appeals reasonably ruled that the $200 threshold is unconstitutionally low based on the First Amendment protections of the federal Constitution. (As modern courts are wont to do, the court issued an unfortunately limited ruling that left in place most of the serious free-speech violations of Colorado’s campaign finance rules.)

The Court noted in footnote 5 that the group in question lodged “$782.02 in inkind contributions reported on July 13, 2006.” Moreover, “cash contributions (made between September 2006 and April 2007) totaled $1,426, of which $1,178.82 went for attorney fees and $247.18 remained in the committee bank account.”

The Court concluded, “[T]he 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. We therefore hold that it was unconstitutional to impose that burden on Plaintiffs. We do not attempt to draw a bright line below which a ballot-issue committee cannot be required to report contributions and expenditures. … We say only that Plaintiffs’ contributions and expenditures are well below the line.”

In other words, the amount of $2,208.02 ($782.02 plus $1,426) is “well below the line” that would be constitutional. Thus, the Secretary of State, to meet his legal obligations, must set a threshold “well above” that amount. The amount of $5,000 fits the bill adequately.

Note that, absent a clear rule from the Secretary of State’s office, activists are left to twist in the political winds. If they spend the wrong amount without reporting, as determined by their political opponents, then they will get sued. The Secretary of State’s office is attempting to prevent precisely the sort of after-the-fact rule-making that constitutes a serious violation of people’s basic rights.

Aggregate Contributions of $20

The Secretary of State’s proposed tenth rule states, “If a contributer gives $20 or more in the aggregate during the reporting period, the contributer must be listed individually on the report, regardless of the amount of each contribution.” The document cites statute 1-45-108(1), which states, “All candidate committees, political committees, issue committees, small donor committees, and political parties shall report to the appropriate officer their contributions received, including the name and address of each person who has contributed twenty dollars or more…” By my reading, the Secretary of State’s proposed rule follows the cited statute. Unfortunately, this creates an important problem: if somebody donates a few dollars to a cause, then forgets and later donates a few more dollars, the total of which surpasses $20, the issue committee could be in violation of the law without even knowing it.

Other Proposed Rules

In the proposed definitions, the Secretary of State seeks to tighten up the meaning of “electioneering communication,” citing the case Federal Election Commission v. Wisconsin Right to Life, Inc. Imposing onerous burdens on the mere mention of a candidate severely violates the right of free speech. The Secretary of State seeks to restrict to “electioneering communications” speech that “is subject to no reasonable interpretation other than an appeal to vote for or against a specific candidate.” That is, unfortunately, still far too vague, but it may be the best the Secretary of State can accomplish within the given framework.

Regarding penalties and wavers, I support the Secretary of State’s efforts to make the waiver rules more objective and to set reasonable limits on the accrual of fines.

Regarding privacy for contributers, I support the Secretary of State’s efforts to allow people who fear for their safety to withhold their personal information from the public record. It’s absolutely ludicrous to publish the names and home addresses of those who contribute funds regarding controversial issues such as abortion, immigration, firearms, gay marriage, etc.

Summary: Colorado’s campaign finance laws inherently and severely violate the right of free speech of citizen activists. While the Secretary of State must issue rules within that framework (taking into account the relevant court rulings), wherever possible the Secretary of State should issue rules that best comport with the First Amendment and the right of free speech. The Secretary of State’s proposed rules do just that.

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 FreeColorado.com from the Denver area.

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

Reviewing CO’s Campaign Laws

Diana Hsieh and I spoke on Colorado’s campaign laws at the December 7 Liberty On the Rocks in Denver.

I addressed the general problems with those laws. I remarked, “Colorado citizens with few to no [slight] resources are being dragged into court for daring to speak their minds, for daring to be active in the political process, for daring to stand up and fight for a better country. And I think this is shameful: I think it’s shameful that Colorado citizens are being dragged into court for daring to exercise their right of free speech.”

Diana reviewed her experiences complying with the speech-chilling laws. Then she explains Secretary of State Scott Gessler’s proposed rule changes and offers support for them.

Letter About Speech-Chilling Campaign Laws

The June 16 Denver Post published my letter about Colorado’s speech-chilling campaign laws. The same page includes the contrary view of Jenny Flanagan from Colorado Common Cause.

Re: “Minor players, major burden,” June 15 editorial.

Thank you for your editorial supporting the secretary of state’s rule exempting small issue groups from complying with onerous campaign laws. As the 10th Circuit Court of Appeals found, and as I have personally experienced, the previous rules violate people’s rights of free speech and association.

Under those rules, to speak out for or against any ballot measure spending more than $200, one must first register with the state, learn 100 pages of dense legalese, comply with difficult reporting requirements, and then still risk getting sued by the likes of Colorado Ethics Watch. This chills speech.

Moreover, the right of free speech entails the right to speak anonymously — a right many of our nation’s Founders invoked in debating the Constitution. Consider such heated issues as abortion, immigration, gay rights, and guns. Voters have every right to ask for disclosure, but not to force it, and to vote accordingly.

Ari Armstrong, Westminster

Unfortunately, two anti-free speech groups, Colorado Common Cause and Colorado Ethics Watch, have sued Gessler over the rule change. Read the reports from the Denver Post and Colorado Independent.

In related news, see Nat Hentoff’s excellent remarks about anonymous speech.

Read more about this issue.

Public’s Alleged “Right to Know” Should Not Trump Free Speech

The Colorado Springs Gazette published my latest op-ed on Colorado’s campaign laws. In this piece, I address the question of whether the public’s alleged “right to know” the financial details of political advocacy can justify the violation of the individual right of free speech. Obviously I argue it cannot.

Colorado’s campaign laws violate free speech in two different ways, I review in the piece. First, they force the citizen activist to jump through bureaucratic hoops, and suffer possible law suits, in order to run a funded campaign for or against any ballot measure. Second, the campaign laws outlaw anonymous speech regarding such campaigns.

I therefore conclude, “The fact that the public’s alleged ‘right to know’ clashes with the fundamental human right of free speech indicates that there simply is no public ‘right to know’ regarding details about private citizens. It is only a legal entitlement masquerading as a right.” People do have the right to disclose their financial details if they wish and to evaluate campaigns based on disclosures.

On May 13, the Secretary of State’s office announced that it had adopted the rule change discussed in the piece, raising the “trigger” amount for issue-group reporting from $200 to $5,000.

Please read the entire piece for details. See also the Grand Junction Free Press article by my dad and me that examines the same issue from another angle.

March 24, 2014 Update: I’ve added the complete text of the Gazette op-ed below.

Public’s ‘right to know’ can clash with right to free speech
Ari Armstrong • Updated: May 13, 2011 at 12:00 am • Published: May 13, 2011

According to the principle of free speech embodied in the First Amendment, people have the right to speak their minds on the issues important to them, free from government interference. They have the right to finance the propagation of their beliefs and to coordinate with others to speak.

According to Jenny Flanagan of Colorado Common Cause, the public has a “right to know” the financial details of those who fight funded campaigns for or against ballot measures. However, the laws required to establish this alleged public “right” necessarily violate the free speech rights of individuals.

The state’s campaign laws, approved by voters in 2002 and enshrined in Article XXVIII of Colorado’s Constitution, impose burdensome reporting requirements that especially harm small citizen groups.

If you wish to devote even a small budget to speaking out on a ballot measure, you must register with the government and report your finances as an “issue committee.”

To do this, you must work your way through 100 pages of dense legalese compiled by the Secretary of State. Then, you must obey complex and time-consuming reporting requirements, tracking in exhaustive detail your donors and expenses. If you make a minor paperwork error, you face fines of $50 per day per violation, though you might be able to beg the Secretary of State’s office to waive your fines.

Even if you get through all that, an attack lawyer can still sue you under the laws for any error, however trivial, real or concocted. Just ask Matt Arnold of Clear the Bench, who was sued under the campaign laws even after he followed the advice of the (former) Secretary of State. These burdens especially discourage small citizen groups from getting involved in the political process.

Thankfully, following a court decision last November siding with a small citizen group near Parker, current Secretary of State Scott Gessler proposed a rule raising the “trigger” amount for reporting from $200 to $5,000. At least the change would free smaller groups from the onerous burdens — though not necessarily from the threat of harassing lawsuits.

The campaign laws also outlaw anonymous speech pertaining to funded efforts for or against any ballot measure. Yet the right of free speech entails the right to speak anonymously.

Anonymous speech enjoys a long and noble tradition in the United States. The Federalist Papers, the most important documents defending the Constitution, originally were published anonymously. So was Thomas Paine’s Common Sense.

A person might wish to support a cause anonymously to avoid possible legal, political, or criminal retribution. Issues involving abortion, guns, gay marriage, and immigration often provoke heated passions and sometimes worse. Yet Colorado’s campaign laws can require financial supporters of ballot campaigns to report their personal addresses as well as the addresses of their employers.

An anonymous supporter might also simply wish to encourage debate about the issues rather than his personality. As John Adams wrote, regardless of an anonymous speaker’s motives, “so far as the truth of facts and the weight of argument are in his favor, he ought to be duly regarded.”

A person has the right to choose how to speak, as well as what to speak about. Granting the public a “right to know” the financial details in question grants to some the ability to use government force to stop others from speaking in politically disapproved ways.

The fact that the public’s alleged “right to know” clashes with the fundamental human right of free speech indicates that there simply is no public “right to know” regarding details about private citizens. It is only a legal entitlement masquerading as a right.

People do have every right to ignore messages they distrust. They can vote against a measure whose backers do not disclose their donors.

Opponents can raise questions about campaigns with secret donors. Last year, the secrecy surrounding measures 60, 61, and 101 made many voters suspicious. Moreover, donors themselves can agree to give only to causes that voluntarily disclose.

People have a right to disclose their own financial contributions to political causes, if they wish. And voters have a right to request such disclosures. But such disclosures cannot be mandated by law without infringing others’ rights of free speech, and that’s why Colorado’s campaign finance laws should be repealed.

Ari Armstrong has written about a wide range of issues, including education, taxes, self-defense, and drug policy. His website is http://www.ariarmstrong.com.

Colorado’s Campaign Laws Throw Common Sense Out the Window

The following article by Linn and Ari Armtrong originally was published May 13 by Grand Junction Free Press.

It is December of 1787. You hold an intense interest in a revolutionary document, the proposed Constitution for the United States. Will you speak out, or will you remain silent?

Maybe you could write out your thoughts and print them in a pamphlet to distribute in your town. Pamphlets, signed and unsigned, for decades played a crucial role in American political discourse; eventually they would fill such books as Pamphlets of the American Revolution. Or you could rent out a room to hold a meeting. You contemplate the opportunities.

Your friend just returned from Pennsylvania, where he witnessed an attack on James Wilson, a key drafter of the Constitution. Eventually this story would become part of the tapestry of Catherine Drinker Bowen’s book Miracle at Philadelphia. These are tense times. Should you speak out anonymously?

You have heard the debate over the missing Bill of Rights. Would the new federal government protect such cherished liberties as freedom of speech? In just a few years such concerns would give rise to the First Amendment, guaranteeing that “Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble…”

Now imagine, if you can, the impossible absurdity of some bureaucrat standing up to proclaim, “Anyone wishing to speak out on the proposed Constitution 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, as defined by said authorities, on penalty of daily fines, and in accordance with a hundred pages of dense legalese. To assist you with this process, the government will run classes instructing you on the proper way to speak your minds.”

Can you imagine how Sam Adams, or John Hancock, or the then-anonymous writers of the Federalist essays, or any of the founders would react to such a demand? The Federalists and Anti-Federalists would momentarily forget their dispute in joint outrage. If he were exceptionally lucky, all that would happen to such a bureaucrat is that he would be tarred and feathered and then run out of town on a rail.

And yet those controls on speech describe the burdens Coloradans now face if they wish to speak out on any ballot measure. And we did this to ourselves. Or, rather, a tyrannical majority, stirred to passion by anti-liberty activists, did it to the minority. In 2002 voters approved Amendment 27, now Article XXVIII of the state constitution, to impose campaign censorship.

For censorship is precisely what the campaign laws accomplish. As several activists told the Secretary of State earlier this month in written and oral comments, the laws in fact prevent some people from speaking out, or speaking out as much, because of the onerous requirements. (To listen to Ari’s testimony and other comments, see FreeColorado.com.)

At least the Tenth Circuit Court of Appeals recently ruled in favor of a small activist group that got sued under the campaign laws. Because of this ruling, Secretary of State Scott Gessler, who expressed grave concerns about the chilling effect of the campaign laws on free speech, proposed a rule raising the “trigger” spending level for filing as an issue group from $200 to $5,000.

Consider a few of the campaign laws’ legion absurdities. If you run a newspaper, you are not subject to the rules. If you print up pamphlets, you are. What if you start up something which to you seems like a newspaper, but which to your political opponents seems like political campaigning? Then you get sued.

If you speak out directly on a ballot measure, you are subject to the rules. If you “educate” the public only about the underlying issues, you are not. At the Secretary of State’s meeting, Matt Arnold of Clear the Bench testified to the absurdity of an issue group getting sued by an attack group not subject to the same requirements. Arnold should know: he himself was sued by the laughably named “Colorado Ethics Watch.”

On February 14, 1776, an anonymous author put the lie to the left’s paranoia about financial influence. He wrote, “Who the author of this production is, is wholly unnecessary to the Public, as the object for attention is the doctrine itself, not the man. Yet it may not be unnecessary to say, that he is unconnected with any party, and under no sort of influence public or private, but the influence of reason and principle.”

Today we know the author to be Thomas Paine. The work is Common Sense. He merely stated his authenticity, and proved it only through the cogency of his arguments, which he presumed individuals intelligent enough to grasp and independently evaluate.

Yet Colorado’s campaign laws throw Common Sense out the window.

Arnold Testifies on Campaign Laws

Matt Arnold of Clear the Bench Colorado was sued under Colorado’s campaign laws — even after he sought out guidance from the Secretary of State’s office.

Arnold makes the shocking, but I think correct, statement, “Under Colorado’s campaign finance rules and regulations, the 1960 civil rights movement could not have existed. They would have had to file all sorts of reports, disclosures, identifying individuals who are supporting them. Those individuals certainly would have been subject to retribution, either physically, or financially, or both.”

CO Campaign Laws Chill Speech

Diana Hsieh, who fought the anti-abortion “Personhood” ballot measures in 2008 and 2010, had to endure the onerous reporting requirements of Colorado’s campaign laws — just so she could spend a few hundred dollars (in 2008) and nearly $3,000 (in 2010).

As she testified at a May 3 meeting held by the Secretary of State, the campaign laws nearly made her give up her cause, and they reduced the amount of speaking she could do. Not only did conforming to the laws eat away at her valuable activism time, but they discouraged her from raising more money to reach more voters with her message. Moreover, the laws put citizen activists at risk of getting sued by opportunistic attack groups. (Note: I worked with Diana on these projects, and in 2010 we each earned money from donors for our work.)

I testified at the same meeting that the campaign laws have prevented me from pursuing certain activist ideas, thereby violating my right of free speech.

See also:

Why Colorado’s Campaign Laws Constitute Censorship, a video with more testimony from the May 3 meeting

SOS Looks to Mitigate Burden of Campaign Censorship Laws, my written comments

Diana’s written comments

Why Colorado’s Campaign Laws Constitute Censorship

In the above video, I argue that Colorado’s campaign laws constitute censorship, drawing on a May 3 meeting held by the Colorado Secretary of State. See my May 2 post for more background about the meeting. Following is the transcript of the video.

[From the May 3 meeting:] I say that these rules constitute censorship. Flat-out censorship. It’s not the sort of censorship where you’re just arresting people for making certain statements; but it’s a sort of softer censorship if you will, where the amount of barriers and burdens [are] put into place, pile after pile, one straw after another on the activist’s back. Eventually a lot of people just give up, and say, “I’m not going to put myself in a situation where I might have to deal with these onerous burdens.

[Narration recorded May 4:] I’m Ari Armstrong of Free Colorado.

On May 3, 2011, I attended a meeting held by the Colorado Secretary of State on issue-group reporting rules. I want to draw on that meeting to make my case that Colorado’s campaign laws constitute censorship.

The first question is whether an ordinary citizen activist can reasonably expect to understand the intricacies of the campaign laws. The answer is no.

Consider an exchange between Jenny Flanagan, Executive Director of Colorado Common Cause, a lead proponent of the campaign laws, and William Hobbs of the Secretary of State’s office. The discussion pertains to a proposed rule change.

Neither Flanagan nor Hobbs seems entirely sure of the law’s implications.

[Jenny Flanagan] My name is Jenny Flanagan, I’m the Executive Director of Colorado Common Cause. … We have a long history working on campaign finance reform, and we were one of the lead proponents of Amendment 27, now Article 28 of the [Colorado] Constitution. … One of my questions, and hopefully you all can clarify for me, this is 4.27 sub (a) which says that “expenditures made prior to reaching the $5,000 threshold are not required to be reported.” That’s the kind of secret donation that I’m talking about.

[William Hobbs] So right now, up to $200 is a secret donation, not disclosed, and now it would be…

[Flanagan] I’m not sure. And you can clarify, but is it such that once you reach $200 that it is only after the $200 that is required to be disclosed? Or do we treat all donations that are required as subject to disclosure? That was my understanding, so I guess you can clarify that if I’m wrong there.

In fairness, Hobbes seems to have been addressing a hypothetical case, and Flanagan’s understanding was correct.

I called the Secretary of State’s office May 4 for clarification, and Deputy Public Information Officer Andrew Cole said “it is your responsibility to report everything” once you hit the spending trigger as an issue group.

Still, Flanagan and Hobbs are representatives of the groups that wrote the law and enforce it, and the fact that they seem to have trouble recalling the law’s provisions is not very encouraging for the regular citizen activist.

To give you an idea of what citizen activists face before they can even start forming an issue group, I printed out the Secretary of State’s “Colorado Campaign and Political Finance Manual.”

The entire document is 100 pages long, of which the first 36 consist of the Secretary of State’s explanations and references. [See that documentonline.]

But mastering those pages [the first 36] is not good enough. The document warns: “REMEMBER: You must read Article XXVIII of the Colorado Constitution; Colorado Revised Statute (C.R.S.) Title 1, Article 45 and the accompanying Rules Concerning Campaign and Political Finance to fully understand Colorado Campaign and Political Finance procedures and requirements.”

Article XXVIII of the Colorado Constitution takes up another 11 pages of the manual that I just showed you. And this is dense, legalistic language. In fact, that article is by itself longer than the entire original U.S. Constitution.

Title 1, Article 45 of the Colorado Revised Statutes takes up another 29 pages of the manual.

Then the Secretary of State’s “Rules Concerning Campaign and Political Finance” take up another 22 pages.

The relevant state and federal court decisions further controlling these matters are not even included, and I have no idea how many additional pages they take up if you were to print them out.

Once you master 100 pages of dense legalese, then the real fun begins, because then you get to actually start filing your expenses and contributions as an issue committee. So how does that work out?

My friend and former collaborator Diana Hsieh [see the paper we coauthored] said the following about her experiences in 2008 and then in 2010:

[Diana Hsieh] So I went and I searched online; [it] took me about two hours to find the information even once I knew it was there somewhere. [I] had to go read the law, it was completely incomprehensible, I had no idea what I was supposed to do. But I ended up registering, I ended up filling out the forms. It was like $300 or $250 that I spent, somewhere just slightly above the $200 range [that triggered mandatory reporting]. And wow that was such a huge pain. Because having to fill out — I mean, here I spent $21 at Staples, and having to get out the receipt, put in the address of Staples, like really, does anybody need to know where I bought my envelopes? …

[Then in 2010:] And all of a sudden it struck me, and I really think I was kind of blocking it out, “Oh my gosh, I’ve got all these campaign finance regulations.” Because before I didn’t have donors, and so it just didn’t occur to me, I’m going to have to report all these people who are supporting me. This was not a happy thought. And I did actually seriously consider for a time simply scrapping the whole project. … I was worried for a couple reasons. One, I just didn’t want to go through the burdens of reporting. I thought that was — I just didn’t want to do it. The other reasons I didn’t want to do it was, I thought it was invading the privacy of my donors. [The project in question defended the right to get an abortion, and in a segment not included Diana noted that abortion-rights activists might be subject to violence.] …

I think that I underestimated how difficult it would be to be filing all of these reports this time. Because it had been a pretty simple process, although very frustrating, it had been a pretty simple process last time [in 2008], I didn’t realize what it would be like to have rolling contributions and rolling expenditures in and out, and how difficult that would be.

So let me just tell you a little bit about how that process worked. First of all I had to spend hours filling out and faxing paperwork to open up a bank account, which I didn’t need otherwise. Also to open up a PayPal account so I could have purely separate finances from my own LLC. Then once contributers began to pay their pledges, I had to compile and submit these reports every two weeks. And notice the deadlines for these reports; I just looked this up today just to be sure. But the period would end, and you would have two to three business days in which to gather up all this data and submit it.

Now, for the first report actually, I completely forgot about it, because I had a septic line backup in the house, and I was traveling to the east coast, and basically my life was a complete disaster at the moment. And I was obliged to file this report, and it just completely slipped my mind. And then when I realized it, like “ohmygosh,” I was in this massive panic. “Am I going to have to start paying these $50 a day, per violation fines?” And I wrote in this contrite note of, “Please, look, I had all these horrible things, don’t fine me, please please please.” Because all of a sudden all my payment for the writing that I had done could just evaporate in these fines. And I just didn’t know, what would the reaction of the Secretary of State’s office be? [Diana was not fined.] …

I ended up having to keep two sets of books, because I would track who paid my pledges in my pledge software, I keep track of my finances in Quicken, but you guys required a different kind of timing. And so I had to keep… a second set of books in Excel just to make sure that I could keep track of things. But of course you input the data, and nothing ever works out the first time around, it’s like reconciling your bank accounts. And so you have to go through everything two or three times. So every report that was filed every two or three weeks was two or three hours of checking and double checking and fixing, and trying to find people’s addresses. And at one point, at 11:30 at night before the deadline, panicking for me to try to find a physical address for Facebook, you know they just don’t give out that information all that easily.

So it was just this massive pain. I could have spent that time working on the issue, I could have been writing op-eds, heck I could have been watching a movie with my husband, which would have been much more pleasant, much more enjoyable.

And of course, as I mentioned, every time I filed one of these reports, I was petrified of making a mistake. Those $50 per day per violation fines — you know, I don’t have thousands of dollars that are just sitting in my bank account for this project. That would have eaten into the money that I had earned writing the paper. And that was really horrifying to me.

So basically what happened was, once again, having to file all these reports simply discouraged me from raising more money and spending more money. I mean, I could have asked people, “Hey look, I’d like to do more Facebook ads, would you be willing to contribute to that?” No thank you. It just was not worth getting in that twenty-five bucks, having to go through the effort of reporting that, in order to spend more money.

So I can’t give you any numbers. I can’t say, “1,200 people would have spoken out on the ballot measure if we didn’t have these campaign finance regulations.” But I can tell you firsthand, from these two experiences, the chilling effect that these regulations had on my speech.

So what does Colorado Common Cause Suggest?

[Flanagan] Yeah, I heard the testimony, and again I think holding classes, or doing other kinds of education outreach, so that citizens can have the tools necessary to meet the requirements, is a way to address that concern.

“Holding classes?” So now I should have to attend a government-run class just so I can exercise my First Amendment rights? I find that very notion offensive. But what Flanagan does not try to resolve is the enormous time burden placed on citizen activists of learning and implementing all the relevant rules. Attending government-run classes only adds to that burden.

Besides, information the Secretary of State offers might not be enough to keep a citizen activist safe. Consider the following exchange between Flanagan and Secretary of State Scott Gessler:

[Gessler] But at a minimum, there’s some uncertainty with the current law and the Sampson case. Which I think in my mind would sort of be vagueness. How do we resolve that?

[Flanagan] You know, I don’t have the magic answer for you today, Mr. Secretary, I apologize. I mean, I think some of the other comments that were talked about, the rules should apply to all — there were some things I actually agreed with. But the [Tenth Circuit] Court wasn’t willing to draw the line [regarding the spending trigger for issue group reporting], and I don’t know that this office really has the authority to draw the line either. I understand that you have to enforce, and educate the public about what the rules are and how they should be enforced…

We are all subject to the possibilities of being challenged and having things taken to court, and have to deal with that as it comes up. But, for the time, it is the role of this office to inform the public.

Did you get that? Even if a citizen activist learns all the rules, goes to a government-run class, and makes every effort to obey all the rules, the activist might still get sued under these laws.

Matt Arnold of Clear the Bench, who actually was sued under these laws, and who was represented by Gessler prior to his election, responds as follows:

And Ms. Flanagan’s advice to people would be, you know what, you can’t rely on guidance from the Office of Secretary of State, you just have to run the risk of getting out there, and being sued, by some legal attack group, like Colorado Ethics Watch… Just take the risk, just put yourself out there, just put your livelihood, your good name, your resources, at risk, because you can’t rely on the law to mean what it says. I find that advice very troubling. It really does suppress political participation.

The case is clear. Colorado’s campaign laws constitute a form of censorship. The only question remaining is this: what are we going to do about it?

SOS Looks to Mitigate Burden of Campaign Censorship Laws

As Diana Hsieh reviews, the Colorado Secretary of State currently is evaluating rules pertaining to issue-group reporting requirements under Colorado’s campaign censorship laws. See also the Institute for Justice’sreport on the court case at issue. Following are the comments I’ve submitted to the Secretary of State.

May 2, 2011

Honorable Scott E. Gessler
Secretary of State of Colorado
1700 Broadway, Suite 250
Denver, CO 80290

Care of Andrea Gyger, andrea[ dot ]gyger[ at ]sos[ dot ]state[ dot ]co[ dot ]us

Re: Ari Armstrong’s comments on Proposed Revisions and Amendments to the Secretary of State’s ‘Rules Concerning Campaign and Political Finance,’ 8 C.C.R. 1505-6

Dear Secretary Gessler,

The issue before the Secretary of State is how to “promulgate such rules… as may be necessary to administer and enforce” Article XXVIII of of the Colorado Constitution (“Campaign and Political Finance”), approved as Amendment 27 in 2002 by Colorado voters.

A general evaluation of the broader Constitutional provision lies outside the scope of the Secretary of State’s present authority. However, in order to set the context, I will note that I regard the entire Article as a violation of the free speech rights of Coloradans as protected by the First Amendment to the federal Constitution. Despite the Tenth Circuit Court’s claim, there can be no “governmental interest” that justifies “abridging the freedom of speech” or “the right of the people peaceably to assemble” when it comes to discussing or advocating political campaigns or ballot measures. Moreover, the measure discourages citizen involvement in the political process, the exact opposite of its stated intent.

Regardless of broader evaluations of Article XXVIII, the Secretary of State has a legal obligation under Section 9 to promulgate legally enforceable rules pertaining to campaign finance.

In the case of Sampson v. Buescher (November 9, 2010), the Tenth Circuit Court of Appeals ruled that Article XXVIII as written unduly violates freedoms of speech and association and is therefore in part (federally) unconstitutional. Therefore, the Colorado Secretary of State must issue legally enforceable rules consistent with the Court’s ruling.

The Court reviews that, as written, “Colorado law requires that any group of two or more persons that has accepted or made contributions or expenditures exceeding $200 to support or oppose a ballot issue must register as an issue committee and report the names and addresses of anyone who contributes $20 or more.”

The Court ruled on a case involving a group that devoted $782.02 to an “anti-annexation effort” by July 13, 2006, and that spent a total of $1,992.37 in cash or in-kind contributions by April, 2007, “of which $1,178.82 went for attorney fees.”

The Court finds: “[C]ampaign-disclosure statutes must survive exacting scrutiny. There must be a ‘substantial relation’ between the requirement and a governmental interest that is sufficiently important to justify the burden on the freedom of association. … Here, 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. We therefore hold that it was unconstitutional to impose that burden on Plaintiffs. We do not attempt to draw a bright line below which a ballot-issue committee cannot be required to report contributions and expenditures. The case before us is quite unlike ones involving the expenditure of tens of millions of dollars on ballot issues presenting ‘complex policy proposals.’ We say only that Plaintiffs’ contributions and expenditures are well below the line.”

The implication is clear and straight-forward: the Secretary of State must, by law, promulgate legally enforceable rules setting a “trigger” amount for mandatory reporting under Amendment XXVIII “well above” the amount of the case in question. While the Court offers no exact figure, common sense dictates that a figure of $5,000 is the minimum that could reasonably be considered “well above” the amounts of the case under scrutiny. I believe that a figure of many times that amount would be more consistent with the reasoning of the Court.

Unfortunately, the speech-restriction organizations Colorado Common Cause and Colorado Ethics Watch, in their comments to the Secretary of State dated January 26, 2011, offer a distorted (and frankly self-serving) interpretation of the Court’s decision.

Elena Nunez of Colorado Common Cause claims, “In its ruling, the Court only found the requirements too onerous as applied in this particular case. We don’t believe that this ruling provides the grounds to weaken the trigger for disclosure more broadly.” Nunez advises, “Rather than focus solely on the dollar amount that should trigger disclosure, we urge the Secretary’s office to improve its guidance for citizens who will be required to comply with disclosure rules going forward.”

Luis Toro of Colorado Ethics Watch takes a similar approach, arguing that the Court’s ruling “does not purport to require Colorado to change the threshold at which a group becomes an issue committee subject to reporting requirements.”

Nunez and Toro simply ignore the Court’s language stating that “a ballot-issue committee” generally cannot be subjected to the reporting requirements unless they spend resources at an amount relative to which the reviewed amounts “are well below.”

Furthermore, Nunez’s claims that “clearer,” newer statutes resolve the problems expressed by the Court’s decision do not pass the laugh test. Yet Toro makes a similar claim about C.R.S. 1-40-113(1)(b), which allegedly “is clear and easy to follow and raises none of the concerns expressed inSampson.” (By Toro’s own description, the law pertains only to notification of those who get petitions printed, not to anybody else who may want to speak out about a measure.)

As several other comments to the Secretary of State make clear, the campaign rules in fact discourage citizen participation in certain political causes. I add my voice to those who have suffered under the law. In opposing the 2010 “Personhood” measure with Diana Hsieh, I found that our project was significantly hampered by the fact that Diana had to spend many hours complying with the reporting burdens. And that’s a project that actually got accomplished despite the reporting requirements; the citizen efforts that were never even launched because of the burdens cannot be known, nor the magnitude of free speech violations calculated. I frankly would not have undertaken the campaign against the “Personhood” measure had Diana not agreed to deal with the onerous bureaucracy of the reporting requirements. My standard course is to simply cut my mind off from any idea that might lead me into the necessity of complying with the regulatory burdens associated with the targeted forms of political speech. Generally I do not even try to develop the ideas and strategies for fighting those political battles that might subject me to the reporting requirements.

At issue is not simply the time required to comply with the reporting requirements, though that cost is substantial. The citizen activist must also bear the emotional burden of constantly fearing that some paperwork error will subject one to expensive and exhausting legal proceedings. Nor do I believe I am alone in finding the prospect of jumping through a bunch of bureaucratic hoops, before I can advocate some political cause with others, to be inherently burdensome.

It is abundantly obvious that the campaign reporting requirements “chill” free speech, in that they discourage it. But to describe this as a “chill” hardly captures the injustice of the requirements. The requirements of Article XXVIII constitute censorship, pure and simple. It is not the censorship of an outright prohibition of some form of speech, but the soft censorship of piling up so many burdens that many simply dare not even try to advocate their views. The results are the same: the law prevents some people from speaking out about causes dear to them.

The notion that cleaner status and rules can overcome the problems expressed in Sampson v. Buescher is absurd. Article XXVIII itself consists of 17 sections, for a total count approaching 7,000 words of dense legalistic language, not counting annotations. Yet, to be safe, the citizen activist must master not only the Constitutional language but all the additional statutes governing campaign finance, in addition to the Secretary of State’s rules. Add to that the burden of properly processing and filing all the often-tiny in-kind and cash contributions. Add to that the emotional burdens of risking legal penalties over paperwork errors and struggling to interact with bureaucratic officials.

Far from being “clear and easy to follow,” the campaign reporting requirements better resemble a nightmare from the mind of Franz Kafka.

Thankfully, the decision of Sampson v. Buescher, in conjunction with Section 9 of Article XXVIII of the Colorado Constitution, prompts the Colorado Secretary of State to substantially raise the “trigger” amount for issue-group reporting, thereby giving citizen activists in Colorado some measure of relief.

Sincerely,

Ari Armstrong