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?