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 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.

Left and Right Assault Free Speech

The following article by Linn and Ari Armstrong originally was published July 22, 2011, by Grand Junction Free Press.

Within a week of Independence Day, representatives of the left and right started lining up to assault free speech and advocate censorship.

On July 7 Michele Bachmann, a Republican candidate for president, signed a pledge from the Family Leader to “protect” women from “all forms of pornography.” The next day, guests on Thom Hartmann’s “progressive” radio show called for a Constitutional amendment to censor political speech. God help us if they ever reach a “bipartisan” agreement to gut the First Amendment.

We’ll start with Bachmann. The pledge she signed neglects to specify what should be done about pornography. But this is a pledge for candidates, so we can sensibly conclude the intent is to pass laws limiting or outlawing pornography. Moreover, the pledge equates pornography with slavery and the murder of children, and obviously those latter two things should be outlawed. (The pledge also suggests abortion should be banned, but that’s the topic for another article.)

The first problem is who gets to decide which naked pictures constitute high art and which get banned as pornographic. For example, R. Crum’s illustrated Genesis features a nude Adam and Eve, both looking quite healthy (and neither wearing a fig leaf). Should we ban that?

Pornography can be written text as well as images. Chapter 19 of Genesis features Lot’s daughters getting him drunk and then having sex with him. The daughters get pregnant, having sons who go on to found the Moabites and Ammonites.

So who in Bachmann’s world gets to decide which sexually explicit images and texts rise to the sacred and which deserve criminal prosecution? What about Playboy? What about romance novels? What about Michelangelo’s sculpture of David?

Obviously the government has a legitimate interest in protecting the rights of children, who have not reached the age of consent. But consenting adults properly have the right to engage in whatever behavior they want, free from political interference. Anything short of that standard leads logically to the incremental destruction of individual rights.

While Bachmann deserves the harshest criticism for her frankly idiotic move to sign the pledge, the left’s censors deserve even harsher condemnation. They should know better. There was a time in this country when the left actually took free speech seriously. Not anymore.

Hartmann’s guests made two recommendations. First, amend the U.S. Constitution such that only registered voters may donate funds to a campaign or issue group, and regional politicians may limit the amount donated. Second, finance all campaigns for public office with tax dollars. Both these measures blatantly violate freedom of speech.

The purpose of the proposed amendment is to prevent corporations and other groups from funding campaigns. But who gets to decide which people are qualified voters? Some people don’t register to vote for ideological reasons; do they lose their rights of speech? Apparently seventeen-year-olds lose their rights.

Even if the amendment were restricted to individuals, rather than qualified voters, it still would violate people’s rights. True, as leftists monotonously drone, corporations aren’t people. But apparently leftists have neglected to notice that corporations are comprised of people. So are unions. So are educational organizations.

Individuals have the right of free speech, and they have the right to join with others to speak. People don’t lose their rights merely by collaborating with others.

Limiting the amount people can give to political causes also violates their rights of free speech as well as property. People have the right to support the speech of their choice, whether by lending a printing press, handing out flyers, or donating money to help somebody else speak. Limiting people’s ability to support the speech of their choice constitutes censorship.

What about “publicly” funded campaigns? The freedom of speech entails the right not to speak. If somebody forces you to stand up and recite the Pledge of Allegiance, or the Communist Manifesto, or whatever, that violates your rights of free speech. Likewise, forcing people to financially support speech against their will violates their freedom of speech.

An important practical problem is who gets to decide which candidates “deserve” tax dollars. Can just any kook declare to be a candidate and go on the campaign dole? Obviously that wouldn’t work, so somebody would be in charge of blessing the “right” candidates with political welfare.

Notice that both Bachmann and Hartmann’s guests offer their pretexts for imposing censorship. The religious right often claims that pornography promotes sexual promiscuity and so on. The left claims that money in politics corrupts it.

Censors of all stripes unite in their belief that individuals are just too stupid to make their own decisions, and therefore they need benevolent politicians and bureaucrats to do their thinking for them. No presumption could be more deadly to a free republic.

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.

Making the First Amendment Part of the Conversation

That Colorado’s campaign laws chill free speech when it comes to speaking out for or against ballot measures is now established, incontestable fact. The reams of dense legalize, the onerous reporting requirements, and the risk of getting sued simply keep many citizen activists from getting involved in funded campaigns. On May 11, I taped an edition of Jon Caldara’s “Devil’s Advocate” on Channel 12 to discuss these issues.

I draw your attention to the exchange starting at marker 8:39:

Jenny Flanagan of Colorado Common Cause: “The reality is, the Colorado Constitution requires disclosure. That’s what we have on the books.”

Me: “The reality is we have a First Amendment.”

Flanagan: “That’s the reality. That issue [the Colorado laws’ compatibility with the First Amendment] has not been challenged, and that’s not part of the conversation right now.”

It’s a pretty sad day when the First Amendment is not part of the conversation when it comes to political speech. And that is precisely the problem I seek to redress.

Note: On May 13, two days after the show taped (but before it aired), the Secretary of State’s office announced the rule change raising the “trigger” level for issue-group reporting from $200 to $5,000.

See also my previous links on the matter:

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

Colorado’s Campaign Laws Throw Common Sense Out the Window

Arnold Testifies on Campaign Laws

CO Campaign Laws Chill Speech (Videos)

Why Colorado’s Campaign Laws Constitute Censorship

SOS Looks to Mitigate Burden of Campaign Censorship Laws

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

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

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.”