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.


Ari Armstrong

At Least Dan Maes Answered the Questions

The following article originally was published February 1 by Grand Junction’s Free Press.

At least Dan Maes answered the questions

by Linn and Ari Armstrong

Recently the Supreme Court struck down part of the McCain-Feingold censorship law in the case Citizens United v. Federal Election Commission. The decision is tragic because the Court only partially restored the First Amendment, and apparently four of the justices cannot comprehend the simple phrase, “Congress shall make no law…”

Leftist critics of the ruling argue that, while a lone individual might have some rights to free speech, individuals do not have the right to freely associate to express themselves. Further, these critics claim, you have no firm right to spend your own money on expression.

To grasp the left’s hypocrisy on finances, just ask a critic of the ruling whether the right to get an abortion would be preserved if women and clinics were forbidden from spending money on abortions. (Eugene Volokh raised this point.)

Regarding this case the left is perfectly consistent with its Marxist roots. Marx wrote, “The mode of production of material life conditions the general process of social, political and intellectual life. It is not the consciousness of men that determines their existence, but their social existence that determines their consciousness.”

In simpler terms, you are just too stupid to independently evaluate a film or ad funded by a corporation. You need the benevolent nannies of the left to help you think straight.

Unfortunately, some people do everything they can to prove Marx right. They thoughtlessly buy junk just because the idiot box or their friends tell them to. They never read great books or otherwise develop their reasoning skills. They vote for candidates based on appearance, smooth talk, and hysterical smear campaigns against the other guy.

However, trying to save people from their own stupidity only entrenches stupidity. People cannot choose wisely if they lack the capacity to choose badly. In terms of free speech, people must be free to say and believe stupid things, if we wish to preserve the right and ability to say and believe profundities.

The law properly guards against fraudulent speech. You can’t legally tell someone a used car has only ten thousand miles on it when it actually has a hundred thousand. Nor can you make up lies about a candidate. Established law already addresses such matters.

Aside from libel, however, people should be free to say whatever they want about candidates (using their own resources), whenever they want, and with whomever they want. That is precisely what the First Amendment is all about.

We can’t blame bad government on advertisements. After all, smear campaigns work only if voters fail to critically judge them. It is you, the individual voter, who must carefully evaluate claims, do some background research, and seek the broader context. If you fail to do so, censorship laws will not save the republic but will only further erode its foundation.

Let us make 2010 the year when candidates articulate their views on the issues and voters decide accordingly. Let us make this election about ideas, principles, and policies, not hair dye, cowboy hats, and vocal timbre.

It is in this spirit that we introduced our Candidate Survey, found at Unfortunately, as of our deadline, we had heard from only two candidates running for governor or U.S. Senate. Dan Maes, the Republican challenger to Scott McInnis, said he’d answer the survey and followed through on his word. We also heard from independent candidate Rich Hand. You can find their responses linked from the original survey.

Though we originally contacted all the major-party candidates (or their representatives) for those offices by January 13, our initial correspondence did not make it to the right parties in the case of McInnis and Democratic top gun John Hickenlooper. While representatives of both candidates have now confirmed receipt of the survey, they have not committed to answering it. We encourage readers to ask these candidates to answer the survey.

Maes is the underdog, and we disagree with a number of his views. Generally, though, we are impressed by his responsiveness, straight talk, sincerity, and hard work.

Maes is a pretty solid fiscal conservative. He thinks the state should cut taxes and permit the traditional energy industry to thrive (thereby also increasing the tax flow from energy). He is too unfriendly to immigrants in our view. Disappointingly, he said campaign censorship laws should be “maintained,” and he thinks flag desecration should be Constitutionally outlawed.

Most disturbing is Maes endorsement of the “personhood” measure, which if fully implemented would outlaw nearly all abortions, outlaw common forms of birth control, restrict fertility treatments, and subject women to severe legal interference.

Maes also punted on several questions. For example, we asked, “Should abortion be legal in cases of rape or incest?” Maes answered, “It already is.” Cute. Perhaps Maes would care to answer the question next time: what does he think the law should say?

At least Maes answered (most of) the questions. That’s a start.

Clear the Censorship

I am utterly astounded that so many Colorado “conservatives” endorse censorship. Let’s get this straight, friends: if you endorse censorship, you are an enemy of liberty. This is just not a negotiable issue.

Amendment 54, a campaign censorship law passed by (bare) majority last year, thankfully has been suspended by a Denver court. This is not a surprise, given the measure violates the First Amendment of the U.S. Constitution and contradicts Article II, Section 10 of the Colorado Constitution, which states:

Freedom of speech and press. No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty; and in all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.

This is hardly ambiguous text.

I was therefore surprised to read an article at Clear the Bench Colorado endorsing Amendment 54. The article reminds us that the measure “passed by a vote of the citizens of Colorado.” So what? Since when do Republicans endorse pure democracy? The entire point of constitutional government is to protect individual rights from mob rule.

Here is the central argument from Clear the Bench:

Once again, a judge has acted on the behalf of special interest groups intent on “gaining favor and contracts from public officials” through political contributions — “probably triggering a flood of campaign contributions” from those seeking to curry favor while the ‘temporary injunction’ remains in effect.

The same argument could apply to McCain-Feingold. Does Clear the Bench also endorse the federal censorship law and decry the Supreme Court’s limitation of it?

The purpose of Amendment 54 (now part of Article 28 of the Colorado Constitution) is to prevent recipients of no-bid government contracts from contributing to campaigns. The reasoning behind the restriction is obvious enough: people who benefit from tax dollars ought not influence the spending of those tax dollars. But while that reasoning points to a legitimate problem, it does not justify censorship.

With governments at all levels spending so much money through forced wealth transfers — about 45 percent of the total economy — political pull is just the way things operate. The only real way to solve that problem is to cut government spending and restore a free market. Until that happens, campaign censorship laws only further violate our rights without addressing the fundamental problem.

At a less fundamental level, if there is a problem particularly with no-bid contracts, then the solution is to restrict or eliminate no-bid contracts (and open contracts to bidding).

If we were to extend the argument that people who receive government funds should be censored, that would apply also to every student who takes government-backed loans, every senior citizen who accepts Social Security or Medicare, every employee and contractor of the government, and so on. In other words, given today’s mixed economy and high rate of government spending, the logical conclusion of Amendment 54 is near-universal censorship.

Amendment 54 is shockingly broad; its limitations extend far beyond any direct connection between a no-bid contract and related taxes. Consider the details:

* Amendment 54 prevents contractors, “for the duration of the contract and for two years thereafter,” from contributing to any political party or state or local candidate. There need be absolutely no connection between the political race and the contract.

* A contractor cannot “induce by any means” a campaign contribution “on behalf of his or her immediate family member.” An “immediate family member” is defined as “any spouse, child, spouse’s child, son-in-law, daughter-in-law, parent, sibling, grandparent, grandchild, stepbrother, stepsister, stepparent, parent-in-law, brother-in-law, sister-in-law, aunt, niece, nephew, guardian, or domestic partner.” In other words, a contractor cannot seek to persuade these people that they ought to financially support any candidate. To be enforced, the measure requires thought police.

* The measure also prohibits campaigns from “intentionally” accepting funds proscribed by the measure. What is “intentional?” How is that proved? What this does is allow big-moneyed interests to go after candidates they don’t like, discouraging potential candidates who can’t afford a team of lawyers from running.

Amendment 54 is bad law. It is unjust law. It is unconstitutional law. It deserves to be thrown out.

Conservatives need to learn that the opposite of “judicial activism” is not mob rule. Judges play a legitimate role in protecting the rights of the individual from the whims of the majority.

It is a shame that Clear the Bench, which has undertaken a good and noble cause in advocating courts that uphold the rule of law, has muddied the waters by endorsing censorship. Let’s hope that organization and conservatives more broadly correct that failing.

Censoring Scott McInnis

I imagine the last thought on Scott McInnis’s mind about Complete Colorado is “you complete me.”

McInnis, who appears headed into the Colorado governor’s race of 2010, appeared in scandalous-sounding headlines before even announcing his candidacy — something every candidate no doubt wishes to avoid — thanks to an April 30 exclusive story by Complete Colorado bearing the ominous title, “Voicemail Raises Ethics Questions for McInnis and His Probable Campaign for Governor.”

McInnis left a voice mail with a potential supporter in which McInnis mentioned, “We’ve got Sean Tonner on board… Sean’s doin’ our… 527.” Complete Colorado summarizes, “The mention of Tonner being on the team and also running a 527 could be problematic. It is illegal for a candidate committee to coordinate with a 527 ‘issues’ committee.”

Now that McInnis said the verboten word “527,” it is no doubt time for a full inquiry. All we need now is a smoking gun or a stained dress.

What this story actually illustrates is that the campaign finance “reform” laws are in fact censorship laws. Candidates cannot simply present their message to the public coordinating with willing donors and spokespersons: they can speak only within the confines of elaborate and arbitrary rules that only armies of lawyers can hope to decipher.

A regular person cannot run for office without consulting an attorney. If you want to run for political office, you must learn the politically-correct and lawyer-approved code language for announcing your candidacy and discussing supporters. If you violate these Speech Codes, you can land in deep trouble.

The campaign censorship laws help assure that only political insiders can navigate the election laws. Most normal people are frightened away from running for office or even becoming involved in political causes. The campaign censorship laws facilitate retaliatory lawsuits and campaigns of character assassination.

Meanwhile the campaign censorship laws obviously have not cleaned up politics or gotten “big money” out of politics. The laws have merely thrown the advantage to those with enough lawyers to game the legal system.

I find it astonishing that the recipient of the voice mail — presumably a Republican — sent the voice mail to a conservative/libertarian site in order to damage a Republican candidate. (Josh Penry is also headed into the race on the Republican side.)

A May 1 story by the Denver Post’s Jessica Fender offers useful context. Here is how McInnis defended the voice message:

McInnis, who verified that he left the message, pointed out that he has not officially announced his candidacy or formed a candidate committee, so the rules do not yet apply.

And what he really meant to say was that Tonner, president of consulting firm Phase Line Strategies, is a supporter and is answering questions about potential future 527s, he said.

“I should have said Sean Tonner is the one I’m looking to for answers on this,” McInnis said. “The law doesn’t prohibit you from discussions on ‘This is what’s going to be needed.’ “

So apparently candidates can discuss “potential future 527s” without coordinating with them. McInnis’s interpretation of the inherently ambiguous Speech Codes is as legitimate as any other.

These are in fact censorship laws, as Fender’s following passage illustrates:

McInnis may not have technically broken campaign laws, said Colorado Common Cause Director Jenny Flanagan, but there is one simple rule when it comes to 527s: Don’t talk to them.

“It’s certainly a violation of the spirit,” Flanagan said.

When the law prevents you from talking to others, that is censorship. Such laws violate the Bill of Rights and our fundamental human rights. They are an abomination that must be repealed.

That said, I am surprised that McInnis, a former member of Congress, did not script his message more carefully given his knowledge of the campaign censorship laws.

Complete Colorado did the right thing in running the story. It is important to know how the censorship laws are carried out in order to argue against them.

The fact that Complete Colorado has a political leaning does create a certain awkwardness surrounding the story, as illustrated by a headline above a story from the Daily Sentinel’s Gary Harmon, “McInnis’ voice mail posted at site run by supporters of possible rival.” Harmon notes that Complete Colorado “is owned by Todd Shepherd and Justin Longo,” both of whom work for the Independence Institute. Harmon writes, “ has nothing to do with the Golden-based Independence Institute, where he is employed to research government misdeeds, Shepherd said.” Still, awkward.

However, Harmon’s claim that Shepherd and Longo “are supporting McInnis’ likely intraparty rival, Josh Penry” is completely unjustified, as Shepherd demonstrates in a follow-up article. Shepherd points out that Harmon’s claim is based exclusively on the fact that both Shepherd and Longo “are listed on a Facebook page, ‘Draft Josh Penry for Colorado Governor.'”

But that Facebook association proves nothing. People often join internet lists, Facebook pages, etc. to gain information. Shepherd points out that he is also Facebook “friends” with Democratic Governor Bill Ritter. Moreover, the Daily Sentinel itself is friends with Penry (and I wonder whether this was merely the result of investigating the story).

So we have (fake) scandal and (fake) counter-scandal.

Unfortunately, few are talking about the real scandal: political activists in Colorado suffer under censorship laws and Orwellian Speech Codes. Perhaps journalists should spend a bit of time looking into that.

Time to Speak Out for Free Speech

The following article originally was published on October 27, 2008, in Grand Junction’s Free Press. Links have been added here. See also “Eric Daniels Defends Free Speech.”

Time to speak out for free speech

by Linn and Ari Armstrong

Free speech is under assault in America by state and federal governments, despite constitutional protections.

Both major presidential candidates are enemies of free speech. In 2002, John McCain rode the McCain-Feingold campaign censorship law through Congress. Among other things, the law prohibited select groups from running certain political ads before elections, though the Supreme Court struck down some of the worst parts of the law. Barack Obama wants federal controls on media ownership, his spokesperson told Broadcasting & Cable.

Some conservatives want more censorship over pornography. Many on the left call for censorship of the radio by forcing broadcasters to air certain views; supporters laughably call their scheme the “Fairness Doctrine.”

Here in Colorado, various activists have faced legal threats for daring to exercise their rights of free speech. For example, in 2006 Becky Clark Cornwell put up yard signs and protested a plan to annex her community of Parker North into the city of Parker in Douglas County.

A supporter of annexation filed a legal complaint against Cornwell and others, claiming they had engaged in “illegal activities” under Colorado’s campaign censorship laws.

Lisa Knepper of the Institute for Justice (IJ), a civil rights group that defended Cornwell and her neighbors, said that, while the U.S. District Court ruled the group could not be penalized, the court “failed to change the law to prevent such abuses of campaign finance law in the future, so we’re appealing to the 10th Circuit.”

ABC’s 20/20 featured Cornwell in an October 17 story about the campaign finance laws. Cornwell said “the lawsuit was used in an effort to shut us up about the annexation, to scare us enough and clobber us with these laws so that we wouldn’t talk about it any more.”

20/20 paid people to try to fill out Colorado’s campaign forms. Nobody did so successfully. One subject said, “A regular citizen cannot read this legalese.” Another said, “I’d rather just not get involved in the political process if I have to go through the nonsense that I had to go through today.”

Steve Simpson, the IJ lawyer defending the Parker North residents, said he’s also defending the Independence Institute, which was sued over its criticisms of Referenda C and D in 2005. Simpson is awaiting a decision from the Colorado Court of Appeals. He said “it would be impossible” for the Independence Institute, a think tank, to comply with the reporting requirements as an issue committee, because the group gets funds for general purposes and spends them on a wide variety of issues.

Even though we’ve condemned Amendment 48, which would absurdly define a fertilized egg as a person in the state constitution, we were displeased to see that a fellow named John Erhardt sued the Amendment 48 campaign for petty violations of the campaign censorship laws. Erhardt gloats on his blog, “So, while the fine of $150 won’t break their campaign, they did have to spin their wheels to defend this.”

Diana Hsieh, co-author of the paper “Amendment 48 Is Anti-Life” at, said the advocates of 48 “should be free to advocate their views — not bogged down in opportunistic legal action by opponents… I want opponents of Amendment 48 to be spending their time arguing against the substance and philosophy of it, not playing campaign finance dirty tricks.”

Finally, Douglas Bruce has taken flak in the media [one and two] for mailing a flyer against Amendment 59 and Referendum O through a nonprofit group, Active Citizens Together, without filing the legal paperwork that some think applies.

It’s past time to rethink the validity of the campaign censorship laws, along with all the other restrictions on free speech. We checked in with Eric Daniels of the Clemson Institute for the Study of Capitalism, and he offered a refreshingly consistent defense of our rights.

Daniels said, “Free speech means the right (not privilege) of individuals to express their opinions without government censorship of any kind, whether by hindering speech through regulation or through restricting it through prosecutions after the fact.”

We don’t even like requirements to report contributions. People have a right to speak anonymously. There’s no clear way to distinguish between advocacy and education. And, the voters can demand disclosure with their votes.

Daniels agrees: “If politicians wish to disclose the source of their financing to the public, they are free to do so… The electorate can indeed decide through voting whether to support candidates who do or do not disclose their financing. Contributing money to a political candidate or to supporters or opponents of a ballot measure should properly be a matter between the private parties themselves.”

Government should not abridge “the freedom of speech, or of the press.” Politicians have gotten away with doing just that for far too long. If we wish to retain and restore our other liberties, we must above all fight for our rights of free speech.

20/20 Reveals Free Speech Violations

20/20 ran a powerful segment on campaign censorship laws. Becky Clark, a Coloradan who was sued for putting up yard signs and getting politically active in her community, is featured in the segment. The upshot is that the laws benefit insiders and raise hurdles for true grass-roots activism. These laws are unjust, and they must be repealed.

Update: I’ve since learned that her full name is Becky Clark Cornwell. Earlier this year, she wrote a Speakout for the Rocky Mountain News about her ordeal.

ABC News has also published John Stossel’s review of campaign finance laws.

Becky Clark’s Fight for Free Speech

Gus Van Horn alerted me to an important Colorado story that, somehow, I’d missed till now. Becky Clark got sued for exercising her right of free speech without filling out the right bureaucratic forms.

While I have not independently checked her story yet, Clark tells a fascinating tale:

Way back in the early part of 2006 our little unincorporated neighborhood of about 300 houses in Parker, Colorado was all abuzz over the efforts of two of our neighbors who thought it would be a good idea to annex into the town. After my husband and I studied the facts and talked to our neighbors, we decided we were against annexation for a variety of reasons, the most important to us being the huge sales tax increase we’d be hit with.

So, because we own a printshop and can make signs, we made a couple that said “No Annexation” and “Annexation is a permanent tax increase” and planted them in our front yard.

Our neighbors kept stopping by asking if we’d make some for them, so we did. Pretty soon the neighborhood was filled with these signs and it was pretty clear most everyone held the same opinion that we did. …

[In July] six of us, and our printshop, were slapped with a lawsuit by two of our neighbors, the two who were for the annexation. …

They said we were not in compliance with campaign finance laws and we needed to register as an issue committee. I had no idea what that meant and I’d never even heard the phrase “issue committee” before. …

They wanted to shut us up. The litigation was clearly an attempt to intimidate us.

We had no choice but to file as an issue committee… It fell to me to do the paperwork, and let me tell you, it’s no picnic. …

These campaign finance laws need to be changed so no one can try to shut up the people who oppose them. After all, free speech — to me — is the free exchange of differing ideas and the right to voice them without the fear of harassment and intimidation.

What has happened to our society that people are so threatened by an honest difference of opinion that they can file suit against anyone who speaks with an opposing voice?

I think I should be able to stick a political sign in my front yard without my neighbors slapping a lawsuit on me. And I think you should be able to also.

In a follow-up, Clark talks about “September 2008 when the judge finally ruled on our lawsuit. The federal judge said we should not have been sued for our speech opposing the annexation, BUT the ruling did nothing to stop future abuses of campaign finance laws in Colorado or elsewhere. The decision also lets stand the burdensome red tape required under Colorado law for grassroots groups that simply want to speak out about issues on the ballot.”

Clark also reports that she’s been interviewed by 20/20 for a story that will air October 17.

Stay tuned. I need to read a lot more about the details of this case, but so far Clark’s account squares with my understanding of Colorado’s campaign finance laws. Could Clark be to free speech what Kelo was to property rights?

Can you imagine somebody like Sam Adams filing “issue committee” paperwork with the government?

Who’d have thought that America’s Republican candidate for president would join forces with the socialist left to impose censorship — or that the American people would let them get away with it.

How Obama Lost Another Vote

The following article originally was published by Grand Junction’s Free Press on July 21, 2008.

How Obama lost another vote

by Linn and Ari Armstrong

We write as a father-son team. We almost always agree about fundamental issues, yet sometimes we look askew at each others’ strategies.

For example, last month Ari wrote on his blog ( for June 6), “I deem that McCain is the worst evil in the race, and therefore I’ve decided to mark my ballot for Obama as the strongest possible vote against McCain.” Such a position is sacrilege to much of the family.

What’s so bad about McCain? Ari’s post reviews three main flaws. McCain snubbed the First Amendment with his campaign censorship law, saying he wants to violate our “quote, First Amendment rights” for his version of “clean government.” We wouldn’t want politics mucked up with all that liberty.

He pushes for faith-based politics and declares his support for “ending abortion.” And he humbly requests that you “sacrifice your life” to the state. (Where this involves military conflict, we’re reminded of Patton’s advice about which side we should get to sacrifice their lives.)

We agree about McCain’s flaws. We may disagree about what to do about them, but we now agree that voting for Obama is not the answer. Why the change? In brief, Obama proposes new political controls over our lives and the economy at an astounding pace.

Obama wants socialized medicine, more wage controls, more corporate and personal welfare, higher taxes, and more energy restrictions, to mention just a few highlights. How does he compare with McCain on the issues of speech, faith-based politics, and sacrifice to the nation?

Obama didn’t vote on the McCain-Feingold campaign censorship law, because the law passed in 2002, while Obama didn’t take his Senate seat till 2005. We were hopeful about a headline from Broadcasting & Cable claiming that Obama “does not support” the Fairness Doctrine, which is a euphemism for censoring radio.

However, Obama did not take a principled stand for free speech; instead, his spokesperson said that the proposal was a “distraction” from imposing other controls such as “media-ownership caps.” In other words, Obama believes the national government should be able to forcibly prohibit some people from owning certain media outlets.

Both McCain and Obama believe that the phrase “Congress shall make no law” actually means “Congress shall make a law” imposing speech controls.

Obama had nothing but praise for President Bush’s national faith-based welfare, which forces you to hand over some of your money to religious groups.

Obama promised that “federal dollars that go directly to churches, temples, and mosques can only be used on secular programs.” However, not only is it immoral to force people who disagree with a particular religion to fund practitioners of that religion, but it is impossible for explicitly religious groups to spend tax dollars in a strictly secular way. The national government has no business forcibly redistributing people’s money to any religious outfit.

The First Amendment also states, “Congress shall make no law respecting an establishment of religion…” While faith-based welfare does not sanction a single creed, it forcibly transfers funds to particular religious groups in violation of religious liberty and freedom of conscience.

If you’re a Christian, you shouldn’t be forced to fund a Muslim organization, and vice versa. If you’re an atheist or “other,” you shouldn’t be forced to fund either. And churches shouldn’t bow to Caesar to stick their noses into the government trough.

What about the issue of sacrificial service? When Obama came through Colorado earlier this month, he outlined his plan for forcing students to serve politician-approved goals. The Rocky Mountain News reports that Obama wants to make “federal assistance conditional on school districts developing service programs.” In other words, Obama first wants to take your money by force, then blackmail your local school district with your money to force students to take time away from their studies, work, and other interests to “serve” whatever it is Obama deems appropriate.

And we always thought the Thirteenth Amendment prohibited involuntary servitude. True enough, people can pull their children out of government schools in protest, which means that they merely have to perform involuntary servitude to fund the school they’re not using.

McCain and Obama are not merely bad candidates. Their policies are profoundly evil, and they violate the principles of liberty on which this nation was founded. They also violate at least the spirit, and we believe the letter, of the Constitution.

So whom are we voting for this year? We doubt that any of our regular readers need some newspaper columnists to tell them how to vote. We’ll probably vote differently, anyway.

However, Ari feels free to mention that he’s seriously considering writing in John Galt for president. With so many political “leaders” blaming liberty for the problems caused by political controls, and promising as the answer more severe controls, this election is starting to feel a lot like the world of Atlas Shrugged.