Colorado Supreme Court Must Stand Up For Free Speech

Recent Court of Appeals Ruling Disarms Political Speakers, Empowers Campaign Finance Bullies

Arlington, Va.— A recent decision by the Colorado Court of Appeals will make it much harder for political speakers to get the legal help necessary to navigate Colorado’s campaign finance laws, threatening the First Amendment rights of hundreds of groups throughout the state. Now, Coloradans for a Better Future, a political group that spoke out in the 2012 Board of Regents race, is asking the Colorado Supreme Court to intervene.

READ THE PETITION

In April, the Court of Appeals ruled that pro bono or reduced-cost legal services are “contributions” under Colorado’s campaign finance laws. That means that these services not only must be reported in campaign finance disclosure reports, but they are also subject to Colorado’s strict campaign finance limits.

Senior Attorney Paul Sherman of the Institute for Justice, which represents Coloradans for a Better Future (CBF), said, “Colorado’s campaign finance laws are full of traps for the unwary. Even people who try to comply with the law routinely make mistakes. The Court of Appeals ruling will not only make it harder for political speakers to comply with the law, it will make it harder for political speakers to defend themselves in the lawsuits that can follow even innocent mistakes.”

CBF has itself been the target of four campaign finance lawsuits, all filed by a candidate CBF criticized in the 2012 Republican Primary for the Colorado Board of Regents, Matthew Arnold, and a group he founded, Campaign Integrity Watchdog (CIW). Mr. Arnold’s most recent lawsuit alleged that CBF violated the campaign finance laws when it failed to disclose the value of legal services it received from a volunteer lawyer who helped the group to shut down after Mr. Arnold’s first three campaign finance lawsuits.

Jon Anderson, former counsel for CBF, said, “This case is important for Colorado to get right.  You cannot have a losing candidate in an election effectively restrict an organization’s First Amendment rights as political retribution.  CBF is asking the Supreme Court to take this case not just to protect its own rights, but to protect the First Amendment rights of all Coloradans.”

Retaliatory campaign finance lawsuits are common in Colorado, which allows any person to file a private lawsuit to enforce the state’s complex campaign finance laws. Mr. Arnold’s group, CIW, has filed more than 50 private complaints since 2014, many over minor reporting errors. In one case, CIW requested that a group be fined $36,000 over two misreported contributions of $3 each. And in February, The Colorado Independent reported that Mr. Arnold emailed what he described as a “settlement” offer to the Republican Party of Colorado, offering to stop filing campaign finance lawsuits if he were personally paid $10,000. Otherwise, Mr. Arnold warned, “the beatings will continue until morale improves.”

That system of private campaign finance enforcement is currently the subject of a federal civil-rights lawsuit filed by the Institute for Justice.

IJ Attorney Sam Gedge said, “It’s bad enough that speakers in Colorado can be sued by anyone who merely alleges they’ve violated the campaign finance laws. The Court of Appeals’ ruling means that speakers who seek out free or reduced-cost legal assistance can now get in even more hot water, merely for trying to defend their First Amendment rights. The Court of Appeals’ ruling is wrong on the law, and the Colorado Supreme Court should reverse it.”

CBF filed its petition with the Colorado Supreme Court on August 11. Campaign Integrity Watchdog has until August 25 to respond to the petition. CBF’s petition has been supported by briefs filed by the Colorado Secretary of State and the Center for Competitive Politics.

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