Colorado Supreme Court Will Hear Free Speech Appeal

Court Will Decide if Speakers Can Rely on Pro Bono Legal Help When Talking About Politics

Arlington, Va.—In a case that will have major implications for political speech across the state, the Colorado Supreme Court agreed yesterday to decide whether legal aid for political speakers can be regulated as a political “contribution.”  Representing Coloradans for a Better Future (CBF)—a political group that spoke out in the 2012 Board of Regents race—the Institute for Justice asked the Supreme Court to intervene last month.

In April, the Colorado Court of Appeals ruled against CBF, holding that legal services must be treated like partisan contributions.  That means that these services not only would have to be reported in campaign finance reports, but they would also be subject to Colorado’s strict campaign finance limits. With the 2016 election approaching, the Court of Appeals’ decision thus made it much harder for political speakers to get the legal help they would need to navigate Colorado’s complex campaign finance laws.

In agreeing to review the Court of Appeals’ decision, the Colorado Supreme Court yesterday also stayed that ruling.

Senior Attorney Paul Sherman of the Institute for Justice, which represents CBF, said, “The Court of Appeals’ ruling meant that Coloradans could find themselves breaking the campaign finance laws simply by working with a lawyer to try to comply with those laws. That sort of Catch-22 is unjust and unconstitutional, and the Colorado Supreme Court can now correct it.”

The issue is all the more pressing because Colorado’s campaign finance system has resulted in widespread abuse. In Colorado, anyone can file a private lawsuit to enforce the state’s complicated campaign finance laws. Predictably, these complaints are routinely filed, not to protect the integrity of the electoral process, but to harass and silence political opponents.

CBF, for example, has 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 company he founded called Campaign Integrity Watchdog. 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 series of campaign finance lawsuits.

Sherman 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.  By taking this case, the Supreme Court now has the opportunity to protect the constitutional rights of all Coloradans.”

Retaliatory campaign finance lawsuits—termed “lawfare” by Mr. Arnold—are all too common in Colorado. Campaign Integrity Watchdog, for instance, has filed more than 50 private complaints since 2014, many over minor reporting errors. In one case, it 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 sent 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 meant that speakers who seek out free or reduced-cost legal help could get in even more hot water, merely for trying to defend themselves. We look forward to the Colorado Supreme Court’s correcting that injustice.”

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