Federal Court Rules That Colorado’s Abuse-Prone Campaign-Finance Enforcement Violates First Amendment

Court voices concern that system is “a feeding ground for political warfare and what could be described as extortion”

Arlington, Va.— Yesterday afternoon, Judge Raymond P. Moore, of the U.S. District Court for the District of Colorado ruled that Colorado’s unusual system of campaign-finance enforcement violates the First Amendment. The system permitted any person to file a private lawsuit to enforce the state’s campaign-finance laws. That is unconstitutional, the court held, because there is “nothing reasonable about outsourcing the enforcement of laws with teeth of monetary penalties to anyone who believes that those laws have been violated.”

Strasburg resident Tammy Holland, represented by the Institute for Justice (IJ), challenged the system after she was twice sued by members of her local school board for running newspaper ads urging voters to educate themselves about school-board candidates. Even though Holland was ultimately cleared of any wrongdoing, the lawsuits dragged on for months and cost thousands of dollars in legal fees.

“I’m thrilled the court recognized what this system was doing to people like me,” Tammy Holland said in response to yesterday’s ruling. “All I did was ask my neighbors to get engaged in a local school election, and I got sued two times by people who didn’t like what I had to say. It was incredibly intimidating. Nobody should be able to sue their neighbor for talking about politics.”

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Holland’s experience is all too common. Although most states allow private individuals to file complaints alleging that someone has violated the campaign-finance laws, Colorado is unique in that it outsourced virtually all of its campaign-finance enforcement to private parties. Predictably, the system led to widespread abuse, with complaints routinely being prosecuted not to enforce the laws evenhandedly, but to harass and silence political opponents. Colorado’s most prolific filer of complaints—a company called Campaign Integrity Watchdog—has even touted the process as a weapon for “political guerilla legal warfare.”

“Yesterday’s ruling recognizes that Colorado cannot authorize ‘any person’ to police their neighbors’ political speech,” IJ Senior Attorney Paul Sherman said. “Under the First Amendment, nobody should have to fear being sued by their political opponents merely for expressing their opinion on the issues that matter most to them.”

In recent years, Colorado’s campaign-finance laws have been exploited in increasingly disturbing ways. In 2016, for example, Campaign Integrity Watchdog dropped a case in exchange for a $4,500 “settlement”—paid not to the State of Colorado, but to Campaign Integrity Watchdog directly. Also in 2016, the company sought to extract $10,000 from a state political party, warning that otherwise, “the beatings will continue until morale improves.”

This type of behavior, the court said yesterday, “is of notable concern.” “Presumably, when the voters of Colorado approved Article XXVIII [the campaign-finance law] they did not want enforcement of campaign finance violations to become a feeding ground for political warfare and what could be described as extortion.”

“By outsourcing enforcement to the world at large, Colorado’s campaign-finance system became a tool for corruption and speech suppression,” said IJ Attorney Sam Gedge. “By invalidating this broken enforcement system, yesterday’s decision clears the way for Colorado to enact a system that enforces the laws impartially and consistent with the First Amendment.”

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