June 2, 2017

The Colorado Supreme Court has an opportunity to make life a lot easier for political speakers in the Centennial State. On May 2, the court heard argument from the Institute for Justice in Coloradans for a Better Future v. Campaign Integrity Watchdog, a case that will have profound implications for hundreds of political groups throughout the state.

The story begins in 2012, when a group called Coloradans for a Better Future (CBF) ran political ads criticizing Matthew Arnold, a Republican candidate for the University of Colorado Board of Regents. After Arnold lost the election, he turned to the courts, filing three separate campaign finance lawsuits against CBF. To escape this harassment, CBF shut down with the help of a volunteer lawyer. But this only triggered a fourth lawsuit by a group Arnold founded, Campaign Integrity Watchdog (CIW), alleging that the volunteer lawyer’s services should have been reported as a campaign contribution.

Unfortunately, in April 2016, the Colorado Court of Appeals agreed and its ruling threatens hundreds or even thousands of political speakers throughout Colorado. Grassroots political speakers often rely on pro bono legal services to avoid the many pitfalls in Colorado’s complicated campaign finance system. But under the Court of Appeals ruling, seeking out low-cost legal help could expose these speakers to abusive lawsuits filed by their political opponents.

If pro bono legal services are “contributions,” they must be assigned a value and disclosed in campaign finance reports. But this is a lot harder than it sounds, because lawyers routinely charge different rates to different clients based on factors such as their ability to pay. That means that even if a political speaker tries to comply with this requirement, a group like CIW can still haul that speaker into court based on the mere allegation that the legal services were worth more than reported. Such lawsuits are common—in recent years, CIW alone has filed dozens of lawsuits, often seeking tens of thousands of dollars in fines for trivial reporting errors.

For groups that are subject to contribution limits, the problems are even worse. Political committees in Colorado, for example, cannot accept contributions of more than $575. At regular billing rates for attorneys, that means that political committees could never accept more than a couple of hours of legal help, far less than is needed to navigate Colorado’s complex laws. These limits would also make it illegal for IJ and other nonprofits to represent these groups in public interest lawsuits, which require hundreds of hours of attorney time.

Luckily, the Court of Appeals will not have the final word. After the court issued its decision, IJ came to the rescue. Taking over the case, we not only convinced the Colorado Supreme Court to review the Court of Appeals decision, we also convinced the court to grant a rare order preventing that decision from going into effect while the case moves forward.

Now we await a ruling. In the meantime, IJ is also moving forward with another lawsuit in federal court that seeks to entirely dismantle Colorado’s abuse-prone system of private campaign finance enforcement. We will press forward until all Coloradans—and, eventually, all Americans—can speak freely, without fear of retaliation from campaign finance bullies.

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