Two and a half years ago, IJ launched a bold First Amendment challenge to Colorado’s unusual system of campaign finance enforcement. Unlike most states, Colorado had granted every person the right to file private lawsuits to enforce the state’s byzantine campaign finance laws. Predictably, political insiders filed these lawsuits not out of any genuine concern for enforcing the law but to harass and intimidate their political opponents.
Not anymore. In June, Judge Raymond P. Moore of the U.S. District Court for the District of Colorado declared Colorado’s private enforcement system unconstitutional, calling it “a feeding ground for political warfare and what could be described as extortion.”
This first-of-its-kind ruling comes as a welcome relief to IJ client Tammy Holland, who in 2015 found herself dragged into the private enforcement system by two school board officials in her community of Strasburg, Colorado. Her supposed offense? Running a newspaper ad about an upcoming school board election. Even though the ad didn’t advocate for the defeat or election of any candidate, the school board officials accused Tammy of violating both state and federal campaign finance laws.
The charges against Tammy were meritless, but that didn’t save her from accruing $3,500 in legal fees defending herself. That’s when IJ stepped in. We took over Tammy’s case and succeeded in getting the charges against her dismissed.
But we didn’t stop there—we wanted to make sure that what happened to Tammy never happened to anyone else in Colorado. And so, representing Tammy, we filed a federal First Amendment lawsuit, arguing that Colorado’s private enforcement system created an unconstitutional chilling effect on protected speech.
When IJ started the case, even we didn’t realize how outrageously Colorado’s law had been abused. But as we dug into the facts, the evidence became overwhelming. Politically motivated lawsuits were not the exception; they were the rule. In fact, Colorado’s most prolific filer of private complaints openly described the private enforcement system as a tool for “political guerilla legal warfare (a.k.a. Lawfare).”
Making matters worse for political speakers was the fact that Colorado’s campaign finance laws are virtually impossible to comply with. A 2007 study by University of Missouri economist Dr. Jeffrey Milyo asked 141 adult participants to fill out the forms that would be necessary for a modest ballot issue campaign in Colorado. Not one participant was able to fill out the forms perfectly, which means that every one of them could have been dragged into court by a political opponent.
When IJ started the case, even we didn’t realize how outrageously Colorado’s law had been abused. But as we dug into the facts, the evidence became overwhelming.
No matter your position on campaign finance laws, everyone should be able to agree that Colorado’s private enforcement system was a terrible way to enforce those laws. Unfortunately, state elected officials were powerless to do anything about it; the private enforcement system was written into the Colorado Constitution as a result of a ballot initiative in 2002, so only a court ruling could take it off the books.
Now we have that ruling, which means that the Colorado Legislature can—finally—go back to the drawing board and fix its abuse-prone system once and for all. Our victory also lays the groundwork for challenges in other states, such as California and Washington, with similar private enforcement systems. And as for Colorado’s campaign finance bullies? They’re in timeout—permanently.
Also in this issue
Subscribe to get Liberty & Law magazine direct to your mailbox!
Sign up to receive IJ's bimonthly magazine, Liberty & Law, along with breaking news updates about the Institute for Justice's fight to protect the rights of all Americans.