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June 16, 2011 10:16 PM UTC

CO Sec of State defies constitution, overturns transparency election laws

  • by: wade norris

Colorado Sec. of State Scott Gessler has already embroiled himself in controversy when he tried to remain employed with his former partisan Republican elections law firm even as he was sworn in as Secretary of State.

Now, Gessler has decided to unilaterally overturn the state Constitution, specifically amendment 27, which stipulates any spending on elections over $200 must be reported to the Secretary of State. Now he has decided that a political committee for efforts like Personhood amendments or anti-labor laws can spend up to $5000 without reporting who they are or where they came from – somewhat copying on a smaller scale the Citizens United decision.

Fortunately, Colorado Ethics Watch and Common Cause are filing a lawsuit to stop this in it’s tracks. I spoke to Luis Toro of Colorado Ethics Watch about this case.


(Crossposted at Huffington Post and Square State)

One of his (Scott Gessler’s) first acts in office was to raise the disclosure level for a political committee from $200 to $5000.

We don’t think the Secretary of State has the authority to do this. Amending the Constitution is something the People of Colorado get to do. It’s not done by the Secretary of State saying “I now decree that the Constitution says $200 is now $5000.

Under the existing law you have to say who gave you the money, and its supposed to be a US Citizen – it could be international money, but you don’t need to go there to see that this is a bad rule (because) you see all the time out of State money influencing Colorado Elections.

Recognize this, $5000 can fund a website, orchestrate press releases, train staff and rent office space. Additionally, it could conceivably allow multiple political committees to fund multiple $5000 campaigns without disclosing who they are or what motives they have.

And Colorado has been a testing ground for many laws passed in other states. Our 2010 election year was the year the ‘personhood’ amendment was test marketed. Now you are seeing that amendment on ballots in numerous states for the 2012 year.

It’s a dangerous loophole to let this out of state and possibly out of country money come in to Colorado and influence our elections without us knowing who they are.

Thanks Colorado Ethics Watch and Common Cause for filing and hopefully, stopping this power grab by Secretary of State Gessler – who is once again proving the Republicans have no shame in their quest to attain more power despite what laws they have to overturn.

And maybe you should call Gessler’s office and let him know how you really feel.


One thought on “CO Sec of State defies constitution, overturns transparency election laws

  1. A court determined that as applied to a small issue committee that made only a very modest amount of expenditures, the state constitution is unconstitutional, and that the state constitutional provision has a chilling effect on speech by purporting to ban constitutionally protected speech.

    It was an “as applied” challenge rather than a facial challenge to the statute as a whole, that prevailed, so the entire issue committee statute is not unconstitutional, but the court ruling, without setting a specific dollar figure, said that all low dollar issue committees are exempt under the First Amendment from the disclosure requirement.

    In the absence of a regulation on point, we operated on the pigs get fat, hogs get slaughtered rule and even quite substantial issue campaigns can claim to believe that they were within the scope of the court ruling.  If there is a regulation crafted in an express attempt to defer to the court ruling, this has some presumptive validity and make the “I thought it was unconstitutional” defense harder in a medium dollar case than it would have been otherwise making the law stronger.

    Also, does Common Cause genuinely believe that issue committees with less than $5,000 of expenditures are really something that creates a way for big money to manipulate the system?  It is hardly a dangerous exception.  

    Neither the legislature nor the Secretary of State would have the power to do anything if the partial unconstitutionality under the First Amendment of the state constitutional provision in question weren’t established, but once it is, surely someone has the authority to clarify what it means.  I suppose that the alternatives would be a declaratory judgment action or an attorney general’s opinion, but somebody ought to be able to tell us what the line is now, even if the people never decide to vote on it again.

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