Court: Gessler overstepped his authority
Colorado Secretary of State Scott Gessler overstepped his authority once again when his office approved several rules last year that reduced or eliminated campaign finance reporting for several types of political committees, the Colorado Court of Appeals ruled Thursday.
A three-judge panel of the court said it rejected Gessler’s assertion that his office had the right to approve the rules because they either were in conflict with other election laws, or the laws the rules were based on were ambiguous.
As a result, the court struck down rules that a lower court had ruled against last year, and overturned one rule that Denver District Judge J. Eric Elliff did like.
“The (district) court respected the secretary’s ‘pragmatism’ in attempting to harmonize Colorado campaign finance laws with judicial decisions through his rulemaking,” appellate Judge David Furman wrote in the ruling, which was joined by Judges Russell Carparelli and Richard Gabriel. “But, the court determined that the secretary lacked the authority to do so.”
The rules that Gessler’s office approved, but the district court rejected, dealt with when political and issue committees must report donations, and what kind of fines they would pay when they don’t.
Gessler’s attorneys tried to argue that his office simply was trying to conform the rules with court precedents and federal election laws.
“Our office’s goal is to protect the right to free speech, so that people can have a voice in our democracy,” Gessler said. “Everyone recognizes that our rules align Colorado law with federal court cases. But (Thursday’s) ruling forces us to apply laws that violate people’s First Amendment rights. We should protect political speech, not stifle it.”
But Luis Toro, executive director of Ethics Watch, one of several left-leaning groups that filed suit against Gessler’s rules, said all were designed to help mostly right-leaning groups hide their campaign contributions, and pay lower fines when they don’t report them in a timely manner.
Toro said the court’s opinion makes it clear that the Legislature and voters write the laws, the courts interpret them and the executive branch, such as Gessler’s office, must promulgate rules to enforce them.
“What the secretary of state was saying is, he got to be all three,” Toro said. “He would be the judiciary to interpret the constitutional law, then he would be the legislature and rewrite the law, and then be the executive to enforce it. The Court of Appeals said he can’t do that. It was a power grab by the secretary of state’s office. This was really a separation of powers case.”
It was the second case in as many years when the appeals court struck down rules approved by Gessler’s office.
In August 2012, the court similarly said Gessler’s office overstepped its authority when it tried to raise the monetary threshold for when issue committees must file campaign finance reports.
That case is pending before the Colorado Supreme Court. Gessler’s office hasn’t said if it will appeal Thursday’s ruling.