Gessler trying to make state comply with court cases, U.S. Constitution

Colorado Secretary of State Scott Gessler certainly seems to be an interesting figure to some folks, and there is no doubt that his “bull in a china shop” approach to his job of dealing with election law can be a little distressing to some. However, he is keeping his campaign promises of shaking up and shaping up how elections are conducted and monitored in Colorado. This is a good thing.

Colorado, like many states, has moved to the point where what was intended as meaningful campaign finance reform has been translated into a trap for unwary grassroots movements; intimidating small organizations of citizens from forming, in the most basic situations, to put forth an opinion on policy issues.

In that context let’s take a look at the latest cause for alarm from many of our friends on the political left.

Recently, the secretary sought to compose new rules concerning campaign finance reporting by issue-oriented committees, by raising the amount of money necessary to trigger the financial reporting requirements. This did what most political decisions do these days — created a lawsuit.

It was filed in Denver District Court, where most things concerning state government actions are filed since that’s where the state government is nominally located.

A Denver District Judge rejected the secretary’s attempt at new rules and took the opportunity to personally blast Gessler, interestingly enough, when he wasn’t even there.

Having a judge berate a Republican office holder is quite exciting to southpaw pundits everywhere because, as we know, judges that rule your way are Copernican geniuses and judges that find the other way are politicized ne’er-do-wells.

This decision, like most that originate in the Denver district courts for legislative matters, will certainly be appealed — the judge having found that the Colorado secretary of state does not have the authority to change campaign-finance requirements so fundamentally. The court determined that such changes amounted to a change in law rather than a change in rules.

Let’s take a quick look at the underlying federal case in Colorado that caused Gessler to try to change the rules in order to comply with the federal circuit court’s findings.

The case is Sampson v. Buescher, and it was decided in November 2010 concerning a group of homeowners in Parker.

The homeowners had come together to oppose their annexation by the town. They put together an enormous war chest of a little less than $1,000 to try to fight the city’s efforts before opponents attacked them for failing to register as an issue committee.

Colorado law requires that any time two or more people spend more than $200 for or against a ballot issue, they must register with the state, set up a separate bank account, appoint a registered agent and file campaign contribution reports for any donations over $20.

The annexation opponents took the case to federal court, saying that their constitutional rights under the First Amendment guarantee of freedom of association were seriously hampered by Colorado’s campaign finance law as applied to these issue committees.

The courts agreed, including the 10th Circuit Court of Appeals. In a 3-0 decision the appellate court said, “We agree that Colorado law, as applied to plaintiffs, has violated their constitutional freedom of association. There is virtually no proper governmental interest in imposing disclosure requirements on ballot initiative committees that raise and expend so little money, and that limited interest cannot justify the burden that those requirements impose on such a committee.”

The court also found that ballot initiative groups in general might not possess the same justifications for requiring extensive disclosures as an election involving a candidate, where donations might be construed as affecting that candidates decision-making.

The only place to appeal that federal court decision would be to the United States Supreme Court. I wouldn’t hold my breath if I was the other side.

Gessler, at the very least, was trying to come up with a solution to put the state in compliance with the U.S. Constitution. You can argue about his methods but in this case, it’s hard to argue with his motivation.

Rick Wagner offers more thoughts on politics at his blog, The War on Wrong.


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