Campaign Finance Rule Changes Spark Debate

December 13, 2011

Next year’s elections are likely to break spending records in Colorado, again.  But the rules governing campaign finances are up in the air right now.  On Thursday, the public gets to speak out on a proposed overhaul of the campaign finance rules.  Secretary of State Scott Gessler says these changes are long overdue, but as CPR’s Megan Verlee reports, opponents say Gessler is stepping way beyond his authority, and rewriting Colorado law.

Find information about the Thursday hearing and download a copy of the proposed rule changes here

Here's a transcript of Verlee's report:

Reporter Megan Verlee: Printed out, the proposed rule changes take up a half-inch pile of paper.  Elena Nunez has been flipping through her stack a lot lately. 

Elena Nunez, Colorado Common Cause: "I put orange flags next to things that are bad. So you can see there’s a lot of concern."

Reporter:  Nunez’s copy of the proposed rules bristles with orange tabs.  She’s the head Colorado Common Cause, a voters’ rights group that has a lot of concerns about the changes. 

Nunez:  "The sum effect is to limit the amount of transparency and disclosure in elections.  So whether it’s a candidate campaign, a ballot issue, an outside group, at every turn, these rules would require less frequent disclosure, less meaningful disclosure."

Reporter: For instance, under the proposed rules, an organization wouldn’t have to register as a political committee, and be subject to all the required limitations, unless it spent more than half its budget campaigning for or against candidates.  For groups that work on ballot issues, that threshold would be 30 oercent of their budgets.  Nunez said that means if big companies were willing to buy ads directly, it’s unlikely they’d ever reach those thresholds, leaving voters in the dark. 

Nunez: "There was a local ballot question that had to do with allowing a Wal-Mart to be built and most of the money in support came from Wal-Mart.  Now that’s fine, Wal-Mart has an interest in their expansion.  But it’s important for voters to know where that money’s coming from."

Reporter: Right now, the law doesn’t specify how much organizations have to spend before they start disclosing; instead its judged on a case-by-case basis.  But Secretary of State Scott Gessler says recent federal court rulings require bright line limits like the ones he’s creating.

Secretary of State Scott Gessler: "When people complain about the substance of some of these rules, really what they’re complaining about are the court decisions that have come down that have forced us in many ways to make these changes."

Reporter: Recent Supreme Court decisions have struck down spending limits and narrowed what kinds of ads count as election communications.  Gessler believes that without his proposed changes, Colorado is ripe for a similar legal challenges.

Gessler: "Colorado’s laws, campaign finance laws, have been challenged in federal courts multiple times.  Every time, the state of Colorado has lost, either whole or in part, every time, we’ve lost."

Reporter:  Gessler sees it as his job to get state rules in line with what the federal courts want, and to implement new laws passed by the state legislature.  But critics say these changes go far beyond his authority.  Democratic state Sen. Morgan Carroll wrote one of the bills these changes are supposed to implement.  Her law was designed to require disclosure in Colorado elections of the new corporate spending allowed under the U.S. Supreme Court’s recent Citizens United ruling.  But she says Gessler’s changes reverse her intentions. 

Sen. Morgan Carroll: "I mean, not only is it not my intent, it is fundamentally at odds and contradicts with my intent, which is obviously to get as much disclosure as possible to the voters.  And these go wildly, 180 degrees in the opposite direction."

Mario Nicolais, attorney: "Senator Carroll just wrote a poor bill and she wrote it in a way that fundamentally confused and muddied the waters."

Reporter:  That’s Mario Nicolais.  He’s an attorney at the Republican election law firm where Gessler used to be a partner.  Nicolias now sits on the Secretary of State’s elections advisory panel.  He says these changes to campaign finance law are needed because current rules are so confusing, and so at odds with court precedent, that his clients can’t exercise their first amendment rights to political speech.

Nicolais:  "During the last election cycle I had clients who called and asked whether they could use corporate funds to do certain things, to make communications that expressly advocated.  And I had to tell them, while the U.S. Supreme Court seems to say you can, if you want to avoid litigation, if you don’t want to take the risk, then I wouldn’t.  That is definitionally chilling political speech."

Reporter: Nicolias and other advocates for the changes say they need to happen now so that groups can go into the 2012 campaign season knowing what the ground rules are. But if Gessler adopts the changes in their current form the fight is far from over. Left-leaning groups have identified at least a half-dozen rule changes they would challenge.  Those lawsuits will have to make their way through state and federal courts before there’s any final resolution.  All that means everything could be very much up in the air, just as campaign season heats up.

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