Tcl - Public Moneys and Ballot Issues Under the Fair Campaign Practices Act - September 2005 - Government and Administrative Law News
| Publication year | 2005 |
| Pages | 81 |
| Citation | Vol. 34 No. 9 Pg. 81 |
2005, September, Pg. 81. TCL - Public Moneys and Ballot Issues Under The Fair Campaign Practices Act - September 2005 - Government and Administrative Law News
September 2005
Vol. 34, No. 9 [Page 81]
Government and Administrative Law News
Public Moneys and Ballot Issues Under The Fair Campaign Practices Act
by Dee P. Wisor, Paul Wisor
This column provides information to attorneys dealing with various state and federal administrative agencies, as well as attorneys representing public or private clients in the areas of municipal, county, and school or special district law.
Column Editors:
Carolynne C. White, of Brownstein Hyatt & Farber, P.C. - (303) 223-1197, cwhite@bhf-law.com; Brad Bailey, Assistant City Attorney, City of Littleton - (303) 795-3725, bbailey@littletongov.org; Tiffanie Bleau,Denver, an attorney with Light,Harrington & Dawes, P.C. - (303) 298-1601, tbleau@lhdlaw.com
This month's article was written by Dee Wisor and Paul Wisor. Dee is a member of the Public Finance Department of Sherman & Howard L.L.C. - (303) 299-8228, Dwisor@sah.com. Paul is a 2005 graduate of the University of Colorado School of Law and is clerking for Judge Arthur Roy of the Colorado Court of Appeals - (303) 886-1301, Paul.Wisor@gmail.com. The authors acknowledge the assistance of Geoff Wilson, General Counsel of the Colorado Municipal League, and Kim Crawford, an associate in the Public Finance Department of Sherman & Howard L.L.C.
This article summarizes the limitations on the expenditure of public moneys on ballot issues under Section 117 of the Fair Campaign Practices Act.
Enacted in 1974, the Fair Campaign Practices Act ("FCPA")1 governs campaign finance in Colorado. Section 117 of the FCPA ("Section 117") prohibits Colorado governments from contributing to a campaign for public office or expending public moneys or making contributions to urge electors to vote in favor of or against most ballot issues.2
The FCPA governs many areas of election law. This article focuses on the general proscription of Section 117 regarding the expenditure of public moneys to urge the voters to take a position on ballot measures. The article discusses the six exceptions to this general proscription, and describes the activities that governmental bodies, government employees, and elected officials may engage in under the FCPA. Finally, this article discusses activities that may raise First Amendment concerns, the FCPA complaint procedure, and remedies under the FCPA.
As discussed later in this article, a dispute under the FCPA comes before an Administrative Law Judge ("ALJ") after a complaint has been filed with the Secretary of State's Office and the Secretary of State's Office has referred the matter to the ALJ. Many of the opinions discussed in this article are ALJ decisions. Although this article focuses on the proscription of the statute and remedies for a violation, a complaint filed in the weeks immediately prior to the election will certainly produce news stories that could affect the election result, regardless of whether the complaint is determined to have merit.
Basic Provisions
Section 117 limits the ability of Colorado governments to influence the outcome of elections. Its provisions apply to a wide range of governmental bodies, including any "agency, department, board, division, commission, or council of the state or any political subdivision thereof."3 The FCPA's general rule prohibits any of these bodies from making a contribution to a campaign4 for public office, and from expending public moneys to urge electors to vote for or against any ballot issue or referred measure.
Thus, governments are restricted in their ability to undertake many election-related activities. The rule makes it impermissible for governments to use public moneys to produce campaign material designed to increase public support for a particular ballot measure.5 Governments are prohibited from using public moneys to support a ballot measure even where the measure is not mentioned by name in the supporting material.6 It also is impermissible for a government to produce a regular report, such as an economic forecast, and advocate a particular position within that report if the report was produced using public moneys.7
The use of public moneys can occur even when they are not directly spent to urge voters to take a position in an election. Examples include the use of publicly owned facilities or equipment, including meeting rooms, phones, fax machines, copiers, computers, Internet access, and vehicles.8 Although Section 117 does not address the issue, it appears that no violation of Section 117 occurs when persons both supporting and opposing a measure have equal access to publicly owned facilities or equipment on the same terms and conditions.
Definitions
To understand the basic provisions of Section 117, certain terms should be defined. "Contribution" is defined by the Colorado Constitution as any payment, loan, pledge, gift, or advance of money to any candidate or issue committee.9 The definition includes any payment made to a third party for the benefit of a candidate or issue committee. Further, the definition of a "contribution" includes anything of value given directly or indirectly to a candidate for election purposes. However, services provided without compensation by volunteers do not constitute a contribution.
"Public moneys" is not defined by either the FCPA or the Colorado Constitution. The Colorado Supreme Court has interpreted the term "public moneys" in the context of Section 117.10 The General Assembly's inclusion of the phrase "from any source" when referring to public moneys demonstrates that the concept of public moneys is expansive.11 Thus, for the purposes of Section 117, any moneys contained in the account or fund of the state or any of its political subdivisions constitute public moneys.12
Effectiveness
Section 117 does not prohibit public expenditures on every issue on the ballot; rather, it specifically prohibits contributing to campaigns and expending money on any statewide ballot issue,13 local ballot issue,14 referred measure,15 or properly certified measure for the recall of an elected official.16 Typically, Section 117 does not take effect until ballot measures have been submitted for their titles to be designated and fixed.17
Confusion over the application of Section 117 often arises with local ballot measures, because Section 117 does not take effect until a measure has been submitted for the purpose of having a title designated and fixed pursuant to CRS § 31-11-111 ("Section...
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