Campaign Finance Law in Colorado, 0617 COBJ, Vol. 46 No. 6 Pg. 35
Author | Christoper Jackson, J. |
Government Counsel
Christoper Jackson, J.
Campaign Finance Law in Colorado
Candidates are already gearing up for Colorado’s 2018 election, which promises to have several contested statewide races. This article analyzes the current state of Colorado’s campaign finance system.
What distinguishes the campaign finance issue from just about every other one being debated these days is that the two sides do not divide along conventional liberal/conservative lines.
James L. Buckley
The 2016 presidential election may have wrapped up just a few months ago, but candidates are already gearing up for the 2018 election season. At the federal level, Republicans currently control the presidency and both houses of Congress, but the Democrats are preparing to mount a significant challenge. The Senate may be a tough hill to climb,1 but claiming a majority in the House is probably within their reach.2
Coloradans have more than just federal offices to look toward this election season. Not only are most of the state’s General Assembly members up for reelection (17 of the Senate’s 35 seats and all 65 seats in the House),3 but the statewide offices are as well—including the Governor and Lieutenant Governor, Secretary of State, Attorney General, and Treasurer.4 The Governor’s race is well underway: declared Democratic candidates include businessman Noel Ginsburg, former State Senator Mike Johnston, former Treasurer Cary Kennedy, and current U.S. Representative Ed Perlmutter. Republican candidates include Arapahoe County District Attorney George Brauchler, Larimer County Commissioner Lew Gaiter, and former State Representative Victor Mitchell. Treasurer Walker Stapleton is very likely to run, and Attorney General Cynthia Coffman may be mulling a race as well. The races for Attorney General and Treasurer are alsoheating up, with several declared candidates from both major parties.5
Each of these races will require substantial financial resources to get off the ground. And while laws like the Federal Election Campaign Act and the Bipartisan Campaign Reform Act govern federal offices,6 Colorado’s elected officials have their own set of regulations to contend with.7 Politicos of all stripes—and most important, their lawyers—will benefit from an analysis of the current state of Colorado’s campaign finance regime.
A Complex and Evolving Area of Law
The law surrounding campaign finance regulations has for the last several decades pulled in two different directions. On the one hand, the U.S. Supreme Court has recognized that the First Amendment imposes substantial limits on the government’s power to regulate the use of money in elections: “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”8 As a result, “political speech must prevail against laws that would suppress it, whether by design or inadvertence.”9 On the other hand, reformers contend that “regulation is necessary to preserve the integrity of the Republic,”10 and that campaign finance laws work by “promoting equality, [] removing distortion, and [] eliminating corruption.”11 As President Taft once wrote to Teddy Roosevelt, “I would like to have an ample fund to spread the light of Republicanism, but I am willing to undergo the disadvantage to make certain that in the future we shall reduce the power of money in politics for unworthy purposes.”12
As a practical matter, campaign finance law has always been a bit of a morass. Among other things, the law has recognized important distinctions between candidates, political parties, and donors; between corporations and individuals; between hard and soft money; and between contributions and expenditures. The U.S. Supreme Court has compounded the confusion by handing down several opinions over the last 10 years that have wrought major change in the campaign finance arena—most notably 2010’s Citizens United v. FEC,13 which overturned portions of decisions the Court had issued only a few years before.14 Legislators and lawyers have been scrambling to survey the new landscape and revamp the law in a way that is consistent with current First Amendment jurisprudence. The Colorado General Assembly is currently considering a number of bills that would amend the FCPA.
Seven years after Citizens United, the picture is clearer, though hardly in perfect focus. While federal law has its own twists and turns, Colorado has five major sources of authority: (1) Article XXVIII of the state constitution,15 (2) the state’s Fair Campaign Practices Act (FCPA),16 (3) rules promulgated by the Colorado Secretary of State,17 (4) case law from Colorado’s courts interpreting Article XXVIII and the FCPA, and (5) the U.S. Constitution (the First Amendment in particular has in recent years substantially curtailed the ostensible reach of Colorado law). With five competing authorities vying for influence over a single subject matter, political players are subject to an often byzantine web of laws, rules, regulations, and standard practices.
Nuts and Bolts
Colorado law recognizes a number of categories that electoral participants might fall under. There are candidates, political organizations, independent expenditure committees (IECs), issue committees, political committees, small donor committees, candidate committees, political parties, and lobbyists. The key question political players should keep in mind is, how are they participating in the electoral process? These classifications are defined by the kinds of activities the person or group engages in. For example, a candidate is a person “who seeks nomination or election to any state or local office,” including a judge or justice of a state court.18 A person officially becomes a candidate once she “has publicly announced an intention to seek” the office “and thereafter has received a contribution or made an expenditure in support of the candidacy.”19 An IEC, in contrast, is a group of “one or more persons that make an independent expenditure” of at least $1,000 or collect at least $1,000 “for the purpose of making an independent expenditure.”20 And an issue committee is a group of persons who have...
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