Peg Perl (Harvard Law & Policy Review)- Over the last 10 years, the U.S. Supreme Court has repeatedly struck down campaign finance spending bans and contribution limits while keeping disclosure requirements intact. According to the Brennan Center, the Roberts Court has invalidated six different major provisions in federal and state laws and “significantly reshaped the legal landscape dictating how much big money can flow into political races.”
However, even the Citizens United case almost unanimously (8-1) reiterated the constitutionality of the public disclosure requirements when individuals or corporations run advertisements during the final weeks of the campaign season naming a candidate (“electioneering communications”). As Professor Rick Hasen notes in his 2011 analysis of Citizens United, the Court re-emphasized that the voting public has an “informational interest” in knowing who is speaking about candidates even when those ads avoid specific calls to vote for or against the candidate.
Gabrielle Porter (Canyon Courier)- Groups on both sides of the contentious Jeffco school board recall election have employed funding methods that conceal donors’ identities.
Since efforts to recall conservative board members John Newkirk, Ken Witt and Julie Williams were launched in late June, Jeffco residents have been inundated with information from both sides.
Yesterday, Administrative Law Judge Robert Spencer dismissed Ethics Watch’s lawsuit against Citizens United for failing to report its spending on television ads attacking Governor John Hickenlooper during the last weeks of the 2014 election campaign. Judge Spencer ruled that a settlement agreement between Citizens United and Secretary of State Wayne Williams in a federal lawsuit filed by Citizens United eliminated Ethics Watch’s ability to enforce Colorado campaign finance laws against Citizens United.
In October 2014, Citizens United filed a federal lawsuit against the Colorado Secretary of State, and won a partial injunction against enforcement of electioneering disclosure laws. The ruling by the Tenth Circuit Court of Appeals stated that Citizens United need not disclose spending on the film “Rocky Mountain Heist,” a “documentary” released just before the election, but may be required to disclose spending on television ads for the “documentary” that identified Governor Hickenlooper.
Ethics Watch later filed a complaint against CU for electioneering disclosure violations as to television advertisements that were not subject to the injunction. Then, the Secretary entered into a federal consent decree with Citizens United enjoining the enforcement of electioneering disclosure laws, not only as to the spending that the Tenth Circuit said need not be disclosed, but also to the television ads that were the subject matter of the complaint. Yesterday’s ruling concluded that the Secretary’s settlement with Citizens United prevents Ethics Watch from proceeding with its complaint.
Ethics Watch Director Luis Toro said: “We are disappointed that the Court accepted Secretary Williams’ grant of a one-time ‘get out of jail free’ card for Citizens United only. Even though the Supreme Court case that bears its name said corporations and people must be treated equally, Citizens United was happy to accept a special dispensation that allowed it to ignore the rules that apply to everyone else. Secretary Williams should be fighting to enforce campaign finance laws, not cutting special deals with his conservative allies.”
Today, Ethics Watch Senior Counsel Peg Perl made the following public statement at the Bureau of Land Management public listening session regarding the federal coal program in Golden.
“When some coal companies use corporate subsidiaries to artificially lower royalties paid to the federal and state governments, they not only cheat the citizens, they also gain an unfair advantage over competitors. Regardless of where you stand on the proper standards for power plant emissions, we should all agree that the American people should get fair royalty payments for mining operations on our public land, and that companies who bend the rules should not get an unfair advantage over their competitors who aren’t gaming the system. Any losses the mining company may suffer from a lower priced transaction are more than made up for by profits of the marketing company that flow up the chain to the corporate parent. However, every dollar of royalty revenue that the government should be but isn’t collecting, adds to our deficit and shifts more of the cost of government on to hard-working taxpayers in Colorado.
There is little doubt that the current loophole exploited by some larger coal companies is subject to the influence of money in politics and lobbying. According to public disclosures analyzed by opensecrets.org, in the 2014 election cycle the coal mining industry spent $9.8 million on lobbying for favorable treatment under federal programs. The coal industry is also a major player in campaign contributions for members of Congress, giving over $26 million in candidate contributions in the 2012 and 2014 cycles alone (opensecrets.org). The public record in the coal valuation rulemaking includes a letter from fifteen members of Congress urging the DOI to slow down reform efforts – a position consistent with larger coal companies that benefit from the current loophole. Each of those legislators has received thousands of dollars in contributions from the coal industry since 2012, including all three of the Colorado delegation members who signed that letter. Such a large checkbook wields influence in Congress (opensecrets.org).
It is hard for smaller companies and the citizens who suffer the effects of lower royalty payments to be heard when big money is spent in politics and lobbying to enrich profits of large coal companies. We hope you use this listening session to hear the voices that cannot spend millions on campaign contributions and Washington lobbyists. The BLM should ignore the calls to go slow and fix the coal royalty loophole so that all coal companies pay fair market prices for using our public lands for their private profit.”
DENVER – Today, United States District Court Judge Robert Blackburn dismissed a lawsuit filed by Rocky Mountain Gun Owners (RMGO) and Colorado Campaign For Life (CCL) against Ethics Watch. RMGO and CCL filed the suit against Ethics Watch in response to Ethics Watch’s successful lawsuit against the two groups for failing to disclose electioneering spending in two Republican state Senate primaries in 2014.
The Court rejected RMGO and CCL’s argument that Ethics Watch’s complaint against them amounted to an invasion of their First Amendment rights because Ethics Watch allegedly has a pattern of targeting groups based on the content of their speech. From the order:
There is no basis to conclude that the complaint brought by CEW was frivolous or was undertaken without a reasonably objective hope of success. The complaint was found to be valid. The plaintiffs claim CEW targets only conservative political groups. If so, the plaintiffs appear to argue, the complaint of CEW against the plaintiff was motivated by retaliation for political speech. Based on the CEW website, the plaintiffs claim to show a record of CEW’s efforts to target Republicans with complaints and litigation.
As CEW notes, however, this record of the actions of CEW is incomplete. Notably, by the measure of the plaintiffs, each of the plaintiffs has been subject to a complaint initiated by CEW on only one occasion. The evidence cited by the plaintiffs is not sufficient to justify further discovery on the issue of bad faith or harassment of the plaintiffs by CEW. Notably, the plaintiffs did not raise contentions of bad faith or harassment in the state proceedings. The CEW complaint at issue here was found to be valid in the state proceeding. Nothing in the evidence cited by the parties shows that CEW pursues invalid complaints as a method of harassment and/or in retaliation for certain types of political speech. There is no evidence of unjustified and oppressive multiple complaints by CEW.
Ethics Watch Director Luis Toro said: “As a nonpartisan watchdog group, Ethics Watch files complaints for violations of the law on money in politics based on the evidence we can present in court to obtain a successful result. We are pleased that a federal judge has reviewed the evidence and confirmed that we do not target groups based on the content of their speech.”
- Click here to read Judge Blackburn’s decision.
- Click here to read about Ethics Watch’s successful campaign finance lawsuit against RMGO and CCL.
- RMGO v. Ethics Watch Order Granting Motion to Dismiss by Colorado Ethics Watch:
Today, Judge A. Bruce Jones of the Denver District Court ruled that Ethics Watch’s suit for review of the Independent Ethics Commission’s decision to dismiss its complaint against Elbert County Commissioner Robert Rowland may proceed.
The Ethics Commission argued that its dismissal was not reviewable because it purportedly had “no legal effect” and because Ethics Watch allegedly suffered no harm from the dismissal.
The court dismissed the first argument as “Orwellian,” and as to the second, ruled that Ethics Watch suffered injury because no hearing was held on its complaint and because the Ethics in Government Amendment must be interpreted to authorize judicial review of dismissals of complaints by the IEC.
In a case filed by Ethics Watch, a Colorado administrative judge has ordered Colorado Campaign for Life (CCL) and Rocky Mountain Gun Owners (RMGO) to pay $8500 each in fines to the state and file disclosures of spending and earmarked contributions for mailings that attacked and supported candidates in two Republican state Senate primaries in June 2014.
Administrative Law Judge Robert Spencer agreed with Ethics Watch that mailers sent by CCL and RMGO to Republican primary voters attacking candidates Lang Sias and Mario Nicolais and supporting candidates Laura Woods and Tony Sanchez were “electioneering communications” under Colorado law because the two groups spent over $1000 each to contact voters with mailers naming identified canddates in the last thirty days before the primary election. The two groups were fined $8500 each, representing $50 per day from the date disclosures were required (on July 1) through the filing of the suit. [Correction: The fine was $8450 each.]
CCL and RMGO hired a Washington, DC-area law firm to file a federal lawsuit against Ethics Watch and the Colorado Secretary of State to block the hearing, argung that Colorado’s disclosure law is unconstitutional. On December 16, federal judge Robert E. Blackburn allowed the case to proceed in state administrative court, noting that Judge Spencer has jurisdiction to resolve at least some of CCL’s and RMGO’s First Amendment challenges to Colorado law. In his ruling, Judge Spencer rejected all of CCL’s and RMGO’s arguments that the First Amendment allows them to electioneer without obeying Colorado disclosure laws about money in politics.
“The First Amendment is meant to help an informed people govern themselves. It is not a tool for special interests to manipulate the political process in secret,” said Luis Toro, Director of Ethics Watch. “It is time for Rocky Mountain Gun Owners and Colorado Campaign for Life to pay their fines and obey the law like everyone else who spends money to electioneer in the last days before an election.”