Ritter asks Supreme Court for clarification on campaign finance laws

By Anthony Bowe

The Colorado Supreme Court will begin accepting opening briefs from interested parties on March 8 regarding state campaign laws thought to be invalidated by a U.S. Supreme Court ruling last month.

The Court’s response came a day after Gov. Bill Ritter submitted a set of questions seeking clarification on independent expenditure and electioneering laws.

The Supreme Court’s 5-4 ruling in the Citizens United v. Federal Election Commission on Jan. 21, overturned decades of campaign finance precedent restricting independent expenditures and direct electioneering by corporations and labor unions. Those groups can now spend an unlimited amount of money to support or oppose a candidate before an election using multiple forms of advertising.

Ritter’s two questions to the court ask to weigh-in on laws created by Colorado’s Amendment 27, approved by voters in 2002. The amendment outlawed corporations and labor unions from spending money supporting or opposing candidates and barred them from funding electioneering communications.

House Majority Leader Paul Weissmann, D-Louisville, sponsored a resolution Wednesday to support Ritter’s court inquiry. It passed both houses of the General Assembly.

Secretary of State Bernie Buescher drafted the questions presented by Ritter. Buescher joins state officials and politicians in his hopes the court inquiry will lead to clarification of Colorado’s election laws before election season advances any further.

Precinct caucuses and county assemblies begin next month and party primaries are in August.

“With the election cycle already underway, it’s imperative that our state and local candidates and the voters have a clear understanding of the laws governing campaign finance,” Buescher said in a statement from his office.

Ritter urged the court to move quickly in reaching resolution as several parties threaten to sue the state.

“A delay in resolving the questions raised by Citizens United will cause confusion and uncertainty regarding fundamental First Amendment protections. Given that election season has already begun, the public impact of continued uncertainty will be substantial and ongoing,” Ritter said in his request to the court.

“Until the impact of Citizens United is clarified, local and statewide candidates, as well as the potential sources of independent expenditures, may face uncertainty as to the legality of their campaign activities under Colorado law.”

Meanwhile, the first arguments regarding the effects of Citizens United on state law have been filed with the Colorado Court of Appeals. Colorado Ethics Watch is appealing a lower court dismissal in a complaint it filed against two 527 organizations from the 2008 election cycle.

In its supplemental brief to the Appeals Court, Ethics Watch alleges that both the Senate Majority Fund LLC (SMF) and the Colorado Leadership Fund LLC (CLF), violated express advocacy laws when they sponsored political direct mail ads advocating for several Republican candidates and TV ads about District 19 senate candidate Libby Szabo, a Republican who is now running for a House seat. Express advocacy means to fund an ad openly supporting or detesting a candidate.

Ethics Watch is using the Citizens United decision to argue that expressed advocacy now includes any ad presumably for or against candidate. They argue the law has changed from when express advocacy meant using the “magic words” of “vote for” or “against” a particular candidate.

In a joint brief the SMF and CLF said, as designated 527 organizations, that both groups were protected since neither exchanged money with Szabo nor collaborated with any candidates. The groups also called Colorado Ethic Watch’s definition of expressed advocacy clunky, broad and non-relevant to Colorado law.

“[Colorado Ethic Watch’s] case was exceedingly weak at the outset, by relying on everything except Colorado law to interpret the meaning of ‘expressly advocate,’” SMF and CLF said in a joint supplemental brief.

Additional court battles are brewing as the state’s Republican Party joins several corporate groups eyeing the idea of suing the state if campaign laws aren’t quickly resolved, said a Denver lawyer who represents the state Republican Party.

“I think we’re still looking at the potential for bringing a lawsuit,” said Richard Westfall, a partner with Hale-Friesen, and treasurer for the state’s GOP. “I don’t know if the interrogatories address the full array of the concerns that need to be addressed in the wake of the court’s decision.”

Westfall said the Supreme Court has complete discretion for how it responds to interrogatories.

In order to save the state money accumulated from lawsuits challenging Colorado election law, Buescher moved quickly to resolve contradictions with revised federal law, said his spokesman. Following the Citizens United decision he met with a special advisement committee composed of representatives from both Democrat and Republican parties, interest groups and campaign finance experts to help draft the questions for the court.

“It is difficult for legislators and my office to consider legislation and policy issues without knowing the answer to these crucial questions,” Buescher said.

According to Buescher’s office, “Colorado’s constitution authorizes the legislature or the governor to seek guidance from the state’s Supreme Court justices related to pending legislation or other important questions in rare circumstances.” Ritter called the circumstances for his request unique and said they warrant the Court’s “exercise of jurisdiction.”