High court strikes down ban on campaign donations

By Anthony Bowe
THE COLORADO STATESMAN

The Colorado Supreme Court on Monday captured headlines for the second time this month regarding election finance laws when it revoked Amendment 54 approved by 51 percent of voters in 2008.

The state’s high court struck down Amendment 54, a voter-approved initiative that disallowed government contractors with sole-source contracts of $100,000 or greater from making election contributions. Contractors’ immediate family members were also forbidden from making contributions.

The Supreme Court, in a 4-1 decision, found Amendment 54 to be overbroad and unsalvageable on multiple levels, according to the majority opinion written by Associate Justice Nancy Rice.

“In conclusion, despite the constitutionality of some limited phrases and portions, we hold Amendment 54 ‘so incomplete or riddled with omissions that it cannot be ‘salvag[ed]... as a meaningful legislative enactment,’” the decision said.

Associate Justices Nathan Coats and Allison Eid recused themselves from the decision.

Only two weeks ago the Supreme Court announced it would begin taking opening briefs in a case that promises to shed light on laws thought invalidated by last month’s U.S. Supreme Court ruling in Citizens United v. FEC. That decision allows corporations and unions to use independent expenditures to sponsor ads for or against candidates in national campaigns. Weeks following the ruling, Governor Bill Ritter and Secretary of State Bernie Buescher asked the court to review the legality of Colorado’s campaign laws before November elections.

Tom Lucero, a CU regent and the leader of Amendment 54’s 2008 campaign, said the intent of the initiative was to encourage competitive government bidding and to eliminate pay-to-play politics. The Amendment sought to open up no-bid contracts to competition. Under the amendment, business owners could contribute to campaigns only if their winning bid was against a minimum three competing bids.

Lucero, a Republican congressional candidate facing primary opponents Rep. Cory Gardner, R-Yuma, Dean Madere and Diggs Brown in the 4th Congressional District currently represented by Democrat Betsy Markey, said it’s “no surprise” how the court ruled.

“We could see the writing on the wall and just the way the case was coming down the pipeline,” Lucero said. “Even though it wasn’t a surprise, it’s still a disappointment that the Supreme Court would overrule the will of the voters of the state of Colorado, who I think spoke pretty loud and clear, just as candidate Obama was doing in 2008 about the need to bring about greater transparency.”

The court’s decision upheld a district court ruling that suspended Amendment 54 in July.

“The district court, having heard the evidence and the legal argument, really left very little room for the state to resuscitate Amendment 54,” said Mark Grueskin, the lead counsel for one group of plaintiffs. “Really it was the district court’s analysis that was most helpful.”

The Supreme Court’s decision repeatedly used the words “vague” and “overbroad” to describe various restrictions placed against unions, non-profits and no-bid stakeholders under Amendment 54. The justices ruled the amendment was too vague in defining the “immediate family” of no-bid contractors, and overbroad in limiting non-profit directors and entire union memberships from participating in political speech for the duration of a no-bid contract and two years thereafter. Also overbroad was a provision that said contractors were barred from making campaign contributions to any political race in the state, regardless of which government agency the contract was with.

“Amendment 54… is undoubtedly a restriction on political speech,” stated the decision.

Unions were placed under the ban based on an Amendment 54 provision that included collective bargaining agreements. The court ruled that the provision was overbroad and violated the First Amendment and 14th Amendment rights of unions.

“It’s not possible to define a collective bargaining agreement between a school district and an employee organization as a sole contract,” said Deborah Fallin, spokeswomen for the Colorado Education Association, which represented the School District 14 teachers union, one of the plaintiffs. “Of course a collective bargaining agreement is not put out for bid. It’s two parties agreeing to do things in certain ways. The court said that doesn’t even qualify as a sole contract.”

Fallin said teachers under contract in the state would not have been allowed to make contributions under the amendment.

Other notable plaintiffs included Daniel Ritchie, the chairman and CEO of the Denver Center for the Performing Arts, the Aurora fire fighters labor union, the Children’s Hospital non-profit and the Colorado Seminary, which owns and operates the University of Denver.

Attorney General John Suthers defended Amendment 54 on behalf of Governor Bill Ritter and the state. His office said it spent over $97,000 defending the measure despite slim odds that the court would side with voters.

“We knew it was going to be a tough case to make, so the Supreme Court’s decision yesterday was not unexpected,” said Mike Saccone, attorney general’s office spokesman. “When the voters pass a constitutional amendment or when the voters pass any statutory amendment, we take it very seriously. We need to defend what the voters intended to the best of our best abilities. And we believe throughout this case we made persuasive arguments.”

The court also wiped the idea of a monitoring system that would publicly list the state’s no bid contracts.

“It’s back to business as usual. If you have a no-bid government contract you can continue to peddle the influence,” Lucero said.

Associate Justice Alex Martinez was the only dissenting vote. He agreed Amendment 54 had constitutional deficiencies but said it could still survive under a slimmer scope.

“If the problematic language were to be severed, it would be ‘fairly possible’ to interpret the remaining provisions in a manner that renders the entire Amendment constitutionally valid,” Martinez said.

Clean Government Colorado, the group that championed the ballot initiative and was represented as a friend of the court, sent an email to supporters Tuesday with a bold headline that read in all caps, “The battle is not lost!” The email promised the group would continue the fight over Amendment 54’s legitimacy.

But the battle is over according to attorney Grueskin, with the Denver law firm Isaacson Rosenbaum, P.C.

“You can’t intervene in a case once it’s over. The legal issues have been resolved,” he said. “I have no idea what sort of contrivance would be used to try and force the district court to waste it’s time and tax payer money on another judicial proceeding on a really poorly drawn amendment.”

Clean Government’s attorney, Robert Liechty, said the group is considering taking additional challenges back to the district court for trial.

“The proponents of this, they realize that they were on the cutting edge of law around the country. They realized this, but thought it was worth the effort,” Liechty said. “We’re just sorry the Supreme Court didn’t see it that way to allow it to stand.”

The state’s Republican and Democratic parties were equally pleased with the decision coming less than a month before party caucuses and several months before Election Day.

“Ultimately I don’t think we need any finance laws,” said Dick Wadhams, chair of the state Republican Party. “I think we ought to allow any amount, from any entity, at any time. Just require full, timely, immediate disclosure in this day of the Internet and let the people decide what is appropriate or not.”

The state Democratic Party executive director, Jennie Peek-Dunstone, said current campaign finance laws are already sufficient.

“The [Amendment 54] restrictions had seemed to be pretty egregious and I guess the courts agreed. Allowing them to give under current laws seems to fit more with allowing people to have free speech,” Peek-Dunstone said.

Anthony@coloradostatesman.com