One legal hurdle down, about a dozen more to go
By Marianne Goodland
Last week’s ruling that Tom Tancredo could stay on the ballot as a gubernatorial candidate meant Secretary of State Bernie Buescher had one less legal case on his plate. That only leaves about another dozen left.
Buescher recently sat down with The Colorado Statesman to discuss the issues surrounding this and the other lawsuits, some filed by the state, and others filed against his office.
Buescher heads into November facing his first major election since his appointment as Secretary of State last year. Gov. Bill Ritter named Buescher to the post in January 2009, after then-Sec. of State Mike Coffman won election to Congress in the 6th District a couple months earlier.
Secretary of State Bernie Buescher looks out over the Front Range from a hay wagon at the Rain Dance Ranch in July.
Buescher previously served two terms in the Colorado General Assembly, including serving as chair of the Joint Budget Committee. His appointment to the Secretary of State job followed an unexpected defeat in the 2008 election to now-Rep. Laura Bradford, R-Grand Junction, a loss that ended an all-but-certain ascension to Speaker of the House. As a legislator and in his position as chair of the JBC, Buescher, a lawyer by training, spent many hours studying (and writing) Colorado statutes.
But it’s his current job that has him constantly reading statutes; he recently said he hasn’t read this many statutes since he was in law school.
A lawsuit against Arapahoe County is likely the last one that will have any impact on the general election in November, to which Buescher breathes a sigh of relief. But it’s been a busy year for him, and for the attorneys who represent the Secretary of State.
This year, Buescher has dealt with two cases tied to statutes regarding unaffiliated candidates, both initially filed by La Plata County Commissioner Joelle Riddle and joined by Rep. Kathleen Curry, I-Grand Junction, and both in U.S. District Court for Colorado. The lawsuits sought to address issues related to campaign finance and ballot access for unaffiliated candidates. In June, Judge Marcia Krieger ruled in favor of Buescher and co-defendant Linda Daley, clerk of La Plata County on the ballot access issue. Under state law, a person who wants to run as an unaffiliated candidate must disaffiliate from a political party within a specific time before the next general election. Curry and Riddle sought an injunction against that law, stating that it violated their 1st Amendment and 14th Amendment rights. That case is now on appeal with the 10th Circuit Court of Appeals. In the second case, last week, Judge Phillip Brimmer denied a request for an injunction against the state by Riddle, Curry and others that challenged Buescher’s interpretation of state law as it applied to campaign donation limits for unaffiliated candidates.
Buescher’s first case, and one still working its way through the courts, is one left for him by Coffman and was originally filed in 2008. In Common Cause v. Buescher, also in U.S. District Court for Colorado, Common Cause challenged Coffman’s purging of voters from voter registration lists and to prevent further purges. Buescher explained that the issue arose when the secretary of state set up the SCORE statewide voter registration database. Buescher said when all voting records from all of Colorado counties were put together, they had 5.7 million voter records, almost double the number of residents in Colorado. Many of the records were from inactive voters or duplicates, and when Coffman began deleting the duplicate active files, Common Cause alleged Coffman was purging files. Buescher said that all but two issues raised by the lawsuit have been resolved. “I can say to voters and citizens today that we have merged all of the duplicate files,” he said.
And then there’s a lawsuit filed by the Independence Institute, challenging the constitutionality of House Bill 09-1326, which required petition circulators to be residents of Colorado and prevented petition circulators from being paid on a per-signature basis. That case, which also began in the U.S. District Court, has already headed to the U.S. Supreme Court.
Buescher is not only a defendant in many of the court cases; he also is a plaintiff in one. It’s an effort to force Arapahoe County to provide boxes for dropping off mail-in ballots at all polling locations for the November election. Arapahoe County is the only county not complying with the order, which stems from HB 09-1186. That case is scheduled for initial hearing in Arapahoe County District Court next week.
There’s also the matter of the trial, still going on in Denver District Court, over whether Doug Bruce had a hand in the three anti-tax ballot initiatives to be decided by voters in November. Buescher pointed out he is a plaintiff in that case, too.
He noted that back in June, Administrative Law Judge Robert Spencer fined the proponents of the three measures for failing to disclose who funded their petition drive and ordered them to file the required disclosures with Buescher’s office. While the defendants filed an appeal of Spencer’s ruling, Buescher noted they never sought a stay of his order. As a result, the fines now exceed $17,000 according to an Aug. 12 invoice from the Secretary of State’s office.
“I’ve had it argued to me that when proponents fail to do disclosures, their initiatives should not be on the ballot. That may have constitutional problems,” he said. “I’m not satisfied with the tools the Legislature has given this office to enforce repeated and willful campaign violations.” Buescher said he already is looking for ways to resolve the problem, and has a package of reforms ready to go to the General Assembly next year to address this and other problems. “It bothers me deeply when people flaunt the law,” he said.
Another case that Buescher is watching, although not named as a defendant, is also in Spencer’s court: Clear the Bench Colorado v. Colorado Ethics Watch. The case centers on Buescher’s advice to Clear the Bench that they should file as an issues committee; Ethics Watch believed the organization should be a candidate committee because it advocated against specific candidates. Buescher said the big difference is in campaign donation limits: candidates have very specific donation limits, where issues committees can take unlimited donations.
Among the other matters on Buescher’s radar: the Citizens United case decided earlier this year by the U.S. Supreme Court. The ruling by the 5-4 court said that corporate and labor union funding of independent political broadcasts could not be limited under the First Amendment. The Court struck down a portion of the McCain-Feingold Act that barred corporations and labor unions from purchasing independent electioneering communications.
In May, the General Assembly passed SB 10-203, which requires that expenditures exceeding $1,000 must be disclosed through registration as an independent expenditure committee (also known as an electioneering committee) with the secretary of state.
The Legislature made a good effort at disclosure with SB 203, Buescher said. But that still leaves a gaping hole in disclosures by 527 and 501(c)(4) committees, he said, a weakness that was also pointed out by lawmakers during the session.
“We got into difficult discussions on whether the statute on electioneering overrides the constitutional provisions on coordination,” Buescher said, adding that it’s his belief that a statute can’t change the constitution. “But there is a lack of clarity on that issue and we will have to ask the Legislature next year for clarification on that issue,” he said. That “lack of clarity” led to an interesting problem this year — the Logan County Republican Party filed as an electioneering committee, which would allow the committee to accept unlimited contributions. The campaign finance team in the Secretary of State’s office agreed that was not what was intended, and the Logan County GOP eventually withdrew that registration. Logan County GOP First-Vice Chair Linda Wilson said the party had gotten incorrect advice and the filing was a mistake.
Buescher said the electioneering law also has been confusing for candidates, who believe they should register as electioneering committees, and that flies in the face of Amendment 27, which limits candidate contributions.
Buescher said the common thread in all of this is that his job is to enforce the constitution and the laws of Colorado, and these days, he’s doing a lot of that in court. “As an attorney, I’m frustrated by the belief that we make law by going to court,” he said. “Courts used to be reluctant to declare statutes unconstitutional. That’s changed.”