Gessler rulemaking on campaign finance raising eyebrows

The Colorado Statesman

On June 14, Secretary of State Scott Gessler will hold a rulemaking hearing to temporarily fix a conflict between the new primary date in June and campaign finance reporting requirements. But critics say the fix goes much further than it needs to, and it is a problem that will have to be dealt with in the next legislative session.

The issue involves the new primary date enacted under Senate Bill 11-189, to be signed into law on May 27 by Gov. John Hickenlooper. The primaries, beginning in 2012, would move from the second Tuesday in August to the last Tuesday in June. A whole host of related election activities also would move up under SB 189, in order to meet guidelines established under the federal Military and Overseas Voter Empowerment (MOVE) Act.

A conflict with the new primary date surfaced during the legislative session, and that has to do with campaign finance reporting. In an election year, those reports are to be filed every two weeks, beginning with the month before the primary, except that the statute doesn’t say the month before. It says “July.” Those reports are only due quarterly in the off-year period.

But as a result, if no other changes are made, anyone who declares for the 2012 primary this year, and any incumbent with an active campaign committee, would have to start filing campaign finance reports this July, and for every two weeks until next year’s primary.

The potential for a filing headache caught the attention of legislators and the Secretary of State, who together worked on Senate Bill 11-252. That bill would have corrected the problem by changing the reference from a specifically-named month to a more general reference of a month before the primary. Problem solved? Not quite.

The Senate State, Veterans and Military Affairs Committee killed SB 252 on May 2, at the request of its sponsor, Sen. Bob Bacon, D-Fort Collins. Bacon is on vacation and not available for comment, but Jenny Flanagan of Colorado Common Cause told The Colorado Statesman that the bill was killed because it also sought to reduce the number of reports that would have to be filed. The bill would have lowered the number of pre-primary and pre-general election bi-weekly reports from five to three for each election, which Flanagan said would have reduced campaign finance transparency. Gessler also had withdrawn his support because of changes to the legislation, according to a spokesperson.

Two days after the session ended, the Secretary of State’s website posted a rulemaking notice for the June 14 hearing, with a proposed rule that would eliminate bi-weekly reporting of campaign finance reports leading up to an election in an election year. What the notice and rule didn’t say, according to spokesman Andrew Cole, is that this is intended to be a short-term fix until the Legislature comes back in January and can deal with the problem permanently. Gessler declined to comment for this story.

But even the proposed rule goes too far, Flanagan said this week, and her organization, which is part of the Secretary of State’s Campaign Finance Advisory Board, will oppose it.

Flanagan said this week that the problem with the rule as proposed is that it eliminates all reporting. The Legislature decided not to take action on this, Flanagan said, although it could have. In addition, there’s “a lot of authority questions that come up” with this rule, she explained, including whether Gessler has the authority to make these kinds of rule changes.

The proposed rule should at least follow the spirit of the current law, Flanagan said, which requires monthly reporting, starting six months before the primary. But by eliminating all reports the rule would instead result in less transparency in campaign finance.

Flanagan's assertion that it eliminates all campaign finance reporting requirements is not true, Cole told The Statesman. The remaining provisions of the law, which include monthly reporting six months prior to the general election in 2012, will still be in effect. For the remainder of this year and the first quarter of next year, quarterly reports also are still in effect, he explained.

Luis Toro of Colorado Ethics Watch said the Legislature should have changed the statute when it had the chance. As it reads now, candidates will have to file disclosures every two weeks for 11 months, which Gessler in his statement of purpose for the rulemaking called an “absurd result.” Toro disagreed with the characterization of absurd, although admitting he wouldn’t want to have to read campaign finance reports every two weeks for 11 months. On the other hand, candidates could just file reports that said they didn’t do anything and that could hold until the Legislature convenes in 2012. “This isn’t a situation that can’t be resolved” although having to file every two weeks for 11 months is not a great policy result, Toro said. It is unclear, he added, whether another option, such as to write a rule with new dates that would have matched the original legislative intent, was possible.

“The Secretary is not a fan of campaign finance disclosure,” Toro told The Statesman this week. “It’s opportunistic for the Secretary of State to seize this as a way to nullify disclosure laws,” which he added would lead to a “huge void in the disclosures.”

Sen. Morgan Carroll, D-Aurora, told The Statesman that she recognizes that there is now a conflict, but added that the Secretary of State “has a choice on whether to run [a rule] that errs on the side of transparency, consistent with the language of current law, or errs on the side of scrapping reporting. The right solution is to create a rule filling a stop-gap of reporting, not to eliminate it.” Carroll said the General Assembly does need to deal with the problem next session.

Marianne@coloradostatesman.com