Hickenlooper glides by Colorado’s allegedly Independent Ethics Commission

Contributing Columnist

Before publicly debating its ruling on whether Gov. John Hickenlooper violated ethical standards last year by hosting the Democratic Governors’ Association meeting in Aspen, Colorado’s Independent Ethics Commission went into executive session Monday morning to confer with their attorney. Apparently in the Passover spirit they must have slit the throat of a lamb, drained its blood and examined the entrails for legal guidance, perhaps augmented with an assist from a snorted elixir of powdered lizard gizzard, eye of newt and skin of Bufo alvarius. The Commissioners returned from these deliberations steadfast in their conclusion that the sauce previously administered to the goose would never do for the gander. Much like the Council of Trent’s theory of transubstantiation, the Commission found that “hosting” infuses an innocence, which defies human understanding, to all subsequent proceedings, or, as Richard Nixon explained his behavior to David Frost, “…when the President does it, that means it’s not illegal.”

Former U.S. Attorney Bill Leone, who was recently appointed to the Ethics Commission, chaired the proceedings. When Leone observed that both the Gessler case and the Governor’s complaint seemed to be pushing the Commission towards a posture that would find partisan involvement by an elected official (at any time, for any reason) to be intrinsically unethical, he was summarily upbraided by Jack Finlaw, attorney for the Governor. Finlaw wanted to establish the difference between these two cases, which he alleged had absolutely nothing in common. One difference, of course, was the fact that the Commission had denied Suzanne Staiert, the Deputy Secretary of State, to appear on his behalf. It had determined that Gessler’s decision to attend a Republican Election Law meeting occurred in his private capacity and not as a part of his official duties. Five staffers, by contrast, represented the Governor at the hearing, at least three of whom were attorneys, all presumably attending at taxpayer expense. So much for equal treatment.

There was no objection to the characterization of the DGA event as one primarily designed to serve a “partisan fundraising purpose,” with a handful of “issue discussion” workshops organized to provide a patina of policy seriousness. The information provided to the Governor before his seating at the evening’s banquet, scheduled for the Little Nell, included helpful reminders that he was placed between Mr. $100,000 and Mr. $75,000, generous donors to the DGA. It seems unlikely these gentlemen wrote their checks because of an abiding personal commitment to good government. In fact it could be argued that theirs is precisely the kind of influence peddling and access purchasing that voters were attempting to rein in when they originally approved the Independent Ethics Commission. Yet the Ethics Commissioners, who dismissed the Compass Colorado complaint as frivolous on a 4-1 vote, did not acknowledge this possibility. Former State Rep. Matt Smith, who ineptly chaired the Gessler hearings, continued to argue that a little more investigation just might uncover something other than the shriekingly obvious pay-to-play access game the Commission was choosing to ignore.

Commissioners dutifully expressed their belief that the Governor was simply executing his responsibilities as Governor by hosting the DGA event, a conclusion with which I do not quarrel. But their finding that the freebies extended to the Governor and his staff did not exceed the value of their contributions to the event — in the case of the Governor — including his schmoozing of fat cat donors, requires an ethical elasticity that I simply can’t manage without risking an intellectual hernia. There was much idle discussion of the implications of the recent McCutcheon decision by the U.S. Supreme Court and the appropriate role of fundraising in our political system. Should the IEC ever rule on questions of contribution regulation? Is a fundraiser a protected activity for any officeholder under the First Amendment? Is the use of state monies (taxpayer dollars) to support partisan political activity ever or never appropriate?

Secretary of State Gessler (and now a designated Republican candidate for Governor) filed a request for reconsideration of the Commission’s previous finding that he had unethically enriched himself by attending a Republican Election Law forum at which he had been invited to speak. Apparently, according to the Ethics Commission, he would have been better off if his excursion had been a blatant Republican fundraiser. Although Gessler voluntarily reimbursed the direct travel costs initially charged to his discretionary office account, the Commission chose to fine him an equal amount so he would have to pay twice for his trip. All this is on appeal in the courts, a circumstance the Commissioners hid behind, when they denied the request for a rehearing in light of their decision in the Hickenlooper case. Much like Pontius Pilate, they decided that equal treatment was beyond their grasp. A Good Friday gift for us all!

Miller Hudson is a public affairs consultant in Denver.