Does the Denver-based federal appeals court enjoy hearing campaign-finance cases? How else to explain its refusal to declare a requirement of Colorado law unconstitutional despite two rulings that clearly point in that direction?
Beginning in 2010, and again this month, the U.S. 10th Circuit Court of Appeals ruled that Colorado law governing groups that raise and spend relatively small amounts of money on ballot measures violates those groups’ First Amendment rights.
We agree with the court that this is the case, and that it needs to be addressed. Coloradans’ right to political speech shouldn’t depend on their capacity to hire an accountant or attorney.
However, the court has refused to take the obvious next step and declare that the problem starts with the ludicrously low threshold of $200 that is set in the state constitution, thanks to an amendment approved by voters years ago. As soon as a group takes in or spends that amount of money, it becomes an official “issue committee,” subject to a host of registration and reporting rules that are time-consuming and complex.
Why not just strike down the $200 threshold as an infringement on the First Amendment — as it most certainly is — and be done with it?
Why not let the legislature set a new threshold in line with the court’s conclusions?
Unfortunately, the court has balked at this simple remedy. But in its most recent opinion, the court at least suggested an approach that the legislature could take in response to the ruling. As the court noted, “most of the onerous reporting requirements” are set in law, not in the constitution. Those requirements include, for example, “twelve disclosures in seven months regardless of whether an issue committee has received or spent any money.”
Indeed, the court noted, “a person registering an issue committee still faces over 35 online training modules on how to use” the system.
Deputy Secretary of State Suzanne Staiert has been in talks with lawmakers about a possible bill that would differentiate between big and small committees, with the threshold set at $5,000. Groups that raise or spend $200 to $5,000 would basically only have to register with the state and indicate their purpose, while larger groups would still face the full list of reporting requirements.
Staiert points out that while a majority of issue committees are small, the vast majority of money spent on ballot measures is by large groups — meaning transparency would still be ensured.
This is a fair solution and might actually satisfy the court.
If lawmakers refuse to act, they’ll be forcing other small groups to defend their First Amendment rights in court, while imposing significant legal costs on taxpayers.
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