Campaign Finance

Victory in Lawsuit Over Colorado's System of Private Enforcement of Campaign Finance Law

Federal Judge Raymond Moore applies strict scrutiny to a system with the power to restrict political speech and finds it unreasonable to outsource that power to anyone and everyone.


In 2002 Colorado passed a set of campaign finance regulations that allowed private citizens to target other people's political speech, launching very expensive (to the targeted) legal investigations. The law is structured so that even when complaints are judged baseless, the defendants end up on the hook for their legal costs.

Institute for Justice

The Institute for Justice (IJ) sees this as a violation of Coloradans' First Amendment rights. "With no oversight by any government official to screen out frivolous or legally insufficient complaints," the group argues, "the system is rife with abuse, with disgruntled politicians or their allies routinely filing complaints to silence or intimidate those who would dare to criticize them."

Tammy Holland had twice been sued for daring, without forming a political committee, to pay for newspaper ads criticizing the "common core" approach to education and suggesting that voters scrutinize school board members and candidates. The suits came from school board members themselves. In 2016, IJ helped Holland sue Colorado Secretary of State Wayne Williams over the state's campaign finance law.

A law that incentivizes politicians to sue their citizen critics is pretty clearly bad policy irrespective of constitutional questions. As Holland said in a press release from IJ, "All I did was ask my neighbors to get engaged in a local school election, and I got sued two times by people who didn't like what I had to say. It was incredibly intimidating. Nobody should be able to sue their neighbor for talking about politics."

This week U.S. District Judge Raymond P. Moore decided that the private-party provisions of Colorado's campaign finance laws do indeed violate the First Amendment. There is, he wrote, "nothing reasonable about outsourcing the enforcement of laws with teeth of monetary penalties to anyone who believes that those laws have been violated."

To Moore, the key problem is that "by any construction the laws that any person is being asked to enforce involve political speech." Because of that, "the enforcement provisions should be subject to strict scrutiny," and to meet that standard the state "must show that the enforcement provisions advance a compelling state interest."

But Colorado's secretary of state "made no attempt" to do that. Furthermore, the "defendant provides no evidence that the enforcement provisions are narrowly tailored….This is perhaps not surprising given that defendant concedes there is no evidence that its interests could not be served equally well by a system different to the one contained in the enforcement provisions."

Moore therefore granted summary judgment to overturn the law. He went on, in case of future appeal, to discuss some evidence Holland presented indicating that the current structure of Colorado campaign finance enforcement freezes some people's willingness to engage in political speech.

Moore didn't find this argument super-impressive, but he added that "there is at least some evidence of the character and magnitude of the asserted injury. That is more than can be said for evidence of the precise interest(s) defendant has put forward as justification for the burden imposed by the enforcement provisions."

As IJ wrote in a press release:

"Yesterday's ruling recognizes that Colorado cannot authorize 'any person' to police their neighbors' political speech," IJ Senior Attorney Paul Sherman said. "Under the First Amendment, nobody should have to fear being sued by their political opponents merely for expressing their opinion on the issues that matter most to them."

In recent years, Colorado's campaign-finance laws have been exploited in increasingly disturbing ways. In 2015, for example, Campaign Integrity Watchdog dropped a case in exchange for a $4,500 "settlement"—paid not to the State of Colorado, but to Campaign Integrity Watchdog directly. And in 2016, the same company sought to extract $10,000 from a state political party, warning that otherwise, "the beatings will continue until morale improves."…

"By outsourcing enforcement to the world at large, Colorado's campaign-finance system became a tool for corruption and speech suppression," said IJ Attorney Sam Gedge.