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Can't Afford a Lawyer? No Free Speech for You.

Colorado campaign finance regulations censor ordinary citizens.

ReasonReasonFor someone campaigning to help run Colorado's university system, Matt Arnold didn't seem too keen on higher education. His 2012 Republican primary campaign for a spot on the Board of Regents made headlines after the candidate admitted that he had misstated finishing his master's thesis, maligned those who received degrees for their "pursuit of academic BS that no one cares about" by calling them "a bunch of people who hang letters after their names, but they have no useful skills," and then publicized his opponent's home address. In the heat of the controversy, a group called Coloradans for a Better Future (CBF) ran an ad criticizing Arnold's campaign as "an embarrassing distraction." This, it seems, was the moment that Arnold's mission changed from winning political office to an anti-speech vendetta.

Proving the old adage that academic politics are so vicious because the stakes are so low, Arnold began an all-out legal attack on his detractors. Appearing on a local radio show in 2014, he threw down the gauntlet: CBF's supporters, he said, "need to be dragged into court" and "exposed for the cowardly, backstabbing scum that they are."

Arnold and his newly founded Campaign Integrity Watchdog group proceeded to file complaint after complaint against CBF. At one point, he even demanded that the state disbar CBF's attorneys.

The relentless litigation paid off. In 2014, an insolvent CBF filed a "termination report" with the Colorado Secretary of State. But that only prompted Arnold's fourth complaint. He now claims that a lawyer had helped CBF file for termination and that the lawyer's pro bono aid amounted to a political "contribution" that should have been reported.

As in many states, political participants in Colorado are subject to strict caps on contributions. State legislature candidates can receive no more than $400 per donor during an election cycle. Political committees—politically engaged citizens who have banded together into a group—can accept only $575.

But campaign finance attorneys regularly charge hundreds of dollars per hour for their services. So an organization that received as little as one billable hour in pro bono or reduced-cost legal aid would quickly blow through the state's contribution limit. Citizens with few resources would be utterly defenseless against litigious opponents.

As far back as 1978, the U.S. Supreme Court held that pro bono representation is a "fundamental" right that merits protection under the First Amendment. Regulations cannot "abridge unnecessarily the associational freedom of nonprofit organizations" that offer legal assistance, the high court ruled in In re Primus. The only other court to consider this issue—in Washington state—ruled that regulating free legal assistance as a contribution is "unconstitutional."

Despite these clear precedents, the Colorado Court of Appeals sided with Arnold, ruling in April that free or discounted legal aid can be regulated and restricted as a "contribution."

In August, the Institute for Justice, the public interest law firm where we work, petitioned to overturn that decision. "The Court of Appeals' ruling meant that Coloradans could find themselves breaking the campaign finance laws simply by working with a lawyer to try to comply with those laws," says Paul Sherman, a senior attorney at I.J. "That sort of Catch-22 is unjust and unconstitutional."

Thankfully, the Colorado Supreme Court has agreed to review the case. It also stayed the lower court's ruling. What happens next will not only have significant ramifications for free expression, it will also shine a light on Colorado's peculiar system for regulating political discourse, which at every turn favors censorship over free speech. Coloradans who wish to exercise their First Amendment rights are uniquely exposed, thanks to the state's system of private-party enforcement. In 2002, Coloradans voted in favor of Amendment 27, which enshrined a package of ambitious campaign finance regulations into the Colorado Constitution. But enforcing those laws was outsourced to the public at large.

Under the state constitution, "any person" who suspects someone may have violated Colorado campaign finance law can file a complaint with the secretary of state. Within three days, the secretary must forward the case to the Office of Administrative Courts, triggering full-blown litigation, where parties can subpoena and depose each other. Since those cases proceed in civil court, defendants do not have a right to a free attorney. Cases are ultimately heard by an administrative law judge, who determines liability and can impose sanctions. Appeals can last for years.

Incredibly, the victims of baseless complaints have little recourse to recover their court costs. Like in other civil cases, any prevailing party is supposed to be entitled to recover their attorney's fees. But there's a catch. Although campaign-finance violations are heard by administrative law judges, they do not have the power to enforce their awards for attorney's fees. Instead, that can only be done in state district court.

Colorado explicitly only allows the secretary of state or the complainant to file a motion to enforce such an award—not respondents. In other words, even if someone targeted by a complaint prevails in court, they cannot recover their legal fees. As recently as May 2016, the Colorado Court of Appeals ruled that state law "leaves a respondent awarded fees and costs without a remedy…to enforce that award." That asymmetry practically invites the thin-skinned to game the system.

In most states, publicly accountable officials would promptly review such complaints, serving as a filter for baseless or litigious claims. Not in Colorado. Regardless of the complaint's motivation or merit, the secretary of state "shall refer the complaint to an administrative law judge," with no discretion allowed.

Consider a 2010 case that began when a candidate for the Colorado House scrawled a handwritten complaint claiming he was "constantly being harassed by e-mail and Facobock mossges [sic]." He asked the court to subpoena AOL for his critic's contact information and then began filling the court record with MySpace stories about bondage parties, which he claimed his online tormenter had authored. It took an administrative hearing and over two months in the judicial system before the case was dismissed.

Although Amendment 27 was heavily pushed by progressive groups, including Common Cause, the League of Women Voters, and the Colorado Public Interest Research Group, the crowd issuing the complaints is bipartisan. The Colorado Republican Committee once filed a complaint against a Democratic candidate for the state House; the executive director of the Colorado AFL-CIO sued the Colorado Right-to-Work Committee, resulting in nearly $10,000 in fines levied against the latter.

Last year, a school was sued for sharing a Facebook post about one of its students' mothers. The complainant was the campaign manager for the mother's political rival.

In another case, the leaders of a recall campaign against three GOP county commissioners in Elbert County were subjected to months of litigation (prosecuted by the Elbert County Republican Party), based solely on the county clerk's failure to properly process the paperwork required to register the group as an "issue committee." In almost any other state, a simple phone call would resolve that sort of problem.

Photo Credit: Reason

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  • gah87||

    Campaign finance laws are created for no other purpose but to stifle free speech, thus empowering incumbent parties.

  • C. S. P. Schofield||

    True. And as people drift away from the establishment politicians in both parties, we are going to see those establishments using every dirty trick in the book to hold on to power.

  • Quixote||

    Tut-tut, Mr. Arnold's principled legal opposition to these "free speech" whiners is far from "baseless," and the Colorado Court of Appeals should be honored for making sure the law is upheld. It is, incidentally, highly unfortunate that Colorado's criminal defamation statute was repealed in 2012; let us hope this foolish retreat from law and order can be reversed now that the fancy "electoral college" graduates have done their duty as citizens of our great nation. Once that statute is reenacted, hopefully we will be able to take further action in regard to the "free speech community" in Colorado, and make them as quiet there as they are in New York. Surely no one here would dare to speak up and defend the outrageous "First Amendment dissent" of a single, isolated judge in America's leading criminal "satire" case? See the documentation at:

    http://raphaelgolbtrial.wordpress.com/

  • The Grinch||

    Those who pursue degrees in academic BS that no one cares about need to be maligned, particularly if they're using federally backed loans to fund it. He sounds pretty douchebaggy on the rest of the stuff though.

  • buybuydandavis||

    Foreign Nationals cannot contribute to political campaigns.

    Wouldn't this also apply to pro bono volunteer efforts?

  • Longtobefree||

    However, pro bono work is allowed in federal courts, when suing for conspiracy to violate constitutional rights.

  • Cloudbuster||

    In 2002, Coloradans voted in favor of Amendment 27, which enshrined a package of ambitious campaign finance regulations into the Colorado Constitution.

    Basically, the people of Colorado are getting what they asked for -- good and hard.

    Zero sympathies given.

  • FreedomIsBetterThanLiberty||

    I don't think the authors understand libertarianism. After reading the article, I guess their complaint could be that all campaign finance laws are bad, and these bad laws mean that rich people get more speech.

    However, the whole point of libertarianism is that rich people have more rights because they have the means to exercise and defend their rights.

  • Rational Exuberance||

    However, the whole point of libertarianism is that rich people have more rights because they have the means to exercise and defend their rights.

    I suggest you read up on "the whole point of libertarianism", since you seem totally confused on what it is. Hint: it's not what you think it is.

  • MichaelL||

    I don't know where you all have been. It has been this way for poor people like, forever! The law does not matter if you cannot afford a lawyer. Nowadays the lawyers supplied by public defenders is also terrible.


    My step son was accused of stalking, by a juvenile court prosecutor. It was dropped and never proven. It was over the fact that the parents did not want third cousins dating! The judge ripped him a new one, after the charges had been dropped! Then he got in trouble for taking malic acid (sour candy stuff) to school for a YouTube challenge. They switched it to FINS (fins?) court , they acted like he was a delinquent! I have to admit it happened in back woods Arkansas! These people don't know what justice looks like! (Which was never explained clearly to us. And I understand a lot being a PHD level education as a physician)


    I admit, it is not the same subject as the free speech subject. But, "justice" has been this way, out here in the real world, for a long time!

  • James001||

    Nice article! Laws vary from state-to-state and change from time-to-time. Always consult with a qualified professional lawyer before making any decisions about your legal matters. While hiring a lawyer it is important for us to be cautious and also look into each and every aspect carefully. One may also navigate to this web-site for more information.

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