For 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