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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 JusticeInstitute 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.

Photo Credit: Institute for Justice

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  • DenverJ||

    "By outsourcing enforcement to the world at large, Colorado's campaign-finance system became a tool for corruption and speech suppression,"
    We're number one, we're number one!

  • Mickey Rat||

    Why should that be any different than their Human Rights Commission?

  • DenverJ||

    True fact: the Libertarian Party was born in Colorado Springs, CO.

  • Citizen X||

    Huh. You'd think people would be more chill in a state with legal weed.

  • Fist of Etiquette||

    I'd hate right now to be the legislators who crafted and passed such an unconstitutional law.

  • gormadoc||

    I'm sure they're having a great time right now. The longest serving Colorado rep seems to have been elected in 2010, so quite a while after this law was passed. Kind of disturbing how it's sat on the books all this time with how no senators have a personal connection to it now.

  • Eidde||

    The problem with this law is it allows harassment of people for their political activities, and appointing a single prosecutor to screen all complaints would simply replace one form of arbitrariness with another.

    Private prosecutions, for *real* crimes, have an honorable history.

    It's one of the very few respects in which England is freer than the USA, because a crime victim doesn't have to wait around for the police to ignore him, but can bring a prosecution on his own.

  • Agammamon||

    No offense, but - no they can't. And haven't been able to for something like 200 years.

  • Exocetmd||

    When I lived in the UK in the 70's and 80's private prosecutions were most certainly allowed. The RSPCA has become notorious for them in recent years.

    www.cps.gov.uk/legal-guidance/private-prosecutions

  • Scarecrow Repair & Chippering||

    The real problem with this law is it was never given a chance to show its full potential. They should have let it go a while longer, so ordinary people could sue incumbents. Bankrupt their campaigns!

  • Rich||

    Holland had twice been sued for daring, without forming a political committee, to pay for newspaper ads[.] The suits came from school board members themselves.

    I trust Holland's countersuits got her a fair amount of money, from those school board members themselves.

  • Colossal Douchebag||

    Go IJ! I'm donating today. I wants me a t-shirt!

  • Paul Sherman||

    As Ms. Holland's lawyer, I thank you for your kind words and support. Please know that, despite your user name, in my eyes you are not a douchebag.

  • JFree||

    indicating that the current structure of Colorado campaign finance enforcement freezes some people's willingness to engage in political speech.

    That is definitely true. 2008 is the only year I was involved enough to see what was happening but couldn't figure out why. Now I know. The party establishments used it to stifle dissent and lawyer/advocate types used it to lawyer people into silence which seemed odd for a state that allows anyone and their dog to run for office

    Good for IJ (this lawsuit) and Cato (opposing the initial campaign finance ballot initiative that then became a legislated regulation with privatized enforcement)

  • Diane Reynolds (Paul.)||

    Pass a law forcing all campaign speech to take place on youtube, then subject them to takedown requests. Easy peasy.

  • jerryg1018||

    Why did it take 16 years for this case to be adjudicated?

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