Secretary of State hobbled in battle against clean-elections violators
Friday, December 04, 2009 at 8:40 am
Voters in Colorado care about clean elections and voted through a ballot initiative specifically to enact laws governing campaign finances in 2002. Lawbreakers have been caught and fined. But that’s apparently where enforcement ends. The list of groups violating the law includes an increasing number that simply skirt the fines judges have levied against them. Secretary of State Bernie Buescher now seems determined to go after the deadbeats, but his office told the Colorado Independent that the law, as it stands now, simply lacks teeth.
Last spring an administrative law judge found that an Aurora election issues committee called the Colorado League of Taxpayers violated Colorado campaign finance laws by failing to report nearly $2,400 spent on mailers opposing Democrat Steve Carter’s bid for Garfield County commissioner in 2008.
The judge fined the nonprofit $7,150 (pdf) for admittedly failing to file a report on its electioneering communications spending with the Colorado secretary of state’s office by the required Sept. 29, 2008, deadline. Now, more than 14 months after the violation, the group, traced to Republican political operative Scott Shires, still has not paid its fine.
The Colorado League of Taxpayers case is just one of many examples of issues and candidate committees on both sides of the political spectrum that have failed to pay campaign finance penalties to the state totaling hundreds of thousands of dollars.
But it’s a particularly glaring one because of Shires’ history of previous violations and because it came in a local election once thought to be immune from infusions of outside political money. The oil and gas industry spent heavily on that county commissioner’s race in 2008, funneling cash through several 527 groups (named for a section of the tax code) and 501(c)4 nonprofits.
Both Democrats campaigning on tighter environmental restrictions for the then-booming natural gas industry were defeated by Republicans who lamented the outside money and denied having anything to do with what some observers later deemed “a stolen election.”
How to bear down on deadbeats
Now the secretary of state’s office, headed by Buescher, a former Democratic state representative from Grand Junction, is trying to get tougher on collecting from the deadbeat issues and candidate committees and weighing options.
“Among the discussions that we’ve had is what about legislation that would impose personal liability on the registered agents?” Deputy Secretary of State Bill Hobbs told the Colorado Independent Wednesday. “Now, that’s not something that we could do — that would take legislation — but that is one of the things that seems to have some good support as maybe one of the ways to improve the enforcement and be able to hold people accountable.”
Hobbs cautioned that he has not seen language for any such bill proposed for the upcoming legislative session in January, nor has he heard of any individual lawmakers willing to take on such a reform measure. He did say, however, that campaign finance bills seem to be floated every session and that this particular issue is on the radar of several lawmakers.
Buescher, who was surprisingly and narrowly defeated last year by Collbran Republican Laura Bradford in a state house race involving 527 money, is also concerned about the issue of unpaid fines, Hobbs said.
“He’s very much aware of it and he would be supportive of something in that area as well,” Hobbs said of Buescher, who was the presumptive speaker of the house before losing to Bradford. “He understands the problem and probably would be supportive of legislation. We don’t have any specific language in front of us, and the devil could be in the details.”
No enforcement mechanism
Those details include limitations imposed by Colorado voters when they passed the campaign finance Amendment in 2002. The amendment dictated that campaign finance violations should be a citizen complaint-driven process, the cases decided by an administrative law judge rather than a partisan, elected secretary of state.
In the case of the Colorado League of Taxpayers, it took the political watchdog group Colorado Ethics Watch filing a complaint, and Carter, the Democrat victimized by illegal electioneering, says that’s a flaw with the system.
A retired judge and private-practice attorney in Rifle, Carter did not return a call requesting comment for this story, but last summer he told the Colorado Independent that the law needs to be changed “so that it’s not just a complaint-driven procedure, but where there appears to be violations of campaign finance laws, the secretary of state or a grand jury can investigate it if they want to. There’s no enforcement mechanism unless there are groups like Ethics Watch that want to do it just because they stand for clean elections.”
Under Amendment 27, Hobbs said his office is compelled to turn over any citizen complaints to a judge within three days, and if a judgment is rendered and a fine is levied, the secretary of state then treats any unpaid penalties just as it would any other fines – ultimately turning them over to state collections after a certain period.
The Colorado League of Taxpayers fine has not been turned over the collections yet, according to secretary of state spokeswoman Stephanie Cegielski, because the state collections department is in the midst of a computer system conversion that will put in place an online tracking method for all the various state agencies that rely on collections.
While personal liability for agents forming issues committees would make it easier for the state to collect unpaid fines, Hobbs warns there could be unintended side effects.
“There will be probably a little bit of concern that would be discussed or raised about what’s the chilling effect on agents if merely being an agent for a citizens group of some sort exposes you to personal liability for inadvertent violations of what can be pretty complex campaign finance laws,” Hobbs said. “It’s not going to be a black and white thing.”
Court fees and partisan politics
Luis Toro, senior counsel for Colorado Ethics Watch, said the secretary of state’s office may have to take the point on this because a citizens group filing suit against an issues committee to compel it to pays its state fines would expose that group to having to pay attorney’s fees if it loses.
“There’s clearly some authority for the secretary of state to take action,” Toro said. “Maybe the secretary of state and the attorney general could work together to file an enforcement action on one of these cases and then see what happens. [Amendment 27] says the prevailing party’s attorney’s fees in a private case; it doesn’t say that about a secretary of state enforcement action.”
But Hobbs said a citizens group would only be exposed to paying opposing legal fees if it loses a clearly frivolous enforcement case. He added there was a reason voters made campaign finance a citizen complaint process versus leaving up the secretary of state when they passed Amendment 27.
“The secretary of state is a partisan elected official, and by shifting the enforcement to administrative law judges, the idea is to put the issue of whether or not there has been a violation in front of an impartial, nonpolitical decision-maker,” Hobbs said. “Inevitably, almost all of the complaints involve partisan politics, frankly.”
Attempts to reach Shires for comment yesterday were unsuccessful.