Colorado Common Cause and Colorado Ethics Watch on Thursday filed a complaint in Denver District Court against Secretary of State Scott Gessler that claims Gessler unlawfully weakened Colorado campaign finance laws through the Secretary of State’s rulemaking process, raising the threshold at which one must register an issue committee from $200 to $5000.

Common Cause and Ethics Watch claim that Gessler did not have the authority to make the changes,and they have petitioned the court to invalidate the new rule.

Secretary Gessler issued a notice of adoption of Rule 4.27 on May 13 to increase the contribution and expenditure threshold that triggers the requirement for an issue committee to register and file disclosure reports from $200 to $5000.

In addition, the rule eliminates the requirement to disclose any information about the first $5,000 of contributions and expenditures by an issue committee.

“The Secretary is under the mistaken impression that he has authority to rewrite campaign finance laws, not merely make rules to enforce those laws,” said Luis Toro, Executive Director of Colorado Ethics Watch. “Disclosure thresholds are clearly not within the authority of the Secretary of State to change.”

“If allowed to be enforced, this rule would make it even easier for issue committees to get a measure on the ballot while never disclosing who is behind this measure and how they are spending money to influence voters,” said Jenny Flanagan, Executive Director of Colorado Common Cause.

The $200 limit had been set by the Colorado Constitution. Toro said either the Constitution needs to be amended or Gessler needs to live with and enforce the $200 limit.

Toro said that if an issue committee can raise and spend $5000 without having to file as a committee or disclose who its donors are or what it has spent the money on, it would open the door to even larger amounts being raised and spent without being reported.

“What will happen,” he said, “is it will take someone like us to watch all these groups and try to prove they’ve raised or spent $5000 without filing.”

He said it is harder to skirt the law with the lower limit in place. “If Bernie Buescher was still the Secretary of State and if he had done this, we’d be filing the same complaint,” Toro said.

Toro said there has been one court case, Sampson v. Buescher, decided in November 2010, where the court said the $200 limit was too low, but Toro emphasized that the court was ruling only in that case and did not throw out the $200 limit or throw out the law, but only ruled that in one particular case it found the $200 limit to be burdensome.

Gessler’s take on that case was different. He released this statement:

“After spending hundreds of thousands of dollars over the past four years, the state lost on this issue in federal court and paid the opponent’s attorneys fees,” Gessler said. “This latest complaint only adds insult to injury. My goal with the new rule is to help insulate the state from more lawsuits and preserve our limited resources.

“The fact is, if this complaint is successful, the state will be exposed to more lawsuits and we’ll be forced to pay attorney’s fees for each subsequent lawsuit.”

Last year, the Tenth Circuit Court of Appeals found that the existing $200 threshold for issue committee registration and reporting was unconstitutionally low. Thus, without a higher threshold, issue committee reporting may be essentially unenforceable.

Mike Saccone, communications director for the Colorado Attorney General’s office, said his office would review the complaint and discuss it with the Secretary of State’s office before deciding how to proceed.

See the complaint here.

In the face of criticism that he is improperly meddling in a campaign finance case on behalf of a former private-practice client, Secretary of State Scott Gessler says he doesn’t believe Coloradans should have to hire lawyers to steer clear of penalties when they simply want to participate in the political process.

“The fact is this case could have a chilling effect on candidates and registered agents seeking guidance from the secretary of state’s office,” said Communications Director Rich Coolidge. Gessler, said Coolidge, is seeking to shore up the authority of the secretary of state’s election division so that candidates and their citizen supporters, untrained in legal complexities, can act with confidence on the division’s advice.

“Gessler wants to encourage more participation and comfort for registered agents acting on behalf of their friends who may be running for office or neighbors collecting money as part of a small donor committee. Gessler believes that these individuals shouldn’t have to hire [attorneys]… If they have questions, they should be able to seek and trust the guidance from the secretary of state’s office.”

Friend to the court or bad messenger

In April, Gessler petitioned the state court of appeals to allow him to act as an unbiased “amicus curiae” or “friend of the court,” who wished to submit an argument in a case brought by Clear the Bench Colorado, a committee formed in 2009 to urge Coloradans to vote against retaining four supreme court justices.

Clear the Bench is appealing a ruling handed down last September by Administrative Law Judge Robert Spencer based on a complaint filed by government watchdog group Colorado Ethics Watch.

Gessler, an attorney at the time with high-profile conservative-politics firm Hackstaff-Gesssler LLC, defended Clear the Bench in Spencer’s court and was shocked to lose the case. He called the circumstances navigated by his client “Kafkaesque” and told the Colorado Independent that he thought Spencer’s ruling was “crazy.”

In his decision, Spencer agreed with arguments presented by Ethics Watch. He ruled that Clear the Bench had incorrectly filed with the state as an issues committee when it was in fact acting as a political committee by advocating against the justices as candidates for office. That’s exactly what political committees do, Spencer said, whereas issue committees advocate for or against citizen-initiated petitions or legislatively-referred measures. The categorization matters because political committees are subject to donation limits and higher campaign finance reporting standards.

“What kind of crazy system is that, when you can’t trust what the Secretary of State tells you?” Gessler told the Independent after Spencer announced his decision. “[This ruling] means you have to hire a lawyer to do anything–- to get involved at all in the political process.”

Six months after the ruling and in the wake of an election that made Gessler secretary of state, Ethics Watch believes that, in petitioning the appeals court in the case with an ostensibly unbiased “amicus brief,” Gessler is in fact seeking to obtain a second chance for his former client and that he is using state funds and the authority of his office to do so.

Ethics Watch Director Luis Toro told the Independent that Gessler is the wrong messenger and that the message he is pushing is all wrong, too.

“Amicus briefs are not often controversial,” he said, explaining that they are filed by non-litigants and meant either to add different perspectives than those presented by the parties to the case or to make arguments for an unrepresented party. None of that truly applies here, he said.

“I never expected to argue against an amicus brief in my career but I never thought I’d be presented with a situation like this,” he said, referring to the fact that his former courtroom opponent in the Clear the Bench case is now head of elections and unabashed about asserting himself into the same case. Toro said Gessler is mounting the same defense of Clear the Bench in his amicus brief that he made as Clear the Bench’s attorney last fall, only this time from a posture in which he is supposed to be acting as a mere “friend to the court” not as a “friend” to either of the parties to the litigation.

Amicus brief meet appellee opposition

Ethics Watch filed an opposition to Gessler’s amicus brief Monday (pdf), making just these arguments.

First, Gessler in essence files on behalf of a party and, thus, his brief cannot qualify as an appropriate amicus submission. Second, Gessler’s brief, even if not a thinly disguised brief on behalf of Clear the Bench, does not properly serve the purpose of an amicus curiae. Third, Gessler’s submission constitutes an improper attempt to use state resources for the gain of a private entity. Accordingly, Ethics Watch respectfully requests that Gessler’s motion for leave to file an amicus brief be denied.

In his brief (pdf), Gessler argues that administrative law judges like Spencer lack the authority to override election-rule decisions made by the secretary of state’s office. He argues that the secretary of state “determined that Clear the Bench Colorado was an issue committee” and so Spencer was “bound by the secretary’s ruling and did not have the power to hold otherwise.”

In this brief, as in court last fall, Gessler pointed out that secretary of state staff advised Clear the Bench to register as an issue committee and that Clear the Bench was, in effect, punished for heeding that advice.

Even though the Independent has reported that to be the case in the past, the facts paint a more complex picture.

As Spencer outlined at length in his decision, secretary of state staff waffled on the question and made plain to Clear the Bench that, although some of them believed the group should file as an issue committee, the question was unsettled and that Clear the Bench must rely upon the advice of its counsel, which, of course, was Gessler.

When Clear the Bench, under pressure from Ethics Watch and looking for clarity, asked Secretary of State Bernie Buescher to make a rule on the matter, Buescher declined, specifically stating that the question remained open and that “the Office of Administrative Courts will adjudicate the matter more quickly and with greater authority than is possible in emergency rulemaking.”

Toro said that if Secretary Buescher had handed down an emergency rule in favor of classifying Clear the Bench as an issue committee, Ethics Watch would have opposed that rule and the matter may well have ended up in an administrative court anyway.

The Colorado court of appeals will decide on whether to accept Gessler as a friend to the court and to allow his brief in support of Clear the Bench in the coming days.

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Colorado Secretary of State Scott Gessler is no stranger to political controversy. He has represented a long line of conservative advocacy and attack groups and in that role has become the public face of partisan causes. Indeed, his name and the law firm he founded virtually stand for a branch of Colorado politics that seeks to limit government restrictions on and oversight of campaign financing. He has done battle repeatedly with laws the secretary of state is charged to enforce and now he is secretary of state. His election victory put government watchdog groups on high alert. News coming today, a little more than a week since he was sworn into office, that Gessler plans to keep working part-time as an attorney for his former firm even while serving as secretary of state has set conflict-of-interest alarm bells ringing in watchdog offices.

In an interview with the Denver Business Journal, Gessler acknowledged that his plan to moonlight as a contract attorney with the Hackstaff Law Group, formerly Hackstaff and Gessler LLC, would certainly raise ethical questions but that he needed the money. He said his first priority would be to serve the state but that the public-servant $68,500-a-year salary that came with the office amounted to a major pay cut and he still had to provide for his family.

“My first duty is to the state of Colorado. Anything else I do, I’m going to have to make sure it in no way conflicts,” he told the Journal.

Making sure that any work he does for Hackstaff doesn’t conflict with the work he has sworn to do for the people of Colorado, however, may amount to another full-time job.

The secretary of state oversees and administers laws, codes, regulations that cover a vast array of vital and contested areas of activity, including lobbying, elections, campaign finance, voter registration, ballot initiative title setting and petition verification, some gambling as well as business, nonprofit and charitable practice and licensing. The list is long.

Gessler’s former law partner Jim Hackstaff bought Gessler out of the firm the day before Gessler became secretary of state. Hackstaff told the Journal that the ongoing part-time contract he signed with Gessler, which goes into effect in March, contains a provision stating that Gessler and the firm would “ensure that no conflict exists with Gessler’s state duties” and “specifically cited such areas as election law, nonprofit representation and business registration matters.”

Hackstaff said he “knows Gessler well enough to know he’ll be very conservative” in the projects he chooses to work on in order to steer clear of conflicts of interest.

Former Secretary of State Bernie Buescher, who has accepted a job as the deputy attorney general responsible for advising the secretary of state, said he couldn’t comment on Gessler’s plan to moonlight because commenting would be “inappropriate.”

Attorney General John Suthers, who is tasked to work with Gessler to help him avoid Hackstaff-related conflicts of interest, said attorney-client privileges prevent him from speaking on the topic.

This legally proscribed silence is a big problem and points to the bigger problem going forward, according to Luis Toro, director of government watchdog group Colorado Ethics Watch and a man who has argued cases against Gessler in the past. The public is being forced to simply accept that the secretary of state will be acting in good faith without any way to really ask questions or get answers to confirm that’s the case, he said.

“Assuming it’s feasible for [Gessler and Hackstaff] to carve out areas of law for [Gessler] to practice that don’t present a conflict with his responsibilities as secretary of state, how is the public supposed to monitor that? That [challenge] is inconsistent with the idea of public oversight of public officials.”

Toro points to the ethics questions that two years ago plagued Colorado Springs Mayor Lionel Rivera surrounding a deal that included a $53 million city contract to develop a new headquarters for the U. S. Olympic Committee. Because the Colorado Springs mayor position was, in effect, a part-time job, Rivera continued to work as a broker. His business clients included developers bidding for the Olympics project. He later said his problems with the case were compounded by the fact that he couldn’t break confidentiality agreements.

Toro said that in fact Colorado’s Personnel Board makes strict rules governing outside employment for state workers. As secretary of state, Gessler will have to sign off on those for his staff and they likely will apply to Gessler as well. Toro said that, in the end, Gessler may just decide to look for other ways to make side-cash given the “ethical minefield” his plan to moonlight for Hackstaff already seems to be laying out before him.

“Maybe he’ll just be, you know, ‘mea culpa.’ You just got to give him a chance to say ‘This isn’t going to work. Let’s avoid this whole can of worms. I’ll focus on doing the best job I can as secretary of state.’”

[Image via UPI ]

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Buescher served as secretary of state until being defeated by Republican Scott Gessler in November. He will now provide legal advice to Gessler’s office.

“I am pleased to welcome Bernie to my senior staff,” Suthers said in a press release. “Bernie is a proven leader and manager. His breadth of experience as an attorney, an elected official and a statewide executive will make him an excellent addition to the Office of the Attorney General’s management team. I look forward to working with him in this new capacity.”

The State Services Section provides legal advice and representation for numerous Colorado state agencies, including the governor, lieutenant governor, secretary of state, treasurer, attorney general and the judicial branch of Colorado government. The section handles complex constitutional litigation as well as the defense of voter-approved constitutional and statutory provisions. The State Services Section also represents the State Board of Education and the state’s public college and universities.

Prior to joining the Colorado Department of Law, Buescher served as Secretary of State from December 2008 until January 2011. He was the state representative for Colorado House District 55 from 2005 until 2008. Prior to his elected service, Buescher has served in numerous positions executive director of the Colorado Department of Health Care Policy and Finance under Gov. Roy Romer. Buescher began his career as a law clerk for Colorado Supreme Court Justice Paul V. Hodges from 1974 to 1975. He then practiced law in Grand Junction for a number of years.

Buescher is a 1974 graduate of the University of Colorado Law School and a 1971 graduate of the University of Notre Dame.

A native of Grand Junction, Buescher replaces Monica M. Marquez, whom Gov. Bill Ritter recently appointed to the Colorado Supreme Court. Buescher will begin work at the Office of the Attorney General on March 1.

Bernie Buescher

Keynoting the event in Glenwood Springs, Buescher, a Democrat ousted by Republican campaign finance attorney Scott Gessler in November, cited his previous stint in the Colorado state House as a representative from Mesa County as a prime example of what’s wrong with the system.

A well-respected moderate known for reaching bipartisan solutions (and mentioned as a likely speaker of the House), Buescher says he was outspent by a ratio of $1.6 million to $260,000 in his unsuccessful 2008 race. He was ultimately beaten by Republican Laura Bradford. Most of the money pumped into the campaign came from anonymous 527 political groups, Buescher said.

“And to this day, I don’t know who those folks were,” he said. “The rules for disclosure are completely ineffective. We need a new system of disclosure.”

State Sen. Morgan Carroll, a longtime champion of cleaner elections, recently told The Colorado Independent she is working with state Rep. Lois Court in the House to push for better disclosure laws in the state.

The Secretary of State’s Office, largely hobbled in how it can investigate violations and enforce existing rules, could become the mechanism for change, Buescher told Democrats Monday. He said that if a political committee buys advertising in a Colorado campaign, it should be required to register the name of someone on the committee. Then voters would have a little better idea of who’s behind an anonymous campaign.

Buescher also supports requiring corporations to reveal to shareholders how much is being spent on campaign contributions.

Carroll also wants similar requirements for 501(c)4 nonprofit “social welfare” groups that are allowed to conduct up to 50 percent of their business on political activities. But such groups, especially on the right, are expected to put of a fierce fight on that front.

Buescher Monday said an announcement on his future plans will be forthcoming soon, but he added he will not be working in the administration of new Gov. John Hickenlooper.

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Real Aspen reports outgoing Secretary of State Bernie Buescher has asked a Denver District Court judge to delay a decision on Curry’s lawsuit challenging Buescher’s decision that voters had to write in Curry’s name as well as fill in the oval or box next to her name on the ballot. He asked for the delay till noon today while county clerks tabulate provisional ballot results.

On Wednesday, the unofficial count had Wilson with 9,495 votes, followed by Curry with 9,003 and 8,892 for Korkowski, who has already conceded. Buescher reportedly wants to see if the provisional ballots swing the election in favor of either Wilson or Curry. It’s more likely the race will come down to the judge’s decision and then a possible recount that Curry may be willing to pay for (to the tune of up to $20,000).

“The race could come down to a handful of votes,” Curry told Real Aspen Thursday. “What we were envisioning here is kind of a supplemental approach where we take these 1,900 or so additional ballots that haven’t been counted yet, the undervote ballots, and record what they say and add them to the totals we already have.”

Curry sued Buescher’s office to allow her name to actually appear on the ballot after he ruled she needed to be unaffiliated for a full year in order to have that happen. Curry, a three-term Democratic state rep who switched to independent late last year, lost that legal challenge.

House District 61 includes all or parts of Eagle, Garfield, Gunnison, Hinsdale and Pitkin counties, but Curry is mostly focused on a recount in Aspen.

“I have concerns about the count in one county and that would be Pitkin County,” she said. “And it’s not what the clerk did or didn’t do. I know they absolutely have good intentions. My understanding is there were mechanical problems separating ballots. I do have a fear that the initial count in Pitkin County may not be that reliable based on the input I’ve received.”

Other constitutional offices also went to Republicans, including the Secretary of State’s Office, where incumbent Democrat Bernie Buescher was defeated by Scott Gessler by 51 to 43 percent.

And incumbent Republic Attorney General John Suthers turned back Democrat Stan Garnett 58 to 42 percent.

“I think it is a good night tonight. We are taking back the U.S. House Representatives, taken back the state House, and I think the Senate. I think we have won two things. One I thing we have won is the battle of ideas,” Gessler said. “Voters across the country are rejecting big and they are rejecting intrusive government.”

Gessler said the second thing Republicans won was “an opportunity to get the state back on track. We see the disasters that liberal policies have created and we need to do better.”

“I think we are going to be OK. I am up 7 points in Arapaho, seven points in JeffCo, 3 points in Larimer, 1 point in Adams, and El Paso hasn’t reported anything yet. So most of Denver has reported and most of Boulder has reported — zero El Paso.”

9News had Gessler leading Buescher by a 48 to 46 percent margin at 10:15 p.m.

Gessler said that he plans to enact the changes he promised on the campaign trail. He said those include pushing for photo identification, creating password protection on Colorado business databases to protect corporations from identity fraud, and the creation of business courts to streamline Colorado’s judicial system and aid in bringing business to Colorado.

Finally, Gessler said fixing what he sees as a mess of campaign finance laws will be a priority for his administration. However, despite his Republican affiliation, Gessler said he would work in a bipartisan fashion.

“I think a lot of the campaign finance laws are ambiguous and a mess. I think that we need more clarity on that. That will apply to both parties … all ideological sides. I don’t like the ambush litigation that often goes on there,” Gessler told the Colorado Independent.

Both Sen. Michael Bennet and gubernatorial candidate John Hickenlooper brought their buses, the wives, their kids and their friends.

Among the luminaries showing up to rally voters and volunteers were Sen. Mark Udall, lieutenant governor candidate Joe Garcia, Lakewood Mayor Bob Murphy, former Denver mayor and Clinton cabinet member Federico Pena, and Secretary of State Bernie Buescher.

On Sunday, in Lakewood, Bernie Buescher, John Hickenlooper, Helen Thorpe and Federico Pena rally Democratic voters. Photo by Scot Kersgaard.

“You are here for people who have lost their jobs in this savage economy.

“You are here for young people in our state who are trying to get a college education during these difficult economic times while the cost of college just keeps going up and up.

“You are here for every one of the 850,000 children going to school across our state who believe that we will keep the promise to them that the zip code they are born is is not going to define the quality of the education they get,” Bennet said.

Talking about his opponent, Republican Ken Buck, Bennet said, “He’s reflecting a bunch of talking points that have been written by right wing think tanks in Washington, D.C.

“Maybe the most important distinction came out the other night in a debate when they asked us, what is the one thing you said during the campaign that you would take back? Do you know what my answer was? ‘Nothing’. because I said what I meant from one part of the state to the other, from rural areas to urban, during the primary and after.

“He (Buck) was able to pull out something from just the past 24 hours when he said he thought climate change was a hoax and maybe he was rethinking that, but the list is long and I can tell you that the last thing that Colorado needs, the last thing the country needs is another politician saying one thing during their primary and another thing during their general election, one thing in rural parts of the state and another thing in urban parts.”

He said he expects a close election, possibly decided by hundreds of votes, and urged people to continue working on get out the vote efforts.

The crowd of more than 100 people gathered in a parking lot was a mix of the curious, out and out fans, and active volunteers.

One volunteer, Dan Hanley, of Lakewood, said he has spent dozens of hours walking his precinct, knocking on doors, encouraging people to vote. Like a lot of other precinct-walking door-knocking volunteers, he expressed pride in getting the highest possible turnout in his precinct.

He said he thinks it makes a lot of difference. “People think they have plenty of time to vote, then it is too late for early voting and maybe they just need a friendly reminder to get to the polls on Tuesday,” he said.

State Rep. Sue Schafer, D-Wheat Ridge, told the crowd she had worked for Bennet when he was superintendent of Denver Public Schools.

“He talked to custodians and bus drivers as much as he talked to board members,” she said. Schafer recounted a time she was walking with Bennet to a meeting at a school. Even though they were running late, he kept stopping to talk to kids and teachers along the way. Someone pointed out to him that he was late for a meeting with some “important people” and he said he was already talking to the important people, she recounted.

Buck has led by 4-6 points in most polls taken up to this point, but Bennet has closed the gap in recent weeks as questions about his handling of a rape case have surfaced and he has made statements regarding homosexuality and climate change that many people have taken issue with.

In the governor’s race, the poll–of 621 likely voters–showed Denver Mayor John Hickenlooper, the Democrat, leading comfortably.

The 9NEWS/Denver Post poll has Hickenlooper with 49 percent of the vote, American Constitution Party candidate Tom Tancredo with 39 percent and Republican nominee Dan Maes with 9 percent of the vote. A poll, released Oct. 22, showed that race in a virtual tie between Hickenlooper and Tancredo, but that poll had been conducted by a Republican firm.

According to the 9News/Denver Post poll, Hickenlooper has gained ground recently among unaffiliated voters. A few weeks ago, the same pollsters found Tancredo leading Hickenlooper 46-38 among independents; today they found Hickenlooper leading 49-41 in that key group.

The poll has Republican incumbent Attorney General John Suthers leading Democrat challenger Stan Garnett 47-36. In the Treasurer’s race, the poll has Republican challenger Walker Stapleton leading incumbent Democrat Cary Kennedy 42-39. In the Secretary of State race, the poll shows Republican challenger Scott Gessler leading incumbent Democrat Bernie Buescher 37-34. As the low polling numbers in each of those races suggest, pollsters said many voters had not yet made up their minds on these races.

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