“These… rules you propose are designed to allow the cloak of secrecy to remain firmly in place, providing a major loophole which will allow corporations, unions, trade associations and other entities to escape reporting requirements,” Carroll wrote. “These [Colorado campaign finance] laws were passed by both chambers of the General Assembly and signed by the Governor. It is not the prerogative of the Secretary of State to negate these laws.”

The question of how money should be spent and tracked in politics is a top issue of debate across the country, a debate that has grown especially heated in the months since the U.S. Supreme Court in its Citizens United decision ruled that corporations and organizations can effectively spend without limit on election campaigns.

On an ideological level, the issue pits those who believe campaigns must be open about their financial backing so that voters know when special interests– whether oil companies or teachers unions– are seeking to promote candidates or causes versus those who believe spending is a form of expression and that disclosure laws run counter to constitutional free speech guarantees.

Colorado has passed relatively strict campaign finance laws, at the ballot box and at the capitol. The $200 issue committee donation reporting threshold Gessler is attempting to raise to $5000 with was set by voters in 2002 when they passed Amendment 27, and Senator Carroll, for example, sponsored last year’s SB 203, which aimed to firm up state disclosure laws in the wake of the Citizens United decision.

In addition to raising issue committee reporting thresholds, Gessler’s proposed rules would also limit fines on committees that violate disclosure rules, end all reporting on donations for months during the primary election season and loosen rules that separate issue committees, which take positions on matters such as abortion or clean water, from political committees, which promote candidates directly.

Not yet a year into his term, Gessler has proven a remarkably aggressive secretary of state, working at the edge of his authority to not just implement but to recast campaign finance and election law. He has said that the laws are a tangle and so need significant reworking through rulemaking in order to fend off lawsuits and to encourage public participation in politics.

Yet the changes he proposes draw howls and lawsuits from government watchdogs, who see them as inappropriately pushing along the same ideological lines Gessler argued for years as a high-profile conservative-politics attorney, when he represented clients in cases seeking to loosen donation disclosure rules.

Denver district judges have agreed with the watchdogs and have ruled against Gessler’s proposals in a series of trial contests, sometimes rebuking Gessler in harsh language for overreaching his authority.

“[Gessler is] deciding he’s going to amend the Constitution,” Denver District Court Judge Bruce Jones said last month in announcing he had decided against some of the rules being heard today. “I don’t even think I can do that, and I’m charged with a lot more authority to interpret and apply the constitution than is [Gessler].”

Jones ruled against Gessler’s attempt to raise donation threshold limits but Gessler has appealed that decision.

In her letter, Carroll references the judge’s remarks.

“The District Court has already admonished you for overstepping your authority, and yet again you are attempting to rewrite the law to benefit those who would distort the electoral process. Rather than follow the direction of the court, you now propose rules that conflict with the plain language of the statute, and reverse legislative intent. Rulemaking should not be an opportunity to overturn the law… I strongly urge you to limit the exercise of your rule-making process to comply with the Colorado Constitution and state statute.”

Carroll said she can’t attend the hearing at the secretary of state’s office Thursday but will be following developments closely.

The full text of her letter:

December 14, 2011


Dear Secretary Gessler:

As you may know I am the author and sponsor of key campaign-finance laws to assure that the citizens of Colorado know the source of funding for campaigns.

These laws provide minimal safeguards against moneyed interests hiding campaign contributions in the wake of the Supreme Court decision in Citizens United allowing unfettered spending to influence elections.

Both chambers of the General Assembly passed these laws, and they were signed by the Governor of the state with the support of both Democrats and Republicans.

Now you want to overrule and negate this legislation. Your proposal is a major change to the existing law, one that is contrary to what voters adopted, and is in excess of what would be required to comply with any later decided cases.

Your rules and conditions to the existing definitions were never contemplated by the Legislature. As an example you add four conditions to the existing definition of “political organization.” See rule 7.2 and CRS section 1–45–103 (14.5).

These, and other rules you propose, are designed to allow the cloak of secrecy to remain firmly in place, providing a major loophole which will allow corporations, unions, trade associations and other entities to escape reporting requirements, even if they are engaged in express advocacy of candidates.

The District Court has already admonished you for overstepping your authority, and yet again you are attempting to rewrite the law to benefit those who would distort the electoral process. Rather than follow the direction of the court, you now propose rules that conflict with the plain language of the statute, and reverse legislative intent. Rulemaking should not be an opportunity to overturn the law.

I strongly urge you to limit the exercise of your rule-making process to comply with the Colorado Constitution and state statute.

Sincerely,
Senator Morgan Carroll
Aurora – Senate District 29

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Held Saturday, U.S. Human Rights Day, the event kicked off in Colorado a national effort to highlight and combat the voting rule changes. Speakers referenced recent watchdog reports (also see Brennan Center congressional testimony below) and drew historical parallels that set the new legislation into context with Jim Crow laws put into place in the defeated Confederate states after the Civil War by entrenched Democrats, so-called Dixiecrats, who sought to fight change by tamping down voting on the part of newly enfranchised black Americans.

“Voting is one of our most basic rights…. but today we are facing an assault on this right, the likes of which we haven’t seen in 100 years,” DeGette said. “The threat we’re talking about is striking on fronts all across the nation. Thirty-four states have introduced voter-suppression legislation. Bills have already passed in fourteen of those states and are pending in eight more. Some of the proposed laws end same-day voter registration and cut early voting opportunities in half. Reports have shown that these types of restrictions disproportionately affect African-American voters, blue-collar working citizens, young voters, seniors and parents that don’t have the flexibility in their schedules to stand in long lines at the polls on election day.

“It’s clear, sadly, that these efforts are being driven by a blatant desire for electoral gain by those who believe voters might stand in the way of their political ends.”

Supporters of the new voter rules say they’re necessary to prevent fraud and bolster confidence in the legitimacy of elections.

Detractors dismiss such claims, however, saying that fears of voter fraud have been wildly whipped up on the right precisely as a way to build support for laws designed to keep specific kinds of citizens from the polls, citizens who vote in large measures for Democratic candidates.

In the face of criticism, the Republican lawmakers and officials spearheading the rules changes have failed to produce evidence to demonstrate Americans perpetrate the kind of fraud that voter ID laws, for example, might combat.

Lightning strikes and UFOs

Adam Skaggs, an attorney with New York University’s Brennan Center for Justice, testified in 2009 for the Texas Senate on the merits of a proposed voter ID law. Over years of study, he told members of the chamber, it had become clear that the law they were considering would cause more problems than it would solve.

“Those who are screaming about fraud are crying wolf,” he said. “This is true of the most frequently reported forms of putative voter fraud—including double voting, voting in the name of dead people, and—most importantly for the purposes of this hearing—individuals impersonating registered voters at the polls.  The Brennan Center’s exhaustive research revealed that there is little to no reliable evidence of in-person impersonation fraud, in Texas, or elsewhere in the country.  And, of course, this form of fraud is the only misconduct that a voter identification requirement will address.

“This is worth repeating: the only problem that a voter ID requirement could possibly fix usually doesn’t exist.  Texans are struck and killed by lightning more often. And there are far, far more reports of UFOs every year than instances of impersonation at the polls.”

Speaking at Saturday’s event, Jenny Flanagan, director of voting and elections at Common Cause Colorado, said there were real problems with voting that the new laws would not only fail to address but would unquestionably exacerbate.

“There is no evidence of people misrepresenting themselves at the polls. There is plenty of evidence, however, that nearly half of Americans are not voting. Yet we are seeing two-thirds of our states introducing restrictive voter laws that will prevent eligible Americans from casting votes. That’s no accident.”

Flanagan pointed to the role played by the American Legislative Exchange Council (ALEC) in shaping the new voter laws. Bankrolled by the billionaire oil magnate Koch brothers, ALEC delivers sample legislation to Republican lawmakers around the country designed to establish legal roots for contemporary conservative politics priorities. It has become clear that, for the Koch brothers and ALEC, tamping down participation among Democratic voter demographics vies, for example, with priorities such as thinning regulations on industry and lowering environmental standards.

In that context, Saturday’s speeches all eventually landed on controversial Republican Colorado Secretary of State Scott Gessler.

Gessler’s ‘austerity program for democracy’

“Things are tough for young Coloradans nowadays,” said Chris Getzan, a spokesman for youth-politics group New Era Colorado. “They’ve got crushing college debt. They don’t have much in the way of job options. But what we always tell them is that they still have a vote and they are able to organize.

“Scott Gessler’s plans? They result in an austerity program for democracy here in Colorado. They say that unless your last name is ‘incorporated,’ there’s a little less democracy to go around. If you want to see where the enthusiasm gap begins, look no further than Scott Gessler’s office.”

Gessler has made national news and rates special mention in Brennan Center reports this year for seeking through legislation and rulemaking to raise roadblocks to voting in the name of preventing fraud.

During the 2011 legislative session, Gessler pushed hard at the capitol for House Bill 1252, introduced by Republican lawmakers Chris Holbert and Ted Harvey. The bill sought to give Gessler expansive powers to throw registered voters off the rolls. The law would have required Gessler to “periodically check” voter rolls against a vague collection of databases “maintained by federal and state agencies.” If the secretary suspected that any registered voter “may not be a citizen,” he could initiate a 90-day process whereby the voter would have to prove again his or her right to vote.

Gessler argued that he had found cases of voter fraud in which non-citizens had cast ballots in Colorado in the 2010 election. He testified in Colorado and on Capitol Hill that, based on a cross-check of vague databases, his office had uncovered thousands of likely fraudulent votes. He started by suggesting 11,000 fraudulent votes had been cast, a shocking number that under scrutiny later shrank to 5,000 and then to hundreds. Gessler finally said he was almost sure that 106 illegal immigrants had voted in the state, an assertion that nevertheless drew strong pushback from county clerks, Republican and Democrat.

Gessler never produced substantial evidence of the kind of voter fraud he was alleging and that was supposed to justify putting in place major new election laws in the state.

House Bill 1252 seemed to come out of nowhere, with its alarming reference to illegal immigrant voting and reliance on hazy security “databases,” which the secretary of state would be empowered to monitor. In fact, it was a Colorado version of a bill and amendment introduced and passed this year in Tennessee.

Tennessee’s Senate Bill 352 was introduced by Republican Mark Norris and amended by Republican Ken Yager.

The legislation failed to pass in Colorado where Democrats, despite the GOP wave election of 2010, continued to control the state Senate and the governor’s office.

Colorado’s 1252

TN Yager amendment

Once the legislative session eneded, however, Gessler drew heat for attempting but failing to prevent county clerks from mailing out ballots to inactive voters, or voters who failed to vote in 2010. He is now drawing scrutiny for seeking to loosen rules governing the use of electronic voting machines in the state.

Nothing new

Marcus Farmer, president of the Denver Chapter of the NAACP, characterized push back against the new voter laws as part of a long battle.

The NAACP was formed in reaction to 19th century voter-suppression efforts, he said. “What we’re seeing today is not new.”

“The fact is, these requirements serve to disproportionately affect communities of color. African Americans, Latino Americans, Asian Americans, students, working women, senior citizens, and immigrants in ways that have not been seen since the era following reconstruction… About 25 percent or 6.2 million African-American voters and 16 percent of Latino-American voters or 3 million people don’t possess the types of IDs being required in these states,” he said.

Minister Dawn Riley Duval with Denver’s Metro Organizations for People, put a positive spin on the new laws. She said the hurdles they erect to voting will serve to energize presidential election year get out the vote efforts.

“Why are we here today?” she asked. “We’re here to call out real voter fraud, which is when people use dishonest claims to make it harder for citizens to exercise our fundamental right to vote…

“We’re also here to serve notice. We’re here to let folks know we’re going to rock the get out the vote efforts like never seen before. Because, by trying to jack our votes, they reignited the fire in our bellies…. We’re more determined than ever to get voters registered and get voters to the polls, even if that means putting voters on our backs to get them there.

“They will not steal the youth vote. They will not disenfranchise Hispanic voters and African-American voters. They will not suppress senior citizens’ votes. They will not do it. They will not do it. They will not do it, not on our watch. They will not do it and that’s why we’re here today.”

Norden Testimony

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“The Democratic plan accepted by [Judge Hyatt] makes that a perfect tossup seat,” Colorado College Political Science Professor Bob Loevy told the Colorado Independent.

A Republican appointee to the state’s Reapportionment Committee, Loevy added that the many automatic advantages of incumbency Coffman would have enjoyed are now effectively gone.

“Is Coffman even really an incumbent in that district? He’s certainly not an incumbent in much of the district anymore.”

Tacking back to the middle

Loevy said Republicans didn’t appeal a similar redistricting ruling in 2000 and that there’s no compelling reason to believe an appeal would bring about any better results for Republicans this year. He thinks the new 6th District will stand and that Colorado politics watchers will soon see Coffman reverse the tack he took to the right this year.

“I will go ahead and confidently predict that Coffman’s politics will change,” he said, laughing. “That’s what politicians do. They’re very good at that. They change when their constituencies expand– when, for example, they move from a state office to a federal office. Well, in effect, that’s what has happened to Coffman. His constituency has vastly expanded.”

Loevy estimates that the number of voters who will now decide who represents the 6th District in Washington has jumped six fold.

“Instead of appealing to a small group of activist Republican primary voters, Coffman now has to appeal to a large number of more moderate Republican general election voters and to the large number of unaffiliated voters who now hold the balance of power in that district.”

The Tancredo factor

Coffman broke two days of silence on Hyatt’s ruling with a revved-up release Monday.

“Despite my differences with the decision, I’m excited about running in the new district and I’ve already started gearing up for a tough campaign.

“I love a tough race, and I’ve really missed not having had a challenge since the Republican congressional primary that I won in 2008. This will be a great opportunity to sharpen my skills.”

Coffman ran to represent CD6 in 2008 after conservative firebrand, anti-illegal immigration crusader and five-term Congressman Tom Tancredo announced he was retiring. The challenge for Coffman in holding Tancredo’s seat up until now has only been to stand up to primary challenges from the right. In 2010, the lopsided district pitted roughly 200,000 Republican voters against 100,000 Democrats and 130,000 independents. After sailing to victory over unknown Democratic challenger John Flerlage in the GOP Tea Party wave election last year, Coffman gave a short election night speech into which he packed a host of red-meat buzzwords from the heated campaign season.

“This election was a referendum on the failed policies of Barack Obama and his congressional allies,” he said. “This election today marks a serious defeat for socialism in America. This defeat is but one battle in a long war to take back our country.”

Coffman has not softened his rhetoric in the months since that speech, suggesting to many that he’s working to firm up his right-wing credentials in order to win the GOP nomination to go against Udall. There’s no arguing that the Tea Party has wrought havoc with mainstream Republican campaigns in Colorado and might do so for years to come, pushing out more moderate candidates in favor of hard right anti-government social conservatives.

A favorite topic for the Tea Party right in Colorado as elsewhere has been illegal immigration. Disgusted with Republican missteps in the governor’s race last year, Tancredo entered the race as the Constitutional Party candidate and whipped up supporters across the state with tough talk on immigration.

The lesson wasn’t lost on Coffman. In August, he announced plans to introduce a bill that would repeal a section of the 1973 Voting Rights Act, which requires jurisdictions with large populations of nonproficient English speakers to print ballots in more than one language. Coffman said printing ballots in Spanish, for example, to accommodate the rapidly evolving population of the state was just too expensive.

Immigrant and voting rights groups howled that Coffman was joining in Republican efforts launched across the nation to suppress the votes of traditionally Democratic constituencies.

“All voters in the state should be concerned about Coffman’s efforts to keep eligible U.S. citizens from participating in our elections by removing requirements for bilingual voting materials,” Elena Nunez from government watchdog group Common Cause told the Colorado Independent. She welcomed news that the new district would be more competitive.

“To the extent that a more competitive and more diverse district will create an opportunity for more dialogue about this issue, that’s good for Coloradans.” 

A couple of weeks after Coffman announced his plan to oppose the voting rights act, he went on talk radio in Colorado and said President Obama was secretly working to grant citizenship to millions of undocumented residents as part of a plan to get the new citizens to the polls to vote for Democratic candidates in 2012. Coffman said he wanted the press to look into the story, which reporters did, only to find the allegation baseless and absurd.

Loevy said Coloradans won’t be hearing any more of that kind of thing from Coffman any time soon.

“Those more conservative stands, they made perfect sense when Coffman was seeking to win support from the white upperclass Republican Douglas County primary voters who have dominated the district. Now he’s going to have to change all of that.”

Aurora power center

The new 6th District will include Aurora, a service-economy suburb just east of Denver brimming with Democratic voters and immigrant populations.

“If you talk to Aurora residents, they’ll tell you they live in one of the most diverse cities in the state. They’re probably right. A Democratic candidate could very definitely win that district now,” Loevy said.

Coffman, however, is not ready to surrender one of the new power-centers in his district.

“I grew up in Aurora,” he said in the release. “I’ve spent most of my life here. Aurora Democrats mostly come from hard working class families and they are not at all like the Nancy Pelosi liberal Democrats of Denver and Boulder… Many [past Aurora leaders] are veterans, and my Army and Marine Corps background will be a big plus.”

Olivia Mendoza, executive director of the Colorado Latino Leadership, Advocacy and Research Organization (CLLARO), told the Independent she is less concerned at this point with who represents the district than she is in realizing the power of the Latino community that now makes up 20 percent of its constituency.

“Our work is the same. We want our communities to vote. We want people to be empowered, to continue to mobilize to make certain their interests are represented.”

Mendoza grew up in Brighton, now also part of the 6th District, and she said that Brighton is like towns in much of the rest of the state, places where partly transient immigrant populations move from south to north and become long-term residents. She said her organization works with each community according to context, “whether they’re moving on or putting down roots, they have public interests and they have increasing power that comes with numbers,” she said.

The Democrats and the Tea Party

Denver Democratic state Rep. Joe Miklosi, who announced his candidacy for the 6th District months ago, has been pushing hard to raise funds in the wake of the news that Democratic chances for victory have just grown exponentially. For now, party players seem to be behind him. The Democratic state House caucus sent out a letter of support for him this week.

The opportunity presented by the new district boundaries, however, may yet draw a bigger name to the race. Either of the former Speakers of the House Andrew Romanoff or Terrance Carroll, for example, would bring “legions of fans, plenty of money and a note of serious intent to a Coffman challenge,” as the Colorado Statesman put it last month.

A tough general election race in the 6th would have the added benefit for Democrats of altering Coffman’s calculus for a 2014 U.S. Senate race.

“The problem for Republicans who want to run statewide is that they have to stay far enough to the right to get the nomination and then moderate for general election voters. In his old district, he would have to move right to win the primary. The problem is now reversed for Coffman,” Loevy said, referring in part to the intense Tea Party-fueled primary contests the state and nation have seen over the last two years on the right.

“Coffman has to move to the middle to win his own district. But then, can he win the Republican nomination [to run for the Senate in 2014]? That’s the question.”

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Government watchdog group Colorado Ethics Watch has been engaged in a legal back and forth with Secretary of State Scott Gessler over a campaign finance rule adopted by the Secretary of State last spring. In a brief filed with a Denver District court Wednesday, Ethics Watch argues Gessler is rewriting the law instead of merely setting forth rules directing citizens on how to abide it, and, in a counter claim, Gessler is asking the court to effectively throw out a constitutional provision he has sworn he would defend as an elected official.

Gessler has asked the court to declare the legal definition of an “issue committee” unenforceable, meaning he effectively would do away with issue committees and the financial and reporting laws that apply to them until if and when the legislature would remake them.

“It’s breathtaking,” Ethics Watch Director Luis Toro told the Colorado Independent. “As a representative of the state, [Gessler] would normally be the defendant in such a case… But he’s effectively asking two private organizations to defend the Colorado Constitution from his complaint. How can he sue two organizations that don’t represent the state?

“Gessler would normally be expected to defend the laws defining issue committees… It’s a legal obligation. He has no authority to file a suit against them.”

Gessler is a longtime campaign finance attorney who has battled disclosure rules and donation limits. He sees them as hurdles to public participation and threats to free speech.

In November of last year, the Tenth Circuit Court of Appeals in Sampson v Buescher decided that the burden of the state’s reporting requirement was too high for a group organized around a municipal election. Gessler’s new reporting rule came in response to that decision. It shifts the registration and reporting threshold for issue committees from $200 to $5000. The rule also eliminates the requirement to disclose any information about the first $5,000 of issue committee contributions and expenditures.

Ethics Watch and Common Cause, also a state government watchdog organization, have asked the district judge to throw out Gessler’s “breathtaking” counter claim seeking to effectively explode issue committees as a category in the state and are fighting Gessler’s new issue committee finance rule as an attack on transparency.

The groups cite Amendment 27 passed by voters in 2002 which proscribes campaign finances in the state. It also established disclosure rules, including the $200 threshold for issue committees. The point of the law is to make it easier for citizens to know who is behind public proposals and to know from the beginning. Colorado voters want to know when a chemical company is pushing to roll back clean water regulations and when a labor union is fighting a free-market policy.

“With the passage of Amendment 27, Colorado voters overwhelmingly signaled that they wanted full disclosure in political campaigns,” Elena Nunez, program director of Colorado Common Cause, said in a release. “It is frustrating to see the Secretary of State actively working to undermine the Constitutional provisions he swore to uphold.”

The Gessler counter claim calls to mind complaints leveled at the Obama administration when its justice department announced it would no longer fight lawsuits targeting the Defense of Marriage Act because because it viewed the law as unconstitutional.

“That’s an interesting comparison, actually,” said Toro, meaning he thought it was revealing. “Gessler here is taking it a step further. The Justice Department merley said it would no longer defend the law. That’s different than effectively filing a suit to have it repealed.”

Toro pointed out that when pro-gay groups sued to repeal Amendment 2, a voter-passed initiative of the 1990s that prohibited anti-discrimination ordinances in the state, they sued Governor Roy Romer and representatives of the state defended the anti-gay Amendment even though they personally opposed it.

“That’s our tradition,” Toro said.

“As an elected official, Scott Gessler is expected to put aside his personal views and defend the Colorado Constitution,” Toro said in a release. “Instead, he has ignored our government’s separation of powers by attempting to use his office to not only enforce the law, but also to legislate as well as interpret the law.”

The briefs from Ethics Watch and Common Cause and Gessler’s response and counter claim are available for download here.

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Colorado Common Cause will hold a rally Sunday in Avon to protest a Vail Valley retreat this weekend set up by conservative political donors Charles and David Koch.

The Koch brothers.

Colorado Common Cause today issued a release saying it will join with labor organizations and other progressive groups to “protest against oil/corporate billionaires Charles and David Koch’s efforts to control the nation’s future by spending hundreds of millions of dollars in secret money” on campaign ads.

The protest is set for 11 a.m. to 1 p.m. Sunday by the lake in Avon’s Nottingham Park. There has been no official confirmation that the twice-a-year Koch retreat will be held this weekend at the Ritz-Carlton, Bachelor Gulch – which recently went into foreclosure protection — or whether it will be held at some other Vail Valley location. Several websites have reported the event will be at the Ritz.

Common Cause, however, seems fairly certain the event will at least be in the Vail area, planning its protest in Avon “because American voters deserve to know who is behind the ugly political ads.” Avon is 10 miles to the west of Vail at the base of gated Beaver Creek Resort, which hosts the annual AEI World Forum conservative think tank.

On Wednesday, Virginia Gov. Bob McDonnell released his schedule, which said he would be attending the Koch seminar Sunday in the Vail area. Last year the Kochs held a retreat at the St. Regis in Aspen.

Word that a retreat hosted by conservative mega-donors Charles and David Koch is coming to Colorado has spurred activists across the state into action. Colorado Common Cause, ProgressNow, Moveon.org, and others plan to meet and protest in Beaver Creek, Sunday morning.

The news first broke Wednesday that the brothers would be hosting their twice-yearly event in the Vail area after Virginia Gov. Bob McDonnell released his schedule, which noted he would be attending the Koch seminar Sunday.

Upon hearing the news, progressive groups, environmental organizations and numerous other groups immediately began an effort to both mobilize their membership and determine the location of the secretive gathering.

The groups now believe the event, which has seen such politicos as Rush Limbaugh and even Supreme Court Justice Clarence Thomas, will be taking place at the Ritz Carlton Resort at Bachelor Gulch. The Colorado Independent could not confirm the location, though Colorado Pols reported they had similar information that came from a number of sources.

Jenny Flanagan, executive director of Colorado Common Cause, told the Colorado Independent that their event would be out in the open, unlike that of the Kochs’.

She said she and other activists planned to meet at a nearby park where they will speak to issues they feel are important–issues, which in many cases, the Koch brothers and the organizations they fund, such as the American Enterprise Institute, directly combat.

“They are going to be spending millions of dollars influencing the 2012 races and campaigns this weekend,” Flanagan said. “The attacks (will be) on the public worker, social security and environmental protections.”

She said while it was fitting that the brothers, who spend considerable amounts of money on hiding their political spending, should host an invitation only summit, their continual pushing against public disclosure of corporate campaign dollars, among other policies, make them a top concern for the organization.

“We are trying to bring together people who will stand up against this affront on our Democracy,” Flanagan said.

From the ProgressNow web site:

The Koch brothers are major funders of right-wing fringe groups who make up the so-called Tea Party, and wield tremendous influence in conservative politics. The Koch brothers have provided millions of dollars to fund recent attempts to privatize Medicare and Social Security. Previous Koch conferences have featured a virtual “who’s who” of right-wing politics, from Ann Coulter to Justice Clarence Thomas. And after the unexpected and lively protest of their last conference, you can understand why they tried very hard to keep the latest one quiet.

This Sunday through Tuesday near Vail, the Koch brothers will host an invitation-only discussion between wealthy funders and right-wing elected officials to develop their plans to spend tens of millions of dollars of corporate money on the 2012 elections. Many Colorado conservative officials and donors can be expected to attend. In the aftermath of the Citizens United decision, unprecedented amounts of corporate money is expected to be funneled into the political process next year.

Secretary of State Scott Gessler failed to get through the state Legislature a bill Monday that would have targeted those who registered to vote while not being U.S. citizens. As the bill crumbled under Sen. Rollie Heath’s gavel in the Senate State, Veterans, and Military Affairs Committee, Gessler told the Colorado Independent that there may still be a few tricks up his sleeve.

Scott Gessler and Ted Harvey argue for HB 1252 (Boven)

In an earlier committee meeting for HB 1252, Gessler had told committee members that if the bill didn’t pass he would probably provide district attorneys or the attorney general’s office with information he says may be enough to prosecute those suspected of having violated the law by registering to vote without being a citizen. Asked if he planned to move forward with that decision, Gessler said it was something that was still on the table.

“It is something that you have to consider,” Gessler said. “You have to look at the tools that are available.”

Still Gessler said he would have preferred that the bill simply passed.

“The frustrating thing is that it doesn’t make sense to investigate 12,000 people and that is what they are saying we should do,” said Gessler.

Despite appearing in numerous hearings in Colorado and in Washington and despite being pressed by the media, Gessler has not demonstrated that illegal voting has taken place in Colorado by a non-citizen.

Gessler has put forward his own office’s research to back up his claims that non-citizens are registered and could have voted in Colorado. Yet that research has come under attack for its methodology by voter advocacy groups, especially given the sweeping powers Harvey’s bill would grant Gessler and subsequent secretaries of state to throw voters off the rolls.

At the hearing Tuesday, Sen. Rolllie Heath predictably pressed Gessler on these points. Heath said that Gessler’s contention of thousands of non-citizen’s on the voter rolls simply was not supported by the data Gessler presented. He likened the bill to a witch hunt.

El Paso County Clerk and Recorder Wayne Williams, however, was unambiguous about his future plans. He said he planned to contact by letter those people in his county Gessler suspects of being illegally on the voting rolls.

A man engages Scott Gessler over what he sees as racial overtones in HB 1252 (Boven)

“If they don’t respond (to the letter), you either have to go with law enforcement or you get someone to challenge individual voters. But this bill would have provided a better process,” Williams said.

He said he wasn’t sure if he would contact the sheriff’s office or the DA’s office but that certainly he would be working with Gessler to determine the best way to remove individuals from the voting rolls who do not belong there.

Gessler, after taking office in November, paired drivers licenses with voting records and found that many people who were registered to vote were not U.S. citizens at the time of registering. He said in the case of about a hundred of those individuals, they registered to vote before attaining a driver’s license or got their driver’s license the same day.

Heath was having little of Gessler’s study. After reading a letter by Colorado county clerk and recorders that called the bill unnecessary, Heath said that Gessler’s study provided no real evidence and was based on conjecture instead of scientific rigor.

“Why is this something other than a witch hunt?” Heath asked.

Gessler said that it wasn’t a witch hunt because he is not looking at it from a prosecutorial standpoint, but instead from an investigative role. He said all he is doing is trying to remove individuals from the roll who are not voters, and he said he has no intention of pressing charges.

Heath’s dismissal of the need for the bill, however, was shared by voters’ rights advocates who had come to testify against the bill.

Common Cause, New Era Colorado and others attacked the legislation from a multitude of angles but returned time and again to the use of databases not designed to provide the data Gessler was using them for. They said current laws and penalties in place for those voting illegally should be more than enough to deter people from doing so.

Gessler said that it was likely that many of the individuals on his list suspected of currently being on the voter rolls illegally may have actually become U.S. citizens since the time they registered to vote. However, he explained it was just as likely that many of them were still ineligible to vote and he said that ensuring that they were legally voting was not too much to ask.

Advocates disagreed and said that the chilling effect that the bill could have on some citizen’s voting rights did cross the “too much to ask” threshold.

Sen. Rollie Heath fails to find any humor in SB 1252 (Boven)

The bill, sponsored by Sen. Ted Harvey, R-Highlands Ranch, would have required the secretary of state to check voter rolls against not only driver’s license records but also against Immigration and Custom Enforcement’s database, jury summons recusals, and other governmental databases. Those suspected of being illegally on the voting rolls would have been asked to provide proof of citizenship within 90 days. In addition, the bill would have ensured the state would pay for the birth certificates of those citizens who could not produce or afford to produce a birth certificate.

When asked by Sen. Bob Bacon, D-Fort Collins, if he had evidence to prove that illegal voting was going on in Colorado, Gessler said he did. He said that he could redact names and provide files.

Bacon said that he was asking if there was evidence for a conviction, not an accusation. Gessler said he could not provide such evidence.

Bacon said he may very well change his vote if a conviction came about.

Gessler told the Colorado Independent that that he wanted to wait to release the specifics about how the study was conducted until a later date.

On a humorous note, Rob DuRay, Field Director for New Era Colorado, in testimony asked if Gessler could verify whether President Barack Obama’s birth certificate was real or not.

“I want to know the answer,” DuRay told the Colorado Independent while holding up a copy of Obama’s birth certificate.

The bill died on a party line vote.

“Spanish-language outreach and education is a major concern,” Jenny Flanagan of Colorado Common Cause told the Colorado Independent. “Ten counties are now required to include Spanish language material but that is based on ten-year-old census numbers. A handful of counties at least will switch [to require Spanish materials] with the new census figures. Weld and Adams Counties for instance could follow Eagle County in providing some Spanish material this year even though it’s not yet required.”

Flanagan said she realizes there are costs involved and that in a recession economy it’s tough to make the case for dedicating additional resources to getting out the vote but, she said, working to draw more eligible voters to participate in their government is a most worthy cause. Toward that end and with an eye to making the most of strained resources, Flanagan said Common Cause is already working to encourage county clerks to team with state and local organizations to draw out voters– organizations like Mi Familia Vota, which is already doing the same kind of work.

Flanagan said individual fraud– where people pretend they are someone else in order to cast repeat ballots, for example– is not a problem in the state despite talk radio reports warning of such abuse.

Flanagan said the real problem here as elsewhere is coordinated campaigns launched by partisans up and down the political spectrum. She referenced reports she received on Election Day 2008 of a disinformation campaign that featured text messages sent out erroneously telling voters that if they missed voting on Election Day they could simply vote the following day. Other groups sent out volunteers to tell voters approaching polls that only English speakers could cast ballots.

Flanagan said in such cases, clear rapid responses should come from trusted sources, like the Governor or the Secretary of State. “Voting is on this day alone.” “All are eligible to vote.”

Despite the growing mountain of evidence on the unreliability of electronic voting systems, two large counties in Colorado– Jefferson and Arapahoe, still require no paper record of votes cast. Colorado does, however, have a strong post-election results audit, according to Flanagan.

“Because Colorado is the site of several close federal and state races, voter participation rates could have a game-changing impact on election results,” argues the release accompanying the report.

In the last few elections Colorado has gone from a predominantly Republican state to a predominantly Democratic state. Many observers expect the 2010 elections to be a watershed. If Republicans can’t win back seats this year, goes one line of thinking, they may not for many years.

Colorado election protection and information sites provide key information in English and Spanish. Just Vote Colorado is one comprehensive resource.

The Common Cause Demos report, “Voting in 2010: Ten Swing States” (pdf), details a lot of the problems found in Colorado and around the nation. From the Common Cause-Demos release on Colorado:

A number of notable obstacles to full voter participation in Colorado were found.

· Citizens must register a full 29 days before the election, long before many voters become aware that an election is upcoming.

· Election officials conduct no formal outreach for immigrant or language minority voters, though the state has more than 150,000 immigrant citizens and at least 404,000 eligible Latino voters. The state’s Elections homepage does not offer Spanish translation and only precincts composed of three percent or more non-English speaking eligible voters are required to recruit bilingual staff members.

· Colorado lacks any law directly banning dissemination of deceptive information, leaving the state open to the use of phony flyers as well as online dissemination of misinformation meant to disenfranchise voters.

· Voting rights are restored automatically to felons released from parole but that information is not effectively conveyed to the public. In fact, the state’s website says “no one will tell you when you are eligible to vote.”

· Voting may be more difficult for Coloradans in the military and overseas than it is for their counterparts from other states. Colorado applied for but was denied a waiver of the recently passed federal requirement that absentee ballots be sent out 45 days in advance to overseas voters who have requested them prior to that time; the waiver was denied.

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Sponsored by Rep. Larry Liston, R-Colorado Springs,  and Sen. Pat Steadman, D-Westminster,  HB 10-1092 would have provided for a lobbyist identification card that would allow lobbyists who paid fees associated with the cards to avoid passing through the fairly low-hassle airport-style capitol entrance security, which includes placing bags through scanning machines and emptying pockets before walking through a metal detector. The fee would have covered the cost of the card, a criminal background check and surcharges up to $300.  The cards would have had to be renewed annually for at least $50 and background checks would have had to be updated every three years. The bill aimed to place money gathered thorough the program into a fund for legislative expenses.

Critics said the bill would give privileged fast-track access to lobbyists willing to spend the money. Lobbyists holding the cards could have come and gone at the capitol with the same easy no-stop access enjoyed by lawmakers, giving the lobbyists the freedom for example to stroll uninterrupted side by side with lawmakers while chatting them up.

Liston told the State, Veterans, & Military Affairs Committee attendees that the intent of his bill had been distorted.

“The lobby core is given nothing. They have to earn [the card],” he said. “House bill 1092 is a win, win situation. It is good for the state, it is good for the citizens, it is good for the operations around the capitol and it is fully paid for. It makes good common sense.”

The committee disagreed.

Rep. Joe Miklosi, D-Denver, said that his constituents were concerned that a special class would be created and it would be made up the state’s most highly paid lobbyists. “It just doesn’t compute in terms of passing the smell test.”

Liston pressed back, laying out a surprisingly frank assessment of capitol culture.

“These are men and women who work in the capitol every day… They have a code of ethics unlike the public, which I don’t have a problem with, either.

“As to your point that we are cutting out a special deal or exception, well that’s what we do here. We are cutting special deals for individuals or groups every day. This will not be the first group of people that we have made a cut out for.”  

He said the bill would help the state run more efficiently and that it would streamline the work of capitol State Patrol personnel.

Rep. B .J. Nikkel, R-Windsor, said she appreciated the effort to work toward greater efficiency but asked if Liston would be willing to allow more people who work in the capitol to undergo similar background checks to avoid the security lines.

Liston said that he would support expanding the legislation to encompass others.

Testifying at the hearing, Colorado Common Cause noted that the bill might create a hierarchy among those looking for access to legislators. Director Jenny Flanagan said that the cost of the cards imposed by the surcharge could exclude volunteer lobbyists from the program.

“If a legislator is talking to a lobbyist and they get to a [security] line, well the lobbyist who can afford the card will be able to continue talking with that legislator. But that citizen who wants to continue that conversation with that legislator has to get in that line. Same for the lobbyist who couldn’t afford it. So I think that there is a problem with creating special access.”

Liston said that he would be willing to provide a sliding scale for lobbyists.

Lobbyist Becky Brooks told the committee the bill was not without precedent. She said in past years, before the introduction of the screening machinery, lobbyists were provided badges that allowed them to enter without going through security. She said, in effect, that the bill was being distorted by the press, which was catering to anti-lobbyist populist sensibilities. She said members of the press were saying the bill aimed to create a “Lexus lane for the lobbyists.” 

“This is not about inequality. This is about security. And about giving time to the state patrol to give a more thorough search to those who do not come through time after time after time.”

Rep. Dickey Lee Hullinghorst, D-Boulder, said her constituents were having none of it.

“What I am hearing is that they really resent this. There is a feeling from the average citizen that we just listen to the special interests.” She said it was important that public perception not be tainted by further apparent catering to special interests.

Committee Chair Rep. Nancy Todd, D-Aurora, said that the bill would simply create a statute that would allow one group of people to have admittance that was not provided to other citizens. She said she was unwilling to support the law, as it would be the first law in Colorado history to do so.

“I had a town hall meeting yesterday and everyone of my constituents there felt it was unfair. ‘Why should a lobbyist go in the door before me? I am a citizen. It is a citizens house.’”

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(Photo/iceman9294, Flickr)

The initiative overlaps with other laws, they said, for example, and may override or undercut them. In addition to its stated reductions, it will also surely limit public funding in myriad other ways. A red light glowed on the table to remind all parties that the conversation was being recorded, as if it mattered.

Although Schroeder nodded, listened courteously, answered questions and offered opinions, he made no significant concessions. He likes his initiative the way it is. He’s not changing it, and he doesn’t have to: What goes on in the hearing room stays in the hearing room. No one else in the process will look at this substantive report. Schroeder’s “Colorado Ballot Proposal 2009-2010 #7″ will now sail toward minimal review at the state’s Title Board hearing, and then, outfitted with enough supporting signatures from citizens, will land on your amazingly expanding Colorado ballot in the next election.

In light of the list of lawsuits lining up to challenge the constitutionality of many recently passed initiatives, you would think the language of citizen ballot proposals would draw more scrutiny. But the process prevents that. Gatekeeping is intentionally kept to a minimum. Voters alone decide on the merits — constitutional and otherwise — of the state’s ballots.

“We’re here entirely to aid [the ballot initiative authors], to learn their intent and offer suggestions,” said one of the Legal Services staff attorneys after the hearing. “That’s our sole mission as laid out by the state statutes … The Title Board doesn’t look at our reports.”

Solicitor General Dan Domenico, the attorney general’s representative at Colorado’s growing number of ballot initiative Title Board hearings, fully agrees. “Oh no, I have no idea what goes on in those [review and comment] sessions. All of that is for initiative proponents. I never look at any of that,” he admits.

“I go in pretty much cold. I read the initiative maybe just before the hearing and base my analysis on what happens during the hearing. I have an old file of initiatives I bring with me that I can draw on if questions come up. [The Title Board hearing] is not a substantive review — at all. We’re extremely limited.”

On the matter of the constitutionality of initiatives, say, or their legal or legislative ramifications, Domenico said his office doesn’t consider any of that at any point before an initiative is passed. “That’s not the mandate,” he said. “The [Title Board] is not an effective check,” he said, laughing. “But we have to deal with the consequences. I wish it were.”

In addition to Domenico, the Title Board includes Deputy Secretary of State Bill Hobbes and a staffer from Legal Services, all of whom at the hearing focus exclusively on answering two questions: Does the initiative under review restrict itself to a single issue? And does the “title” — the short description that will appear on the ballot — accurately describe the contents of the initiative?

The idea is to prevent initiative authors from folding topics together so that, in effect, they would force voters who want to support one part of an initiative to vote for that part as well as something else, whether knowingly or not. Authors also can’t clumsily muddy the initiative topic or write it to intentionally confuse voters, who might think they’re voting for stricter pollution laws, for example, only to discover the opposite.

In other words, as long as you stick to a single subject and write clearly, you can propose pretty much anything.

“Yep,” said Rich Coolidge, spokesperson for the secretary of state’s office. “It’s a citizen-initiated process. It’s for the voters to judge [in deciding] to accept or reject the proposals.”

Many analysts of ballot initiatives don’t consider the state, much less state lawyers, as an integral or even desirable part of the initiative review process. Rather, the requirement to secure the right amount of citizen signatures to place an initiative onto the ballot is what matters — as well as the vote itself, the theory being that in both cases it’s the citizens directly who are deciding to advance initiatives and make them laws.

It’s not a perfect system, said Elena Nunez, program director at Common Cause, a citizen advocacy organization. “But we think it works. It gives citizens the opportunity to make changes and reforms that legislators just won’t touch, like campaign finance reform, for example … Historically, voters are good judges. They toss aside bad initiatives all the time.”

Nunez said the Colorado review process may be lean but it’s a process at least. “The comments Legislative Council provides are very thorough and helpful, 10 and 20 pages of comments. Those are great.”

Click to download the Initiative & Referendum Institute report (PDF)

Although research has downplayed the role of special interests, it hasn’t fully taken into account Colorado’s recent explosion in the initiative process.

In the 1990s, for example, when the present wave of ballot initiative popularity began, the national Christian Coalition and other religious right organizations poured $387,000 into the state’s so-called parental rights initiative campaign.

Four years earlier, the Christian Coalition backed a Colorado initiative that would have prohibited the state from adopting anti-discrimination laws for gays and lesbians.

There are presently 10 proposed initiatives in the state docket for 2009-10. That number is likely to grow quickly in the next few weeks so that Title Board hearings can be set and signatures collected in time to make the ballot.