On Friday, Administrative Law Judge Robert Spencer ruled that Clear the Bench Colorado, a group campaigning against retaining three Colorado Supreme Court justices this November, improperly filed with the state as an issues committee and that it must now file as a political committee. The ruling comes after a complaint filed by government watchdog group Colorado Ethics Watch. The ruling limits Clear the Bench fundraising and ups the group’s obligation to report contributions (pdf). It is the latest chapter in a legal battle colored by partisan rhetoric and suspicion and it is likely not the final chapter.
“I just heard about it and it’s a bit of a shock I can say from what I know right now,” Clear the Bench director Matt Arnold told the Colorado Independent Friday afternoon. “It looks like the judge threw out all the testimony in court in order to rule with [Ethics Watch].”
Ethics Watch Director Luis Toro said the ruling was “a victory for Colorado voters who said in 2002 that judicial elections should be governed by the same rules that apply to other candidate elections.” He said the point of restricting money in candidate elections was to limit the influence of the small percentage of wealthy constituents. He said Clear the Bench is advocating against the justices as candidates and, in a release, argued that Judge Spencer’s ruling was a “victory for an independent, nonpartisan, merit-based judicial system in Colorado.”
Contributions to issue committees are not capped but contributions to political committees are capped at roughly $500. The thinking is that issues– words in the state constitution that, for example, might bar recreational drug use– can not be corrupted. The law is the law, although interpretations of the law vary. Candidates, however, are people, and people can be corrupted and campaign cash might influence how they act in office before and after elections.
As an issue committee, Clear the Bench has been asking for and accepting uncapped donations. “Contribute $10, $20, $30, $40, $50 or more (roll up the score -contributions of $100, $200, $500, or even thousands are both legal and welcome – as an Issue Committee, Clear The Bench Colorado has no ceiling on contributions),” reads the group’s website contribution page. That language will have to be updated. Spencer gave the group 20 days to change its registration with the Secretary of State’s office.
A firebrand small-government polemicist and National Guardsmen, Arnold has been traveling the state for more than a year railing against Justices Michael Bender, Alex Martinez and Nancy Rice. He argues the justices are liberal activists with “contempt for the law,” as he put it during testimony last Wednesday, mainly for decisions they have supported that have allowed lawmakers to raise revenue. Arnold argues they have used their position on the bench to circumvent the will of the people and weaken the power of the state’s Taxpayer’s Bill of Rights, which requires lawmakers to submit tax raises to a vote of the people.
Arnold also sees Colorado Ethics Watch as an organ of liberal interests that targeted Clear the Bench for political reasons that had nothing to do with good government.
“This is part and parcel of [the Ethics Watch] strategy to tie us up with these attacks and drain our resources. Ultimately, though, it hasn’t worked. We’ve gotten the message out to voters who are reawakened to this issue,” he said.
In court, Arnold and his attorneys argued that Clear the Bench wasn’t just about removing the three justices but also about educating voters that they had the right to remove justices. That’s the issue that made Clear the Bench an issues committee, they said.
Ethics Watch said that picture of reality was “separating the wind up from the pitch,” that Clear the Bench was chiefly formed and working to removing the three justices.
The Clear the Bench case was built on the long trail of advice offered to Arnold by the Secretary of State’s office. Staffers there repeatedly told Arnold in correspondence and face to face that they believed Clear the Bench was an issue committee and they testified to continuing to believe that for Judge Spencer.
Ethics Watch, however, made clear that its complaint was not that Arnold got bad advice or was flouting the law by following the advice of the Secretary of State. The group argued that, in fact, the Secretary of State’s advice was not binding and that the Secretary of State staffers knew as much all along and told Arnold as much– that ultimately he should follow the advice of counsel.
Indeed, the fact that the case had made it to Spencer’s courtroom, in effect, made the point for Ethics Watch. Arnold had asked for a Secretary of State rulemaking on the matter to put the question to rest. The Secretary of State’s office declined, saying that there were good arguments on both sides of the case and that it should be decided in court, where legal precedent would be set. The staffers also testified to that effect Wednesday.
“We think it was entirely appropriate that the case went to the judge,” said Toro. “Issues and candidates are defined terms in Colorado law. We thought that the whole time. Judges are candidates. Judge Spencer agreed. All the rest was just in addition to those facts… The objective is to keep big money out of judicial elections so citizens can have confidence in the system.”
Ethics Watch was assisted in making its case by Aaron Goldhamer of Sherman and Howard. Arnold was represented by GOP Secretary of State candidate Scott Gessler and the firm Hackstaff Gessler
Arnold said he is likely to appeal. “It looks that way, like that’s what’s got to happen here,” he said.
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