True, Secretary of State Scott Gessler has made some public-relations missteps, as when he attended a Larimer County Republican fundraiser in September to cover campaign-finance fines that Gessler's office oversaw. On the whole, though, Gessler deserves praise for having the guts to stand up and take heat for what he believes in: the principles of free speech. Indeed, Gessler deserves the national title as the Free Speech Secretary of State.
Gessler has done the best he can to make sense of the contradictory, often-ambiguous mish-mash of Colorado's campaign finance laws and court rulings about them. His job in that regard is not an easy one: the voter-approved section in Colorado's Constitution gives him one set of directives, while judges give him another, and he must craft the rules guiding the process.
The problems begin with the campaign-finance laws, which inherently violate rights of free speech. As we wrote back in May, those laws specify that, to speak out for or against any ballot measure while spending over $200, you "must first register with the proper authorities, then report to those authorities the names and addresses of every significant donor to your cause, as well as all of your significant expenses... on penalty of daily fines, and in accordance with a hundred pages of dense legalese." Obviously those laws undermine free speech and discourage civic participation.
The courts should throw out the entire mess on First Amendment grounds. Instead, last year the 10th Circuit Court ruled that the $200 "trigger" for reporting is unreasonably low. But the court declined to specify a more reasonable amount, leaving Gessler to implement the rules without clear guidance. Gessler reasonably drafted rules setting the "trigger" at $5,000, meaning if you don't spend that much, you don't have to file and comply with the paperwork requirements. Gessler did the best he could to protect free speech within the constraints of the campaign laws and the court decision.
But on November 17, Denver District Court Judge Bruce Jones threw out the $5,000 trigger, recognizing Gessler's "conundrum" but again declining to offer any clear guidance.
Thankfully, Gessler announced he'd appeal Jones's ruling. In a news release Gessler described the problem precisely: "Under Judge Jones' ruling, we have one threshold for $200 and another threshold for 'some other amount.' We want to encourage participation in our political process but the ruling today only further confuses an already complex process." In other words, without a clear "trigger" for reporting, activists have no idea when they have to file or whether they'll get sued for not filing. Such ambiguity leads to after-the-fact rulings that violate citizens' rights and undermine the rule of just law.
In a December 15 meeting, Gessler will reassert the need for the $5,000 "trigger" and offer numerous other rule changes as well. The Denver Post summarized two other major proposed rule changes: limit to 180 the number of days the $50 per day fine accrues, and confirm that groups must "expressly advocate" a candidate or measure in order to fall under the campaign laws. (Rich Coolidge, spokesperson for Gessler's office, confirmed that those three rule changes will be on the table; those wanting more detail can find the 58-page document on the Secretary of State's web page.)
Regarding the fine limit, it's just not fair for hostile, political attack groups to be able to sue somebody long after the fact and keep racking up daily fines.
As for the language about "express advocacy," our ability to speak out on candidates and issues goes to the heart of the First Amendment. The legal issue is that some groups run ads praising or castigating some candidate or issue without actually suggesting how people should vote. If you tell people how to vote, you use the so-called "magic words" that trigger the campaign laws. Incidentally, the Colorado Supreme Court will hear a case about this, though the mere fact that we're discussing "magic words" illustrates nicely why the campaign laws by their very nature violate free speech.
Unfortunately, Gessler has been been relentlessly attacked by leftist activists who champion censorship of political speech, including Luis Toro of Colorado Ethics Watch and Jenny Flanagan and Elena Nunez of Colorado Common Cause.
The left is obsessed with the idea that, somewhere, someone may spend their own money to advocate their political beliefs. But free speech is central to our liberties, and that right is meaningless without the physical means to advocate our beliefs. Often that requires spending money. Yet many on the left would restrict our political speech in many contexts and open the door wide to more far-reaching forms of censorship.
When Flanagan debated Ari on television earlier this year and Ari brought up the First Amendment, she retorted, "That's not part of the conversation right now." Thankfully, Gessler is doing what he can to change that.
Linn Armstrong is a local political activist and firearms instructor with the Grand Valley Training Club. His son, Ari, edits FreeColorado.com from the Denver area.
Note: See also Diana Hsieh's detailed summary of the proposed rule changes in a first and second post.
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