Mark Grueskin
Heizer Paul Grueskin LLP
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Address or limit the amount of money in politics?
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Even out electoral playing fields?
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Constrain independent spending?
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Expose secretive groups (501(c)(4)s and out-of-state
organizations)?
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Limit coordination between independent groups &
candidates?
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Encourage consistency or fill in the holes in campaign
finance rules?
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Ensure legitimacy of election process and legitimacy
in governing process (anti-corruption).
Maximize political debate.
Provide full disclosure of contributions and
expenditures by campaigns, political parties, and
independent groups.
Foster voter understanding of the identities of
political speakers.
“Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a
redress of grievances.”
“No law shall be passed impairing the freedom of
speech; every person shall be free to speak, write or
publish whatever he will on any subject, being
responsible for all abuse of that liberty; and in all
suits and prosecutions for libel the truth thereof
maybe given in evidence, and the jury, under the
direction of the court, shall determine the law and the
fact.”
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Electioneering communication
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Express advocacy
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527
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501(c)(4)
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Political organization
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Independent expenditure committee (“Super
PAC”)
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1996 – Amendment 15 (Campaign finance reform:
statutory)
2002 – Amendment 27 (Campaign finance reform:
constitutional)
2008 – Amendment 54 (Prohibit campaign $$ by
unions: “sole source govt. contractor”)
2012 – Amendment 65 (Seek constitutional
amendment to address Citizens United)
[T]he interests of the public are best served by:
- limiting campaign contributions,
- encouraging (ESTABLISHING) voluntary campaign
spending limits,
- providing for full and timely disclosure of campaign
contributions, independent expenditures, and funding of
electioneering communications, and
- strong enforcement of campaign finance requirements.
Colo. Const., art. XXVIII, § 1.
=
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“Where the First Amendment is implicated, the
tie goes to the speaker, not the censor.”
Wisconsin Right to Life v. FEC, 551 U.S. 449,
474 (2007).
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Hillary: The Movie and related advertisements.
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Anti-corruption: rationale for campaign finance restrictions.
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Corporations can engage in independent political speech
advocating candidates.
Disclosure of contributions/expenditures and disclaimers on
ads are reasonable – and constitutional - expectations of
independent political speakers.
But see Bluman v. FEC, 132 S. Ct. 1087 (2012) (prohibition on
independent expenditures by foreign nationals upheld).
1,070,000,000
32
5.7
http://reporting.sunlightfoundation.com/2012/Return-on-investmet-story/
http://www.politico.com/news/stories/1112/83658.html
Candidates
Independent side
Candidates/Independent Side
Coordinating with campaigns
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Buckley v. Valeo: truly independent political speech
does not raise corruption concerns.
SOS Campaign Finance Rules 1.4 (defining
“coordination”) and 1.14 (defining “nonpublic
information”).
Rules apply to independent expenditures and
electioneering communications, if undertaken visa-vis candidates or political parties.
Candidates; independent expenditure
committees & electioneering
communication groups
501(c)(4) organizations
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Surfaced in 2008 ballot issue campaign; penalized
for failure to register and report as an “issue
committee.”*
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2010 candidate campaigns: Western Tradition
Partnership (Montana entity).**
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2012 candidate campaigns: Compass Colorado and
possibly others.
* See http://www.tracer.sos.colorado.gov/PublicSite/SearchPages/ComplaintDetail.aspx?ID=92;
Cerbo v. Protect Colo. Jobs, 240 P.3d 495 (Colo. Ct. App. 2010);
http://www.eqs.nictusa.com/eqsdocsMUR/29044242207.pdf
** See American Tradition Partnership v. Bullock, 132 S.Ct. 2490 (2012).
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No anti-corruption rationale applies to issues.
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No limits on amounts of contributions.
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No limits on total expenditures.
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No limits on identities of contributors.
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Disclosure mandated: contributions and
expenditures.
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Increase candidate contribution amounts.
Remove the prohibition on in-session contributions
to non-incumbents (candidates for legislature and
governor).
Increase political party contribution amounts.
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Colorado oversees independent expenditure
committees (Colo. Const., art. XXVIII, §§2(7), 5;
C.R.S. §1-45-107.5; SOS Campaign Finance Rule 5)
and groups distributing electioneering
communications (Colo. Const., art. XXVIII, §§2(9),
6; C.R.S. §1-45-108.5, C.R.S.; SOS Campaign
Finance Rules 1.7, 11).
Clarify statutes to ensure enforcement of
subpoenas on out-of-state entities, consistent with
Court of Appeals precedent in other areas.
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Re-regulate “multipurpose issue committees.”
Provide complainant with notice & opportunity to
be heard where respondent seeks waiver of
penalties.
Prohibit penalty waivers for entities that refuse to
timely disclose sources of contributions and actual
expenditures.
“Everything with campaign finance is politically
motivated. People destroy their enemies and help
their friends.”