I’m delighted to report that my own Coalition for Secular Government was mentioned in a recent column in the Wall Street Journal: Bradley Smith: The Supreme Court and Ed Corsi’s Life of Political Crime. Here’s the relevant tidbit:

In Buckley v. Valeo (1976), and again in Federal Election Commission v. Massachusetts Citizens for Life (1986), the Supreme Court held that the regulatory requirements of operating a political action committee could not be imposed on groups that lacked the primary purpose of supporting or defeating political candidates in elections. But across the country, states are flouting that command, imposing rigid requirements on ordinary citizens who are trying to express their political opinions.

In Colorado, for example, a group of friends calling themselves the Coalition for Secular Government operate a website on which they posted a long policy paper on abortion and church-state relations. The paper concluded by urging Coloradans to vote “no” on a ballot measure. For that, the state says they must register as a political committee and report their activities, income and expenses.

The article begins with an even more egregious case than ours, and it’s well worth reading.

 

I’m thrilled and excited to announce that the Coalition for Secular Government’s lawsuit on campaign finance will be heard by the Colorado Supreme Court tomorrow at 10 am. The hearing will concern the four questions about the relevant law that our judge in federal court — Judge Kane — asked the Colorado Supreme Court to answer.

I’ll be there, of course. If you’d like to attend, the hearing will be at the Ralph L. Carr Judicial Center at 1300 Broadway, Denver on Wednesday, May 8th. The hearing starts at 10 am, but you might want to arrive a bit early, as it’s the first case of the day. It’s scheduled to last just 30 minutes.

If you’ve not followed the case, check out the following write-up from the Center for Competitive Politics, the legal advocacy non-profit that has made this challenge to Colorado’s speech-stifling campaign finance laws possible.

Colorado’s Opportunity to Protect First Amendment Rights
By Tyler Martinez

May the government ban the publication of books if they contain only one sentence of express advocacy, such as “Vote for Smith”?

At the oral argument for Citizens United v. FEC, the federal government argued that campaign finance laws could ban a corporation, presumably including book publishers, from producing a book with even one sentence of express advocacy. The government’s stance was so shocking that the U.S. Supreme Court ordered another set of briefings and arguments on that issue, and today we have the famous decision upholding the right of corporations to make independent expenditures.

This May, a similar question will be heard by the Colorado Supreme Court in Coalition for Secular Government v. Gessler. This case centers around a small nonprofit, run by Diana Hsieh, a doctor of philosophy, who wanted to discuss a secular understanding of the principles of life, liberty, and property. To do this, Dr. Hsieh formed a nonprofit corporation, which she named the Coalition for Secular Government (CSG). CSG commissioned a paper discussing its philosophy regarding human personhood, written by Dr. Hsieh and her friend Ari Armstrong. On behalf of CSG, Dr. Hsieh and Mr. Armstrong raised money from their friends to help pay for the costs of writing and publishing the paper. They also ran some Facebook ads and made flyers to let people know about the paper.

The paper is 32 pages long, with 176 endnotes. It makes philosophical arguments concerning the complex public policy debate surrounding the definition of personhood. The paper used a proposed Colorado ballot measure as a backdrop for its discussion on the issue. The paper concludes with a single sentence of express advocacy: “If you believe that ‘human life has value,’ the only moral choice is to vote against Amendment 62.”

This one sentence of express advocacy meant that CSG may be forced to register as a issue committee with the state of Colorado. The state’s own briefing in the case has admitted that, but for this single sentence, the paper would go entirely unregulated by the Colorado government. While Colorado does not ban books, it does demand burdensome reporting and disclosure. Registration requires reporting the names and addresses of people who give more than $20 to help a cause–even if it is free help with Web design by a family member. Registration also requires documenting which post office an organization uses, and from which Office Depot it purchases printer paper.

The costs of failing to file these extensive reports, or not filing properly, can be extreme. One day, Dr. Hsieh’s house flooded and she was a day late with CSG’s required report. She then faced a $50 per day fine. Fortunately, this fine was waived, but only after needing to plead with the Secretary of State’s office. Even normal, non-flood-related compliance with Colorado’s byzantine filing system frustrated Dr. Hsieh and left her in constant fear of fines or lawsuits, just because she wanted to weigh in with her philosophical views.

This is not the first time the registering and reporting burdens required of issue committees has come up in Colorado. In the 2010 case of Sampson v. Buescher, a small group of residents outside of Parker, Colorado, came together to fight being annexed into the City of Parker. These individuals had raised less than $1,000 for their cause when their opposition challenged the failure of the neighbors to register as an issue committee.

In assessing the homeowners’ challenge, the Tenth Circuit concluded that Colorado’s issue committee disclosure and reporting requirements “substantial[ly]” burdened the homeowners’ First Amendment rights. The court relied on Citizens United and held that: “[t]he First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day.”

Unfortunately, the state of Colorado failed to heed the Tenth Circuit, and CSG had to call the legal team at the Center for Competitive Politics (CCP) for help. The CCP legal team filed a complaint alleging that, even though CSG plans to raise no more than $3,500 for updating and publishing their public policy paper, the state of Colorado appears to demand that CSG register as an issue committee. Once registered, CSG will again face all of the burdens of reporting their friends and allies, naming where they bought envelopes, and facing lawsuits and fines from the state for making even the slightest mistake.

Interestingly, CSG’s case was initially brought before a federal court. But Colorado law is so ambiguous that the federal judge had to ask the Colorado Supreme Court just what the Colorado law means. As a result, CCP will be before the Colorado Supreme Court this May 8 arguing the merits of registering lengthy policy papers with only one sentence of express advocacy.

As the Citizens United Court noted, it does violence to freedom of speech when a citizen must hire an attorney just to be sure how to speak. Hopefully, the Colorado Supreme Court will agree with that principle.

For more, check out my prior blogging on campaign finance regulations.

 

This press release from the Center for Competitive PoliticsColorado Supreme Court to Rule on Federal Judge’s Questions — is awesome, awesome news for the Coalition for Secular Government’s challenge to Colorado’s campaign finance laws.

In an order received today, the Colorado Supreme Court agreed to a US District Court judge’s request to “provide clear guidance… as to the scope and meaning” of four unclear provisions of Colorado’s campaign finance laws that are the subject of litigation under the First Amendment to the US Constitution.

The request was made by Senior Judge John L. Kane of the United States Court for the District of Colorado in connection with a case brought by the Center for Competitive Politics (CCP) on behalf of the Coalition for Secular Government (CSG). Allen Dickerson, CCP’s Legal Director, said today he is “pleased that Colorado’s highest court will provide a definitive interpretation of key provisions in Colorado’s campaign finance laws and address the important constitutional issues raised in this case.”

The lawsuit challenges whether Colorado can force small educational groups to register with the state before expressing an opinion on or publishing an analysis of a ballot question. Because of vague state laws, confusion as to what constitutes political speech and what is covered under a press exemption, and a refusal by the state to abide by a federal court order, CSG has found it nearly impossible to carry out the activities of a small non-profit group without fear of running afoul of complex Colorado campaign finance laws.

Judge Kane asked the Colorado high court for the interpretation because the “lawsuit raises First Amendment challenges to several provisions of Colorado campaign finance law that remain undefined by the Colorado Constitution, Article XXVIII’s implementing legislation, or case law from Colorado courts.”

Judge Kane certified four questions, which the Colorado Supreme Court has now agreed to answer. The questions are as follows: 1. Is the policy paper published by the Coalition for Secular Government (CSG) in 2010 “express advocacy” under Art. XXVIII, S 2(8)(a) of the Colorado Constitution?

2. If the policy paper is express advocacy, does it qualify for the press exemption found at Art. XXVIII, S 2(8)(b)?

3. Is the policy paper a “written or broadcast communication” under S 1-45- 103(12)(b)(II)(B), C.R.S.? If not, did it become a “written or broadcast communication” when it was posted to CSG’s blog or Facebook page?

4. In light of Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010), what is the monetary trigger for Issue Committee status under Art. XXVIII S 2(10)(a)(II) of the Colorado Constitution?

A copy of the court order is available here. The case, over which Judge Kane presides, is Coalition for Secular Government v. Gessler, No. 12-cv-1708. The plaintiff’s brief to the Colorado Supreme Court is due December 3, 2012.

Once again, I cannot properly express my gratitude to Allen Dickerson and the rest of the staff at the Center for Competitive Politics for this legal challenge to Colorado’s campaign finance laws.

I’m not just grateful for the hope that I’ll never have to file campaign finance reports again — nor even for the hope of striking a solid blow for free speech in Colorado. I’m grateful because my participation in this case has enabled me to see that the rule of law, while not perfect, is a robust institution in America. As a result, I’ve become far more optimistic about the future over the past few months. I don’t share the post-election “Doom and Death Camps” so prevalent among advocates of free markets, for reasons that I explained in Sunday’s Radio Show. I’m glad of that, and I’m proud of that.

So if you’d like to assist in the efforts of the Center for Competitive Politics, you can donate here.

Politics Corrupts Money

 Posted by on 12 October 2012 at 10:00 am  Campaign Finance, Election, Free Speech
Oct 122012
 

Dirty MoneyIn this blog post for The Objective Standard, Ari Armstrong explains that money doesn’t corrupt politics, as advocates of campaign finance laws claim. Instead, politics corrupts money: “Although the source of money is virtuous because it is production, money is corrupted when it is used to buy political favors.” Indeed, and such political favors can only be bought in a mixed economy in which some people’s rights may be violated for the right price.

So if you think that campaign finance laws can keep politics pure, think again… and go read the whole post!

Be sure to consider what he says about Colorado’s Amendment 65:

Amendment 65 is a futile attempt by the left to solve the problems created by leftist policies. As I argued in my debate with Gordon, the censorship of political speech that Amendment 65 advocates will not solve the problem of influence peddling; it will only make that problem worse. As I pointed out, under Amendment 65, the proposed censorship laws would themselves be crafted by the influence peddlers.

Demanding that the foxes guard the henhouse is not wise politics: it’s a power-grab by the foxes and their allies in the henhouse.

 

On October 2nd, the Center for Competitive Politics posted a press release about the questions that Judge Kane is sending to the Colorado Supreme Court for CSG’s campaign finance lawsuit. It’s very interesting news, because until very recently, I didn’t even know that this could be part of the legal process. (Look, it’s federalism in action! Nifty!)

CONTACT: Sarah Lee, Communications Director, 770.598.7961

ALEXANDRIA, Va. – A federal judge today issued an order seeking clarification by the Colorado Supreme Court of the state’s campaign finance laws. Senior Judge John L. Kane of the United States Court for the District of Colorado asked the state Supreme Court to “provide clear guidance… as to the scope and meaning” of provisions that have been challenged under the First Amendment to the US Constitution

Judge Kane’s order was made in connection with a case brought by the Center for Competitive Politics (CCP) on behalf of the Coalition for Secular Government (CSG). The case, over which Judge Kane presides, is Coalition for Secular Government v. Gessler, No. 12-cv-1708.

The judge’s order noted that the “lawsuit raises First Amendment challenges to several provisions of Colorado campaign finance law that remain undefined by the Colorado Constitution, Article XXVIII’s implementing legislation, or caselaw from Colorado courts.”

CSG alleges that, even though it plans to raise no more than $3,500–nearly all of which will go toward updating and disseminating a public policy paper–the state constitution appears to demand that CSG register as an issue committee if its papers take a position on ballot measures. Such registration would force CSG to maintain several new types of records, file periodic reports, turn over the names and addresses of contributors who donate as little as $20 toward financing the policy paper, and risk substantial fines should it err in its public filings.

Judge Kane certified four questions. These include:

  • Does the Colorado Constitution treat money spent on a policy paper, including one that suggests how the reader should vote on a ballot initiative, as the equivalent of money spent on political ads?
  • Does the state constitution entitle policy papers distributed over the internet to be treated in the same way as newspaper and magazine editorials for purposes of campaign finance law?
  • In light of a federal decision declaring certain groups too small to be regulated by the state of Colorado, what is the monetary trigger for an issue committee under the state constitution? Is it the roughly-$1,000 mentioned in the federal opinion? The $3,500 contemplated by CSG? The $200 mentioned in the constitution itself? Or another number altogether?
While the Colorado Supreme Court is not required to answer Judge Kane’s questions, doing so would provide some welcome guidance on these important questions.

“For years, organizations in Colorado have been unsure how to comply with Colorado’s campaign finance rules, or have been subject to politically-motivated complaints for making minor errors,” CCP Legal Director Allen Dickerson said. “Some choose not to speak at all in the face of this situation. The Colorado Supreme Court now has the option of bringing a measure of predictability to some of the state constitution’s more difficult provisions.”

Judge Kane’s order, which includes a brief description of the case, may be found here.

Here are the four questions certified in their technical language:

1. Is the policy paper published by the Coalition for Secular Government (CSG) in 2010 “express advocacy” under Art. XXVIII, S 2(8)(a) of the Colorado Constitution?

2. If the policy paper is express advocacy, does it qualify for the press exemption found at Art. XXVIII, S 2(8)(b)?

3. Is the policy paper a “written or broadcast communication” under S 1-45-103(12)(b)(II)(B), C.R.S.? If not, did it become a “written or broadcast communication” when it was posted to CSG’s blog or Facebook page?

4. In light of Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010), what is the monetary trigger for Issue Committee status under Art. XXVIII S2(10)(a)(II) of the Colorado Constitution?

I’ll be very interested to see how the Colorado Supreme Court rules on these questions — and then what Judge Kane says about that. I’m excited by the prospect of at least clarifying Colorado campaign finance law, let alone striking down some of its most burdensome elements.

Also, I’ll have some news about the forthcoming updates to Ari Armstrong’s and my 2010 paper — The “Personhood” Movement Is Anti-Life — soon. Although “personhood” won’t be on the ballot in Colorado due insufficient signatures, the movement has grown dramatically in influence over the past year, as seen in the GOP primary. Hence, Ari and I are determined to update the policy paper to reflect that.

Alas, my being so sick last week blew apart our plans. We’ve made a new plan, and it’s a better plan, I think. You can expect some announcements about that later this week. Just know that, once again, we will need your support to make it happen!

 

Ari Armstrong published an excellent op-ed in Sunday’s Denver Post against the campaign finance measure on Colorado’s ballot, Amendment 65. The whole op-ed is worth reading, but I particularly enjoyed his argument that restrictions on campaign spending are restrictions on speech. He writes:

Voters must observe that limiting campaign spending means limiting spending on speech.

You have no right of free speech if you cannot spend your resources how you want on speech. With the possible exception of shouting over panhandlers on a street corner, every form of speech requires the expenditure of resources.

To write for an audience, you need computers, Internet connections, copy machines, books, or newspapers. To speak, you need microphones, podcasts, film equipment, radio signals, or television transmissions. Spending money on speech is part of speaking. Controlling spending on speech is controlling speech itself.

Yes! That’s exactly why free speech depends on property rights — and the “dictators of the proletariat” understood that. The Soviet Union didn’t ban the free press directly in its early years: it simply nationalized all printing presses.

Ari then observes:

The very idea that government should attempt, through force, to “level the playing field” in the realm of communication and ideas is pernicious. It is the government’s proper job to protect each individual’s right to speak freely, whether alone or as part of a group, not to forcibly silence some voices so that others face less competition.

Certainly, I’ve felt that heavy burden in speaking against Colorado’s “personhood” amendments in 2008 and 2010, as I described in detail in my December 2011 testimony. No advocate of campaign finance regulations has ever directly addressed the huge contradiction between their stated goals with campaign finance regulations and my experience as an ordinary citizen attempting to speak out. It’s infuriating.

In addition to this excellent op-ed, Ari gave this short speech on Amendment 65 at a local forum on the election:

Ari deserves the thanks of every Colorado resident for his work advocating our rights to speak freely!

 

As I mentioned, the Coalition for Secular Government’s trial, scheduled for Friday, was postponed. Here’s Judge Kane’s order, as reported here:

Plaintiff’s requests for preliminary and permanent injunctive relief were consolidated and are set for a full-day trial/hearing tomorrow, Friday, September 21, 2012. Given the unlikelihood proponents of a ‘personhood’ amendment will salvaged for the Colorado state ballot in time for the 2012 election cycle, the impetus for the very expedited timeframe under which this case has been operating has relaxed enough to warrant the more thorough approach afforded by certifying certain important and threshold questions to the Colorado Supreme Court. Accordingly, tomorrow’s hearing is VACATED, to be reset at a later date.

That’s good news, on two counts.

First, the proposed “personhood” amendment will surely not make the ballot in 2012. If adequate numbers of signatures were indeed collected, the remedy will be that the measure appears automatically on the 2014 ballot. Hence, Ari Armstrong and I can raise and spend money for an updated version of our 2010 paper on the “personhood” movement without me filing those burdensome and intrusive campaign finance reports. Given the prominence of “personhood” in the GOP primary and Paul Ryan’s support “personhood,” I’m eager to update that policy paper. I’ll be announcing more about that soon.

Second, by not being on such a rushed schedule — and by having the Colorado Supreme Court answer some critical questions in advance — the case is likely to grapple in a more serious way with the serious constitutional questions raised by the suit. Obviously, that’s good news.

For a taste of the other work of the Center for Competitive Politics, see this Washington Examiner column by Allen Dickerson and Bradley Smith: Court ruling a boon to privacy, accuracy. If you’d like to donate to their efforts, you can do so here.

 

The Coalition for Secular Government’s case challenging Colorado’s campaign finance laws will be heard in Federal Court tomorrow. The courtroom is open to the public. So if you’d like to attend, you’re welcome to do so.

The case will start at 9:30 am, and it will likely last the day. It will be held in the Alfred A. Arraj United States Courthouse (901 19th St. in Denver). It’s being heard by Judge Kane in Room A802.

I’m really excited by the potential of this case. I’m a bit nervous too, as I’ve never testified in court before. Happily, my job is simple: I just need to tell the truth about CSG, and leave the heavy lifting of the legal arguments to my fabulous attorney from the Center for Competitive Politics.

Update: Never mind! The trial has been postponed for complicated (but good) reasons that I’ll explain later.

 

According to Colorado’s Secretary of State, the proposed “personhood” amendment won’t make the 2012 ballot due to lack of signatures — and that decision is final. The Denver Post reports:

The Colorado secretary of state’s office said Tuesday the proposed anti-abortion “personhood” amendment will not be on the 2012 ballot — no matter the outcome of proponents’ planned legal action to prove they collected enough voter signatures.

The ballot certification deadline was Monday. Even if a judge rules personhood sponsors’ petition was sufficient, the measure would have to wait for the 2014 general election, secretary of state spokesman Andrew Cole told The Post Tuesday.

However, that’s not the end of the story. Personhood USA takes a different view:

Personhood USA founder Keith Mason said Tuesday supporters have a 30-day window to take legal action challenging Secretary of State Scott Gessler’s Aug. 29 determination that the Personhood Amendment failed to make the ballot — falling short by 3,859 signatures.

Petitioners collected 82,246 valid signatures of the 86,105 required, according to state officials. “We have until Sept. 28 to file our lawsuit. And the more we look, line by line, the more confident we are we have enough signatures,” Mason said. “We have recovered thousands of signatures.”

Personhood USA seems serious in their desire to make a legal challenge, as seen in this September 14th email to supporters:

We need your help! Last month we told you that volunteers worked tirelessly to collect over 112,000 signatures to get the Personhood Amendment on the ballot in Colorado. But the Secretary of State in Colorado has denied our request by claiming that we are 3,700 signatures short of qualifying for the ballot. This a purely political act, as many of the signatures discarded were actually valid signatures!

We must file a court challenge within 30 days, and we fully intend to do so. But we need your financial help! In order to continue our fight for the unborn and protect all innocent life we need to raise over $50,000 to combat the political machine in Colorado. …

They might win that legal challenge — or they might lose it. Basically, right now nobody knows whether “personhood” will be on the ballot in 2012 or not.

That’s hugely frustrating for me. All plans to update Ari Armstrong’s and my 2010 policy paper The “Personhood” Movement Is Anti-Life are up in the air until this matter is resolved. Right now, I’m not sure what kind of revisions we’ll want to make, because we may want to talk about the new language of the 2012 ballot measure or not.

Also, I don’t know whether I’ll want to raise money for those revisions or not, as I did in 2010. I’m not willing to slog through the burdens and risks of reporting again, as would be required if “personhood” makes the ballot, unless, that is, the court rules in our favor next week. In that case, I won’t have to report, even if “personhood” is on the ballot. That would be awesome.

Gah! The uncertainty is just killing me. These matters will be resolved soon, I know, but time is running short!

Appeals Court Rules Against Gessler

 Posted by on 3 September 2012 at 2:00 pm  Campaign Finance, Free Speech
Sep 032012
 

Court rules against Gessler in campaign change:

An appeals court says Secretary of State Scott Gessler overstepped his authority by raising a financial disclosure threshold for political groups and that the change violated state law. The Colorado Court of Appeals issued the ruling Thursday, affirming a lower court’s decision. At issue was a change from Gessler’s office to raise the financial disclosure threshold for political groups from $200 to $5,000.

Opponents argue that raising the threshold would make it easier for political groups to avoid disclosing financial interests for ballot initiatives. Gessler maintained that his aim was to bring state campaign-finance laws in line with a federal appeals court ruling.

A Gessler spokesman says the state is leaving itself open to expensive constitutional challenges, but that the secretary has not decided whether to appeal the latest decision.

The opinion is available as a PDF. The main issue seems to have been whether Scott Gessler had the authority as Secretary of State to change the threshold for campaign finance disclosures for issue committees, not the rule itself.

However, the court did seem to read the “Parker North” (Sampson v. Buescher) case as some kind of isolated decision, without implications for the constitutionality of the current $200 threshold. The court wrote, in part:

We do not agree with the Secretary, in any event, that Sampson created a gap in the law, triggering his obligation to promulgate a rule. The Tenth Circuit panel declined to address the facial challenge to Colorado’s campaign finance laws, and only held that the application of these laws to the plaintiffs in that case unconstitutionally burdened their freedom of association. See Sampson, 625 F.3d at 1249. Consequently, Sampson provides persuasive authority with regard to future applications of the campaign finance laws in a similar context, but does not render these laws completely inoperative. See Sanger, 148 P.3d at 410­11.

That’s wrong, I think, and I hope that gets relitigated. In addition, I very much hope that the Colorado legislature will change the law on the threshold for reporting for issue committees — to some level much higher than Gessler’s $5000 limit.

Suffusion theme by Sayontan Sinha