On August 14, Citizens United filed suit in federal court against Colorado Secretary of State Scott Gessler. The lawsuit is a response to Deputy Secretary of State Suzanne Staiert’s June decision classifying the group’s upcoming documentary as a reportable electioneering communication.

Citizens United had hoped the documentary would be excluded from the definition of reportable electioneering communication under a general press-entity exemption. Although the Federal Election Commission applies such an exemption for Citizens United at the federal level, the secretary of state lacked the authority to import the FEC’s analysis and decision.

Citizens United is now asking the court to permanently enjoin enforcement of applicable reporting and disclosure requirements in their entirety or, in the alternative, enjoin enforcement of the requirements as applied to Citizens United. The group argues its right to engage in political speech is significantly burdened while the rights of print media and broadcast facilities are not. Moreover, the group claims the reporting and disclosure requirements discriminate based on a speaker’s identity and, therefore, violate both the U.S. and Colorado constitutions.

Bob Beauprez came out on top in the Colorado GOP gubernatorial primary on Tuesday. The former congressman accepted his party’s nomination after besting fellow candidates Tom Tancredo, Scott Gessler, and Mike Kopp in a four-way race.

GOP strategists worried a Tancredo tea-party victory would hurt the Republican ticket in November and seem satisfied with the establishment win. All four GOP primary candidates intend to work as a team to support the new Republican nominee as he battles to unseat Democratic Gov. John Hickenlooper.

On Thursday, June 5, Colorado Deputy Secretary of State Suzanne Staiert issued an agency decision in response to Citizens United’s petition for declaratory order. Citizens United requested its upcoming documentary be excluded from the definition of reportable electioneering communication by classifying it as one of the constitutional exemptions. The secretary of state found the communication does not fall within any exemptions and there is no general press-entity exemption to the definition of electioneering communication.

As Citizens United engages in communication for the primary purpose of influencing elections, it is exactly the type of entity to which reporting requirements apply. To rule otherwise would defeat the purpose of state campaign finance law and disregard the rationale behind full disclosure.

Moreover, the secretary of state found it does not have the authority to create a general press exemption to campaign finance reporting requirements. Although the Federal Election Commission applies such an exemption for Petitioner at the federal level, the secretary of state lacks the authority to import the FEC’s analysis and decision. Therefore, Petitioner’s remedy at the state level lies with courts in the form of litigation, with the legislature in the form of referendum, or with the people in the form of initiative.

Colorado state legislators recently passed a bill aimed at increasing lobbying transparency. Senate Bill 14-217 passed the House by unanimous vote on May 7, demonstrating bipartisan support for changes in lobbyist disclosure requirements.

The bill requires lobbyist subcontractors receiving business from a professional lobbyist to report subcontracting business on their annual disclosure statements though such information is contemporaneously reported on the professional lobbyists’ disclosure statements.

Another legislative provision requires lobbyists to update their registration statements within 24 hours of lobbying for a new client or subcontracting for another lobbyist. Per its design, SB 217 effectively closes a lobbying loophole by allowing the public to connect the lobbyists who subcontract for lobbying firms to the clients hiring such firms.

If signed by Gov. Hickenlooper, the bill will become effective July 1, 2015.

The Colorado Ethics Commission, which has long been accused of partisanship, is likely to face more criticism in light of a recent ruling. On Monday, April 14, the commission voted to dismiss a complaint against Democratic Governor John Hickenlooper.

Hickenlooper was accused of violating state gift law by allowing the Democratic Governors Association to pick up the tab for food and lodging expenses associated with a 2013 conference. In its reasoning, the commission claimed Hickenlooper’s policy expertise shared at the conference, and the hours he spent organizing it, exceeded what was spent on food and lodging.

William Leone, one of the commissioners who heard the complaint, argued an elected head of state “has a legitimate interest to present, discuss, debate, and hear about [the] policy initiatives . . . he chooses to advance.”

After ruling for Hickenlooper, the commission declined to revisit a decision handed down last year against Republican Secretary of State Scott Gessler for a substantially similar set of facts. Gessler believes the people of Colorado have no faith in a partisan ethics commission; he was saddened, but not surprised, by Monday’s decision.

The city of Lakewood, Colorado revised its campaign finance ordinance; the new provisions are effective April 1.

The most notable change is a shift away from state law. Colorado allows any municipality with an adopted ordinance covering any issue addressed in the Fair Campaign Practices Act to assume jurisdiction over all campaign finance matters occurring within the municipality.

Lakewood will no longer fall within the jurisdiction of the secretary of state, as the ordinance adds provisions concerning contribution limits, registration and reporting requirements, and civil penalties for violations of municipal campaign finance law.

Photo of the Lakewood Civic Center courtesy of Jeffrey Beall on Wikimedia Commons.

Jane Feldman is stepping down as Executive Director of the Colorado Independent Ethics Commission. She is the first and only director to serve, as the commission is a product of a 2006 ethics ballot measure.

Luis Toro, director of Colorado Ethics Watch, praised Feldman, calling her “the very model of a dedicated civil servant.”

While Feldman looks forward to retirement from state government, her critics claim she may simply be a scapegoat. Complaints brought the commission under public scrutiny, and a House committee will soon hear a bill concerning the commission’s procedural mechanisms. Meanwhile, the commission is investigating Gov. John Hickenlooper for alleged gift violations.

There is no word yet of a new Executive Director.

Deputy Secretary of State Suzanne Staiert issued an advisory opinion on February 6 addressing the formation of independent expenditure committees by political parties. Although an advisory opinion is not binding, its purpose is to provide clarification regarding the agency’s interpretation of current campaign finance law.

Political parties may operate an independent expenditure committee and may raise funds in any amount from any permissible source. If a political party chooses to form an independent expenditure committee, it must avoid the appearance of corruption through the implementation of sufficient safeguards. Any expenditures coordinated with or controlled by a candidate are considered a contribution to the candidate committee and are, therefore, subject to contribution limits.

On Thursday, the Colorado Court of Appeals affirmed a lower court ruling striking down rules reducing or eliminating disclosure requirements for issue committees, political committees, and more than 500 political organizations. The rules, put forth by Secretary of State Scott Gessler in 2012, also capped penalties for failure to file major contributor reports in the days leading up to an election.

Challengers argued the rules were invalid because Gessler exceeded his authority by effectively amending the Colorado constitution and campaign finance laws passed by the General Assembly.

In addition to finding the rule changes invalid, the appeals court overturned Gessler’s 2012 rule narrowing the definition of “electioneering communications.”

The Lakewood, Colorado City Council voted to approve new campaign finance rules October 14. The new ordinance caps campaign donations at $2,500 per person for council candidates and $5,000 for mayoral candidates. Additionally, cash and in-kind donations will be treated the same; together they cannot exceed the limits.

Other amendments to the ordinance require LLCs making political donations of more than $100 to disclose their members.

The ordinance also addresses complaints against candidates. The deadline to file a complaint has been changed from 180 days after the alleged violation to 120 days after the violation.

Finally, the ordinance outlines the threshold or point at which a person interested in running for an elected position becomes a candidate. Declaring candidacy, receiving a donation, or making a campaign-related expenditure all trigger the change in status.

City Attorney Tim Cox confirmed the changes will have no effect on the current election and will not be implemented until April 2014.

Photo of the Lakewood Civic Center by Jeffrey Beall on Wikimedia Commons.

The Colorado Secretary of State’s Office is holding a rulemaking hearing regarding the rules governing lobbyist regulation. The hearing will be held on October 4, 2013, from 9:00 a.m. to 12:00 p.m., in the Blue Spruce Conference Room on the second floor of the Secretary of State’s Office. The public is invited to submit comments before and during the hearing, and the hearing is open to the public for discussion regarding the proposed changes.

The proposed changes include consolidation of several rules, and clarifications such as factors determining whether a violation is substantial, and who qualifies as a rulemaking official.

The complete list of changes and details of the hearing are available here.

Voters overwhelmingly approved Amendment 65, a ballot measure that instructs the Colorado congressional delegation to propose, and the state legislature to ratify, an amendment to the U.S. Constitution to overturn Citizens United.

While the results are heralded by watchdog groups like Colorado Common Cause as a clear sign that Colorado voters want action on the issue of corporate political spending, the measure has no legal significance as it cannot force the state’s congressional delegation or legislature to take any action.

A federal judge has issued an order to the state supreme court seeking clarification of the state’s campaign finance laws. The order arises from a suit filed against the secretary of state by the Coalition for Secular Government (CSG), alleging that certain provisions of the Fair Campaign Practices Act are invalid under the First Amendment. CSG plans to raise funds that will go toward updating and disseminating a policy paper that may address ballot issues, activities that may require it to register as an issue committee and disclose its donors under Colorado law.

The judge requested the Colorado Supreme Court to clarify:

• Whether the position paper expressly advocates for a ballot issue or question such that it falls within the definition of expenditure in the Colorado Constitution;

• If it does qualify as a ballot issue expenditure, is it eligible for the exemptions allowed for news items, editorials, and other similar writings;

• Whether the policy paper is a “written or broadcast communication” that would categorize CSG as an issue committee, and if not, did it become one when CSG posted the paper to its blog or Facebook page; and

• What the monetary threshold is that would require an issue committee to register.

The secretary of state has issued amended rules regarding lobbyist registration.

The substantive changes include:

• Elimination of the requirement that the secretary of state provide notice and an opportunity to respond to lobbyists under investigation for violations of Colorado’s sunshine law;
• Providing that the secretary of state may admonish a lobbyist for failure to pay penalties within 45 days of assessment, as opposed to the previous rule of 90 days;
• Providing that the secretary of state will send a penalty to collections if a lobbyist or lobbyist firm fails to pay the penalty within 90 days;
• Amending the requirement that pertains to reporting of gifts to clarify that lobbyists are prohibited from giving gifts of any kind to covered officials; and
• Establishing definitions of rate and standard as those terms pertain to state agencies with rulemaking authority.

These rules will take effect 20 days after publication in the Colorado Register.