Testify for Free Speech on December 15th

On Thursday, December 15th, Colorado's excellent Secretary of State Scott Gessler will hold a hearing on a slew of proposed changes to the campaign finance rules (PDF). Contrary to popular misconception, these campaign finance rules don't just apply to politicians running for office: they affect ordinary people advocating or opposing candidates, political parties, and even ballot measures. Hence, they've put a serious damper on my activism for abortion rights, as I testified at a hearing in May.

With this hearing, Gessler is making a serious attempt to make the campaign finance rules more clear, more objective, and less onerous. Of course, his powers of reform are limited by the campaign finance provisions in the Colorado constitution and by Colorado statute. Even within those limits, however, his proposed reforms are darn good. Of course, the well-funded progressive groups in Colorado vigorously oppose free speech in elections. These groups are also gunning for Gessler, not just on this issue, but also because he's trying to prevent voter fraud. Hence, it's hugely important for people concerned about free speech in Colorado's elections to support these reforms -- and to support them loudly, clearly, and publicly.

The hearing is on the morning of December 15th in Denver, from 9 am to 12 noon. If you're able to attend and speak in person, please do so! It's in the "Blue Spruce Room" of the Secretary of State's office, which is on the second floor of 1700 Broadway.

Please submit written testimony too, whether you're able to attend in person or not. That written testimony doesn't need to be lengthy or polished. You need only say that you support these rule changes because they would substantially lessen the burdens and risks imposed on people who speak out about Colorado elections. I would also recommend saying that you support fully free speech -- without any disclosures, limits, or other controls -- in elections. If you want to say more, see my analysis of the major proposed rule changes below.

Obviously, the Secretary of State's office will give more weight to Colorado residents than to residents of other states. However, if you donated to support Ari's and my 2010 policy paper on the "personhood" movement, or if you might donate for the 2012 campaign, that gives you some standing to speak against these campaign finance laws. After all, these laws don't just violate my rights, they violate the rights of my supporters. Those people contributed to my work precisely so that I could speak for them, and they were entitled to privacy in so doing.

You must submit your written testimony by the December 15th hearing via e-mail to Andrea Gyger at andrea.gyger@sos.state.co.us. (Reference "8 CCR 1505-6," and please indicate if you want your e-mail address and any other personal information submitted included in or omitted from the published version of your testimony.)

For those of you who want to say more about why you support these rule changes, let me briefly summarize four that I regard as particularly important, as best I understand them. You can also see Ari's and my talks to Liberty on the Rocks on this issue.

(1) The Definition of Issue Committees

By the current rules, any group of two or more persons qualifies as an "issue committee" if the group (1) works for or against a ballot measure as a "major purpose" and (2) spends or receives more than $200. On reaching that threshold, a group must register with the state, create a new bank account, and file reports every two weeks disclosing expenditudes and contributions over $20. Those reports must include the names and addresses for any contribution over $20, plus the occupation and employer for any contribution over $100.

That's what I've had to do to spend any money against the 2008 and 2010 "personhood" amendments, and it's a serious burden. Occasional political activists such as myself cannot hire lawyers and accountants to prepare and submit this paperwork, and doing it myself was a major source of stress, frustration, and worry. Of particular concern is that opponents will sue over minor mistakes, and the fines add up quickly. Hence, to exercise your free speech rights in an election in Colorado requires submitting small mountain of confusing paperwork, plus risking expensive lawsuits and fines. Well, that's not free speech.

The proposed rule changes would clarify and limit the groups that qualify as "issue committess" in two sensible ways.

First, the "major purpose" criterion would mean something specific, namely that more than 30% of the organization's spending concerns a ballot measure. Under the current rules, the "major purpose" criterion can be interpreted any which way, and so groups with only a minor interest in some ballot measure have to file reports to be safe rather than sorry. Under the new rules, groups can more easily know whether they qualify as issue groups or not, then act accordingly.

However, the criterion isn't perfect, as the application of the criterion isn't always crystal clear. For example, for the 2012 election, the Coalition for Secular Government won't just be concerned with Colorado's likely "personhood" amendment, but also with the national-level "personhood" movement, plus the "personhood" efforts in other states. Still, since we're based in Colorado, we will be more focused on and active in Colorado. So will the Colorado "personhood" ballot measure constitute a "major purpose" for CSG by this new standard? I just don't know the answer to that question, and I don't see how I could know.

Nonetheless, the proposed "major purpose" test would be a significant improvement, precisely because it establishes an objective test that most groups can easily apply.

Second, the threshold for reporting for issue groups is set at $5000, in keeping with the prior rule-change. Although still problematic, that threshold liberates many small groups from the onerous reporting requirements imposed on them under the $200 threshold. Unfortunately, that proposed change is pending litigation in the courts -- with the latest ruling being against the increased threshold. So in 2012, groups will have to err on the side of caution -- and hence, register and file reports once they raise or spend more than $200. Here, we can only urge the Gessler to keep fighting for the $5000 threshold in the courts.

(2) The Definition of Electioneering Communication

By the current rules, "electioneering communication" means any communication via radio, television, newspaper, billboard, or flyer that refers to a candidate within 30 days of a primary or 60 days of a general election. Any person who spends over $1000 on electioneering communication in a year must register with the state, create a new bank account, and file reports on all expentitures every two weeks. These reports must include the name, address, occupation, and employer of anyone contributing more than $250 per year.

At present, the standards for when advocacy constitutes "electioneering communication" are vague, and the stricter "magic words test" (seriously, that's what it's called) is currently being litigated in the courts.

The proposed rule changes would narrow the definition of "electioneering communication" to require "express advocacy" for a candidate. That bright line would enable political activists to know with certainty whether they must file reports or not when spending money in elections. That substantially reduces the risk of either wasting time by filing unnecessary reports or incurring files for failing to file necessary reports. In addition, the rule change would permit more people to speak freely about election politics.

(3) Penalties and Waivers

Under the current rules, failures to comply with the campaign finance rules can incur fines of up to $50 per day per violation, without limit. Fines have often grown far beyond a group's ability to pay. Waivers and reductions of these fines are granted by the Secretary of State's office, but the process and standards are unclear to regular people. That makes the whole process ripe for abuse, whether by a partisan Secretary of State or a lone member of his staff.

The proposed rule changes would establish clear standards for penalties and waivers. For example, waivers would be granted with good cause, penalties would start small but will be increased with each successive offense, and penalties would be limited based on the resources of the organization. Importantly, total penalties would be limited to $50 per day per report for 180 days, i.e. $9000 per report. That's still far too large, but it's a major improvement from the current possibility of infinitely large fines.

(4) Privacy for Contributors

By the current rules, reports must include personal information about contributors, such as names, addresses, and employers. That information is then published on the web for anyone to see. Given the harassment and even violence perpetrated by some anti-abortion activists, the publication of these records was of grave concern to me when soliciting contributions for our work against the "personhood" amendment in 2010.

The proposed rule changes would permit people who fear for their own or their family's safety due to information disclosed on any campaign finance report to request that such information be redacted. The information must be submitted, but it will be kept private. On controversial topics, that protection of privacy might enable some people to speak out who would otherwise be frightened into silence. In America, the government should not require people to risk life and limb to support the people they choose to speak for them.

Summary

These four changes to Colorado's campaign finance rules aren't the sole changes under consideration at this hearing. The proposed changes consume 45 pages of dense legalese. However, they're significant and representative: these changes would make the rules more clear, more objective, and less burdensome. Ultimately, campaign finance laws ought to be repealed wholly and completely. By mandating disclosure and setting limits on contributions, the government accomplishes nothing except interfering with our free speech rights.

In the meantime, if you live in Colorado, please testify in support of these rule changes, whether in person or just in writing. Remember, even if you live outside Colorado, you have standing to testify if you contributed to Ari's and my 2010 policy paper on the "personhood movement -- or you might do so for the 2012 election.

By speaking out in favor of these rule changes, you're not just helping the abstract cause of free speech. You're helping to ease a major burden imposed on me and other advocates of individual rights in Colorado. You're enabling us to advocate more clearly, more effectively, and more enthusiastically on ballot measures.

So once again, you can submit your wrtten testimony via e-mail to Andrea Gyger at andrea.gyger@sos.state.co.us. (Reference "8 CCR 1505-6," and please indicate if you want your e-mail address and any other personal information submitted included in or omitted from the published version of your testimony.)

Just don't forget that December 15th deadline!

Update: After writing this post, I realized that one of the proposed rule changes is really, really horrible. Go read about it here, and be sure to mention your opposition to it in your testimony.