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04 September 2012

Appeals Court Rules Against Gessler

By Diana Hsieh

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.

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