July 18, 2018

July 18, 2018

Subscribe to Latest Legal News and Analysis

July 17, 2018

Subscribe to Latest Legal News and Analysis

July 16, 2018

Subscribe to Latest Legal News and Analysis

Colorado Campaign Finance Enforcement System Found Unconstitutional

In a case with interesting ramifications, a federal court this week struck down major parts of Colorado’s campaign finance enforcement system as unconstitutional.

The system at issue, which was created through a ballot initiative, generally allowed any person who believed there had been a violation of the state’s campaign finance laws to file a written complaint with the Secretary of State.  The Secretary of State was required to refer the complaint to an administrative law judge within three days, and the judge had to hold a hearing within fifteen days.  There was no mechanism for filtering out bad cases — each and every complaint got a hearing.  In his opinion in Holland v. Williams, Judge Raymond Moore of the U.S. District Court for the District of Colorado held this system was facially unconstitutional as a violation of First Amendment political speech rights.

There are three main takeaways from the decision.  First, although the state’s campaign finance regulatory scheme remains in effect, it is temporarily without an enforcement mechanism.  A new enforcement system should be coming soon. In a release, the Secretary of State’s office stated it is working to adopt temporary enforcement rules quickly, and will seek a more permanent solution in the 2019 legislative session.

Second, any other states and localities that allow citizens to file campaign finance complaints, especially without a screening system, may face similar challenges to their rules.  While the court in this case seemed to indicate that a citizen-driven system could be permissible so long as there was a system for screening complaints, there is no guarantee that other judges will follow every contour of this decision.

Finally, the decision is another example in what is becoming a pattern of courts striking down citizen-initiated campaign finance and government ethics reforms.  In the last few years, voters in Colorado, South Dakota, and Missouri, have all passed reforms that they felt would be stricter than what state legislators were self-imposing, only for a judge to strike some aspect of the reform as unconstitutional.

© 2018 Covington & Burling LLP

TRENDING LEGAL ANALYSIS


About this Author

Andrew Garrahan, Public policy attorney, Covington Burling
Associate

Andrew Garrahan represents and counsels clients at the intersection of law and politics. He guides them through both regulatory compliance issues and government investigations on matters including state and federal campaign finance, ethics, lobbying, and corruption.

Mr. Garrahan’s prior career in political fundraising gives him a unique perspective on the challenges faced by his clients, which include corporations, candidates, government officials, political and nonprofit organizations, and private individuals.

202-662-5841