Fighting Colorado’s campaign-finance vigilantes

If you’re thinking about voicing your opinion on a political issue in Colorado, beware: Unlike most states, Colorado has outsourced the enforcement of its complex system of campaignfinance laws to every disgruntled politico with an ax to grind. As a result, merely voicing your opinion can get you hauled into court and cost you thousands in legal fees.

Tammy Holland of Strasburg learned this the hard way. Holland is the mother of a sixthgrade son. She’s also a passionate opponent of Common Core curriculum and the growing prevalence of standardized testing, which she believes impoverish education and subject students to unnecessary anxiety.

To raise awareness of these issues, Holland placed a series of ads in her local newspaper, The I-70 Scout. But when she took out an ad shortly before the November school-board election, in which she urged voters to familiarize themselves with the entire slate of candidates running for school board, including those competing with the two incumbent candidates, she found herself sued by school-board officials — twice.

How could this happen? In Colorado, unlike in virtually every other state in the country, any citizen may file a private lawsuit to enforce the state’s campaignfinance laws. The secretary of state is required to forward all such complaints to the Office of Administrative Courts, triggering full-blown litigation. There is no process for screening out frivolous complaints, and if you want an attorney to defend you, you’ll have to pay for it out of your own pocket. Not surprisingly, complaints are routinely filed, not out of legitimate concern for enforcement of the campaign-finance laws, but to intimidate and silence political opponents.

That’s exactly what happened in Holland’s case. After her ad ran in The I-70 Scout, Byers School District Superintendent Tom Turrell filed a complaint alleging that she had violated Colorado’s campaign-finance laws by failing to register as a “political committee.” But this requirement doesn’t apply to ads like Holland’s, which did not call for the defeat or election of any candidate. Turrell’s complaint also claims that Holland somehow violated federal campaignfinance law, even though the federal requirements he cites are totally inapplicable to speech about local elections.

After Holland had already hired a lawyer, Turrell dismissed his complaint. But when she refused to drop her request to recover attorneys’ fees for defending against Turrell’s baseless complaint, she found herself hit with a second, identical complaint filed by Byers School Board member Tom Thompson III.

Sadly, incidents like this are not rare. Colorado’s private-enforcement system has invited so much abuse that Secretary of State Wayne Williams recently complained that the “current scheme allows frivolous and litigious complainants to potentially violate the free speech and due process rights of those seeking to lawfully participate in political discourse.”

Something must be done to protect Coloradans from this abuse. But because Colorado’s private-complaint system is enshrined in the state Constitution, it cannot be repealed by ordinary legislation. The only way to improve the system, short of amending the Constitution, is to have a court strike down Colorado’s private-enforcement system, clearing the way for the legislature to create a system with the sort of safeguards that are common in virtually every other state. That’s why on Thursday, the Institute for Justice is filing a federal lawsuit on behalf of Holland, asking the court to hold that Colorado’s private-enforcement system violates the First Amendment to the U.S. Constitution.

In a society that values free expression, nothing could be more dangerous than giving incumbent politicians or their cronies the power to sue people who merely mention their names in the newspaper. When Holland’s lawsuit is successful, speakers throughout the state will be able to breathe a sigh of relief, and would-be censors will have one less weapon to wield against those whose only crime is voicing

their opinion.