Outsourcing of Campaign Law Challenged

     DENVER (CN) – A community gadfly who opposes Common Core standards sued Colorado, claiming its peculiar “private enforcement” of campaign finance laws is unconstitutional, and cost her thousands of dollars to defend herself in lawsuits.
     Tammy Holland is the mother of a middle-schooler in Strasburg, a town of 2,500 about 40 miles east of Denver. She sued Secretary of State Wayne Williams in Federal Court on Wednesday.
     Holland says she’s spent more than $3,500 in attorney’s fees to defend herself in two lawsuits that accused her of violating Colorado campaign finance laws by placing ads in her local paper for a school board election.
     “Unlike most states – in which campaign-finance laws are enforced directly by the
     Secretary of State or another government agency – Colorado has outsourced enforcement of its campaign-finance laws to the public at large,” her complaint states. “Under Colorado law, ‘any person’ may initiate a lawsuit to enforce Colorado’s campaign-finance laws by filing a complaint with the Secretary of State. The Secretary of State must forward these complaints to the Office of Administrative Courts, triggering full-blown litigation in which the complainant is entitled to use all the tools of discovery in furtherance of even the most baseless and abusive complaints.
     “The result of Colorado’s private-enforcement system is that Coloradans who exercise their First Amendment rights are exposed to arbitrary, viewpoint-based retaliation and costly litigation with no accountability and no effective check by the Colorado executive branch.”
     Holland frequently places ads in the I-70 Scout, criticizing Common Core curricula and the increased use of standardized testing in the school district.
     The ads that triggered her legal battle, published before the November 2015 school board election, detailed the merits of the candidates, and called some sitting board members “citizens who no longer have children that attend Byers school district.”
     Byers School District Superintendent Tom Turrell sued her, claiming she violated Colorado law by failing to register as a political committee, and failing to put a “paid by” disclaimer in the ad.
     Holland says she was not offered a public defender, and so would have to represent herself in court or hire an attorney. She hired a lawyer, but the superintendent withdrew the lawsuit two days before the first hearing.
     When Holland asked to be reimbursed for attorney’s fees, the superintendent and school board member Tom Thompson sued her again.
     Holland sued the state Wednesday, claiming its outsourcing of campaign-law enforcement is unconstitutional.
     “Mr. Turrell and Mr. Thompson seem to be upset that the ads implied that incumbent candidates didn’t care about the students as much as the non-incumbent candidates did,” her attorney Paul Sherman told Courthouse News.
     “Mr. Thompson was also bothered that the ads listed qualifications for the non-incumbents, but not for the incumbents. Neither of those things, however, violate Colorado’s campaign finance laws, which in this case only apply to ads that ‘expressly advocate’ the defeat or election of specific candidates.”
     In the lawsuit, Holland says she attended the Oct. 15, 2015 school board meeting, during which Thompson “made clear that she had ‘instructed’ Superintendent Turrell to file the complaint against (her).” Thompson also said that he “was preparing to re-file the complaint against Ms. Holland in his own name.”
     After discussing Holland’s pending request for attorney’s fees in the first case, “Thompson warned her that ‘I think you’d better keep your lawyer’ – a statement another board member characterized as a ‘threat,'” Holland says in the complaint.
     The very next morning, she says, Turrell left a voice message on her answering machine, saying: “If you would consider dropping the countersuit for fees and expenses, that they would consider it being all done.”
     Attorney Sherman, who took on Holland’s case after the second lawsuit was filed, says Holland’s experience illustrates how politicians can abuse Colorado campaign finance laws to silence citizens who may not have the money to fight frivolous lawsuits.
     “That really highlights the problem with Colorado’s system,” Sherman said. “If a lawyer in the Secretary of State’s Office had been required to review these complaints, they would have immediately seen that Tammy broke no law and thrown out the complaint. Instead, the secretary of state was required to forward the complaints to the Office of Administrative Courts for full-blown litigation.”
     He added: “In most states, if you think someone has violated the campaign finance laws, you can file a complaint with the secretary of state or a specialized agency, which will investigate the complaint and decide whether there’s a good reason to believe that the law has been violated. Frequently, when violations are minor, these government actors will simply call the person up and tell them to correct the error.
     “But Colorado has none of those safeguards. Instead, in Colorado, the campaign finance laws are enforced by private citizens, and any private citizen has the power to initiate a campaign finance lawsuit against any person they merely suspect of violating the law.”
     Ironically, Secretary of State Williams, the sole defendant, appears to agree with Holland.
     “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,” Williams said in a recent statement.
     Sherman says that makes him optimistic that Holland’s case could be a catalyst for permanent change.
     “The fact that the secretary of state himself admits that this system routinely results in frivolous and abusive litigation makes us extremely hopeful that the federal court will find the system unconstitutional,” Sherman said.
     Secretary Williams told Courthouse News that the major issue with Colorado campaign finance laws wasn’t a specific rule in itself – it was a lack thereof.
     Williams explained that currently, when Coloradans call his office and ask for advice or guidance regarding flyers, ads, and other means of individual campaign support, he can’t always give them a straight answer.
     “The situation we have right now is that if you are a group of people who get together and want to take out an ad, or copy a flyer and pass it out to your neighbors, we can’t tell you what the law is,” Williams says.
     He references two Colorado court decisions that allowed a $782 expense and a $3,500 expense for campaign funding because they applied the freedom-of-speech provision from the U.S. Constitution in both cases.
     But another court decision only further complicated the laws, as a Fort Collins charter school was forced to take down a Facebook post regarding the parent of a student who was running for the school board. Administrative law judge Matthew E. Norwood ruled that the post and its subsequent likes and shares constituted a campaign contribution.
     “They said that a Facebook post and likes and shares of that post can constitute a campaign contribution,” Williams said.
     “The school had to take down the link. So they just did it, rather than paying the cost of appealing it. Because our system really allows anybody to bring that complaint, there’s no screen of it – for participating in our democratic republic, you then wind up having to hire a lawyer to defend yourself.”
     He added: “There’s some challenges in the ways the laws work.”
     Holland seeks declaratory judgment that the private enforcement provisions of the law at issue are unconstitutional, an injunction – and attorney’s fees.
     Attorney Sherman is with the Institute for Justice, in Arlington, Va., assisted by Clifford Beem, with Beem & Isley, in Denver.

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