Colorado Common Cause and Colorado Ethics Watch filed a complaint in Denver District Court against Secretary of State Scott Gessler late this week that claims Gessler unlawfully weakened Colorado campaign finance laws through the Secretary of State’s rulemaking process.The Secretary of State does not have authority to change state law, and therefore Common Cause and Ethics Watch have asked the court to invalidate the Secretary of State’s rule.

After receiving comments in opposition to the new Campaign and Political Finance Rule 4.27, which “increases the contribution and expenditure threshold that triggers the requirement for an issue committee to register and file disclosure reports,” Secretary Gessler issued a notice of adoption of the rule on May 13. The rule raises the threshold from $200, as defined in the Colorado Constitution, to $5000. In addition, the rule eliminates the requirement to disclose any information about the first $5,000 of contributions and expenditures by an issue committee. The Court of Appeals has already held that the Secretary of State has no authority to promulgate rules that add, modify or conflict with constitutional provisions, the two organizations said. 

“The Secretary is under the mistaken impression that he has authority to rewrite campaign finance laws, not merely make rules to enforce those laws,” said Luis Toro, executive director of Colorado Ethics Watch.  “Disclosure thresholds are clearly not within the authority of the Secretary of State to change.”

“If allowed to be enforced, this rule would make it even easier for issue committees to get a measure on the ballot while never disclosing who is behind this measure and how they are spending money to influence voters,” concluded Jenny Flanagan, executive director of Colorado Common Cause.

Following the filing of the complain, Gessler released the following statement:

“After spending hundreds of thousands of dollars over the past four years, the state lost on this issue in federal court and paid the opponent’s attorneys fees,” Gessler said. “This latest complaint only adds insult to injury. My goal with the new rule is to help insulate the state from more lawsuits and preserve our limited resources.

“The fact is, if this complaint is successful, the state will be exposed to more lawsuits and we’ll be forced to pay attorney’s fees for each subsequent lawsuit.”

Last year, the Tenth Circuit Court of Appeals found that the existing $200 threshold for issue committee registration and reporting was unconstitutionally low. Thus, Gessler stated, without a higher threshold, issue committee reporting may be essentially unenforceable.