Litigants gave their final pitches on Thursday morning about whether a federal judge should immediately block Colorado’s constitutional limits on campaign contributions because they are so low as to violate the First Amendment.

The plaintiffs, who are three current or former Republican candidates for office, contend that the current caps on how much individuals may donate to candidates – $1,250 for a statewide candidate and $400 for a legislative candidate per election cycle – run afoul of the U.S. Supreme Court’s interpretation of what effective campaigning requires. For decades, the nation’s highest court has seen political spending as intertwined with freedom of speech.

“Ultimately, the First Amendment is not concerned with who wins. The First Amendment is concerned with maximizing the speech and the ability for candidates to get out their message,” said Daniel Burrows, an attorney with the conservative group Advance Colorado. The facts before the court, he explained, “paint the picture that challengers would not have sufficient resources to run competitive campaigns under these limits.”

The Colorado Attorney General’s Office conceded that Colorado’s caps for legislative races are the lowest in the country, and the donations allowed for statewide candidates are also near the bottom. But the government added that there appeared to be no correlation between Colorado’s constitutional limits and the rate at which incumbents win elections, and the plaintiffs had shown, at most, that candidates simply prefer having more money to reach more voters.

“Would raising more money help challengers? Sure. Would raising more money help incumbents? Sure,” said Assistant Attorney General Michael T. Kotlarczyk. But plaintiffs “need to show that challengers specifically are being harmed here, and they can’t show that.”

Voters in 2002 adopted Article 28 as a constitutional amendment, two provisions of which are part of the legal challenge. The first component consists of the dollar limits to candidates, and the second allows candidates to voluntarily restrict their total spending, in exchange for being eligible to collect donations twice as large as the caps.

Although Article 28 permits the caps to increase with inflation, only the limits for statewide candidates have increased in the past two decades.

According to the National Conference of State Legislatures, approximately half a dozen states have no limits at all for individuals’ contributions to statewide and legislative candidates. Of the states that do have caps, Burrows pointed out that Wisconsin, whose population is similar to Colorado’s, allows up to $20,000 for statewide candidates and between $1,000 and $2,000 for legislative candidates.

Even in neighboring Wyoming, the least populated state, donation caps are $2,500 for statewide and $1,500 for legislative candidates.

The Supreme Court has established that there are “danger signs” for contribution caps if they are substantially lower than what other states have enacted or lower than what the court has previously upheld. To evaluate the constitutionality of those limits, courts employ the “Randall factors,” named for the court’s 2006 decision in Randall v. Sorrell that invalidated Vermont’s campaign finance act based on its unjustifiably low contribution limits.

Burrows argued that the plaintiffs could succeed if the Randall factors, as a whole, favored their argument. While he agreed that political parties in Colorado can give substantially greater amounts of money to candidates, Burrows believed other Randall factors, like the lack of inflationary increases, were more damning. He cited the widening gap between actual inflation and the contribution caps in justifying why the plaintiffs chose to bring their lawsuit months before the 2022 primary election. 

The gap “gets worse every single year. And a burden that a person might tolerate living under for a while because it’s too much trouble to bring a court case, or they don’t have the resources, or they don’t know the argument, eventually becomes intolerable at a point,” Burrows said.

The plaintiffs in the case are Rep. Rod Pelton, R-Cheyenne Wells, who is a candidate for the state Senate this year; Greg Lopez, a current and former Republican gubernatorial candidate; and Steve House, the former chair of the Colorado Republican Party and former candidate for Congressional District 6. Currently, they are seeking a preliminary injunction that would block the secretary of state’s office from enforcing Article 28’s donation limits.

Kotlarczyk responded that Colorado’s campaign finance scheme differs in several respects from the one the Supreme Court struck down in Randall. He argued that there will likely be an inflationary increase in 2023 for legislative contributions, that the state Democratic and Republican parties both delivered six-figure donations to statewide candidates in 2018, and that voters approved Article 28 in part as an anti-corruption measure.

Kotlarczyk pointed to testimony on Wednesday in which Lopez and Pelton could not name their donors who had given the maximum amounts, nor could House name the candidates to whom he had given the maximum.

“I think there might have been some confusion about were we trying to embarrass those witnesses? Far from it,” Kotlarczyk said. “The fact they couldn’t name their maximum campaign contributors is exactly what the voters of Colorado wanted. They didn’t want a situation where candidates know, these are the people who maxed out to me. These are the people who gave me the most money.” 

Both sides had also presented expert witness testimony about the possible effect of Colorado’s donation caps on the incumbency rate for legislative candidates.

U.S. District Court Senior Judge John L. Kane indicated he would issue an order on the request for an injunction either later on Thursday or on Friday.

The case is Lopez et al. v. Griswold et al.