A bill that would codify a 2018 federal court decision that struck down much of Colorado’s enforcement of its campaign finance system won party-line approval from a state Senate committee Monday.
Senate Bill 232 puts the Democratic Party in an odd position.
Three years ago, the party, Common Cause, America Votes and a host of left-leaning organizations opposed the original version of Senate Bill 16-106, which would have allowed the secretary of state -- then Republican Wayne Williams -- to appoint an administrative law judge to handle campaign finance complaints.
Under the 2016 bill as written, the administrative law judge appointment would have been be made based on the recommendation of a panel of two, one from each major political party. That just didn’t sit well with the left-leaning groups that opposed the earlier measure, according to former deputy Secretary of State Suzanne Staiert, who testified against SB 232 on Monday.
Staiert explained that, now that a Democrat -- Jena Griswold -- is secretary of state, those objections have disappeared.
SB 232 would put into law rules adopted by Williams last year in the wake of the Holland v. Williams decision in June 2018, in which a federal court judge ruled that Colorado’s private enforcement of campaign finance violations was unconstitutional.
Prior to the June 2018, decision, under Amendment 27, adopted by voters in 2002, those complaints were referred to an administrative law judge under the Department of Personnel and Administration and without any review by the secretary of state.
After the Holland decison, Williams adopted rules that required the secretary of state to review complaints, and if appropriate, pass them along to the ALJ.
According to Staiert, the office under Williams never had any intention to codify those rules into statute. She told the Senate State, Veterans and Military Affairs Committee Monday that Williams' staff had almost nothing statutorily to go on in the wake of the Holland decision except for the state’s Administrative Procedures Act, which allows agencies to conduct rulemaking.
Staiert explained that the 2016 bill would have allowed the secretary of state to appoint his or her own administrative law judge, but after a review of resumes by a bipartisan panel. Under SB 232, however, the secretary of state would appoint a hearing officer to review the complaint and that person would not be independent, she maintained.
Once the hearing officer reviewed the complaint under the measure, the next step would be to go to the deputy secretary of state, who is a political appointee and who could disregard the hearing officer’s recommendation.
Staiert pointed out that groups like Common Cause and America Votes, which is aligned with the Democratic Party, testified against an almost identical set-up in 2016, when Republican Williams was secretary of state.
“Here they are now signed up in favor of this bill that makes the problem worse,” she said.
The bill also would allow the secretary of state’s office to audit campaign finance filings over and above the way the current system -- Transparency in Contribution and Expenditure Reporting, or TRACER -- flags filings. TRACER catches filings where donors exceed campaign contributions, for example.
But the bill would allow the secretary of state’s office to subpoena “additional information. If you don't think that’s not donor lists and financial information, you’re kidding yourself,” Staiert told the committee.
And while the bill says such information would not be subject to the state’s Open Records Act, it doesn’t mean that the office couldn’t release it, she added.
“This bill is a completely partisan look on campaign finance” that relied on left-leaning groups like Common Cause and Planned Parenthood and without a true stakeholder process, Staiert said.
The better model, she said, would be to set up a system similar to the Federal Elections Commission, which has three Democrats and three Republicans who vet claims and determine whether to investigate complaints.
Staiert also pointed out that since Griswold was elected, complaints against Democrats -- four -- have been dismissed while complaints against unaffiliated candidates and groups are still awaiting final decisions.
In one complaint, she said, Griswold was asked to recuse herself because she was a beneficiary of the electioneering being done by the respondent, the website Colorado Pols. Griswold refused to do so, Staiert said.
“When there are five cases and four affiliated with the Democratic Party are dismissed, that doesn’t feel good," she said.
Griswold, the current secretary of state, testified in favor of the bill, claiming it would modernize the state’s enforcement system.
She explained the bill’s audit provision, stating that there will be random audits as well as audits of campaign finance filings and “related materials.”
She said the rules for the random audit must be fair and nonpartisan, and pointed out that the people doing the initial review are career civil service staff, some who have served the office back to the days of then-Secretary of State Mike Coffman.
She also said the hearing officer outlined in the bill would be a non-staff person. “We could have had someone in-house,” she said, but “I don’t agree with that.”
Also speaking in favor: attorney Martha Tierney, who represents the state Democratic Party. Committee chair Sen. Lois Court of Denver asked Tierney if she believe the bill was partisan. "No," said Tierney.
The bill also would reverse one of the rules Williams set up last summer that wasn’t directly addressed in the Holland decision -- the amount of time allowed to file a campaign finance complaint. Under Williams’ rules, the statute of limitations for filing a complaint, and as set up in Amendment 27, was cut from 180 days to 90 days.
The bill won the committee’s approval on a 3-2 party line vote and now heads to the Senate Appropriations Committee, where it carries an estimated cost of $217,000 in 2019-20.