DU panel recommends campaign finance reform

Eliminate limits on political contributions?
The Colorado Statesman

A University of Denver panel that analyzed campaign finance laws has made a set of recommendations for reform in Colorado, including eliminating limits on political contributions to candidates and political parties, and requiring nonprofits to reveal donors when contributions are made for political purposes.

The 19-member panel made its recommendations on Nov. 12 after a yearlong study that included 13 presentations from experts, including Secretary of State Scott Gessler, former House Speaker Andrew Romanoff, election law attorney Mark Grueskin and Colorado Republican Party Chairman Ryan Call, among others.

Members of the panel represented leaders in business, health services, education, public advocacy and government. Participants included Joe Blake, former chancellor of the Colorado State University System and the former chief executive of the Denver Metro Chamber of Commerce; Dick Robinson, chief executive of Robinson Dairy; attorney John Moye, a partner with Moye White, LLP; former state Sen. Polly Baca; and Stephanie Villafuerte, executive director of the Rocky Mountain Children’s Law Center, among others.

The report of the DU Strategic Issues Panel on Campaign Finance is titled, “Money, Elections and Citizens United: Campaign Finance Reform for Colorado.”

“We hope that the work of the panel and the ideas presented in this report will stimulate an informed discussion among citizens and their elected representatives, one that can improve the electoral marketplace and strengthen our democracy,” said University of Denver Chancellor Robert Coombe. 

The recommendations include:

• Legislation — likely by referring a measure to voters — that removes limits on political contributions;

• Adopting a limited state income tax credit for individual political contributions;

• Requiring 501c (4), (5) and (6) organizations — nonprofits — to offer donors the ability to choose whether they want contributions to be used for political advocacy;

• Requiring every 501c (4), (5) or (6) organization to disclose the names of all individuals who have chosen to allow contributions for political activity;

• Mandating that corporations making contributions with their own funds to disclose the names of chief executives and directors;

• Creating an active disclosure list publicizing major direct and indirect contributors to candidates and issue committees;

• Increasing the threshold for itemized reporting from $20 to $200; and

• Requiring that major contributor reports be applied in both even- and odd-numbered years.

The panel was forced to deal with the thorny issue of Citizens United v. Federal Election Commission, a U.S. Supreme Court case in which the high court in 2010 ruled in favor of unlimited spending by corporations and unions. The ruling essentially opened the floodgates, and the 2012 election cycle saw spending by independent political interest groups of more than $1 billion.
The high court is currently considering another critical case, McCutcheon v. FEC, in which it will determine whether to remove federal limits on the amount of money an individual can donate to parties, candidates and PACs during a two-year federal election cycle.

Rather than resist Citizens United — and the looming McCutcheon v. FEC case — the DU panel appears to be moving in the direction of embracing it as a reality of the times.

“When addressing the issue of campaign finance, reforms need to accommodate an environment where unlimited political contributions and spending are the dominant reality,” said panel chairman James Griesemer.

Rebecca Swanson, an associate director with the DU Strategic Issues Program, said the goal of the panel was to find a balance.

“The tide sort of turned to court-based decisions, and the panel explored this and really decided that rather than go in and do some sort of ideological statement about Citizens United, they were going to look at where we are now,” explained Swanson. “The rising river of money is not likely to go away, so let’s look at the current legal landscape."

But in Colorado, that direction is a bit more complicated. Voters backed Amendment 65 in 2012, which calls on the Colorado congressional delegation to support an amendment to the U.S. Constitution that would effectively overturn Citizens United. The initiative, however, was largely symbolic, as amending the U.S. Constitution would be an enormous task, which has seen little movement by federal lawmakers.

Colorado also has Amendment 27, which voters backed in 2002 to ban direct corporate or union expenditures to campaigns for state office. But Citizens United effectively negated that initiative.

One of the most interesting recommendations from the panel was to eliminate limits on political contributions, which would likely come through a constitutional voter initiative.

The panel had heard from both Republicans and Democrats who supported eliminating the limitations.

“We have such small dollar limits that the candidates spend a huge, inordinate amount of time chasing money because they have to fill an ocean one teaspoon full at a time,” explained Republican Secretary of State Gessler.

On the other side of the aisle, Democratic election law attorney Grueskin agreed, suggesting that monetary contributions equate to political free speech.

“When you have a doubt, we choose speech, particularly, we choose political speech,” Grueskin told the panel in November 2012. “To the extent that the question about campaign finance regulation is raised, this is the framework in which I believe you should consider it.”

The panel concurred, suggesting that unlimited spending equates to “a marketplace of ideas.”

“While advocates of unlimited spending differ with those who would limit money in politics, there is one point on which both agree: the benefits of an effective marketplace of political ideas,” the panel writes in its report. “Supporters of both views favor an electoral process that encourages a healthy exchange of views and helps voters make informed political choices.

“Thinking about campaign finance in terms of fostering a marketplace of ideas provides a perspective that embraces both free speech and anti-corruption concepts,” the report continues.

Incoming Senate President Morgan Carroll, D-Aurora, who has in the past been critical of loopholes created by Citizens United, said she is mixed on the recommendation. She introduced legislation in 2010 that forced some corporations and unions to register an independent expenditure committee.

“It might shift more political money to transparently disclosed entities, which is good,” she said of unlimited spending. “But it removes an important equalizer between wealthy and regular donors, which is not good.”

Progressives are also concerned. The Colorado Progressive Coalition believes removing the cap would give people with means an unfair influence over specific politicians and issues.

“For many in Colorado, ‘speech’ must be spent on food to feed their children, or medicine to keep them alive, not on campaign contributions,” explained Corrine Fowler, economic justice director for the Colorado Progressive Coalition.

“America has become more economically unequal than any other developed nation, causing daily fears for the working class,” added Fowler. “But we still live in a democracy — and we are supposed to depend on the fact that under our constitution each individual vote counts equally.

“If we allow a small percentage of wealthy individuals to make unlimited contributions to political candidates, essentially purchasing elections, we are shedding one of the last equalizers in our society — we are relinquishing our democracy to the highest bidder,” she continued.

Colorado Common Case, which led the effort to pass Amendment 65, is also concerned with unlimited spending. Elena Nuñez, executive director, said it’s unacceptable to simply roll over because of Citizens United.

“It’s not enough to say that the status quo is OK, and that’s why the voters passed Amendment 65, because they didn’t think that the Supreme Court got it right, and they want to be able to set reasonable limits on contributions and spending,” said Nuñez. “We need to change the status quo by amending the constitution.”

Nuñez acknowledges that it is an uphill battle to amend the U.S. Constitution. But she says it is worth the fight.

“It’s going to take a lot of work, and I think voters are going to continue to need to send the message to their elected officials that this is something that they want to see…” she said. “But it’s important, so we view this as a long-term battle.”

Where there is more consensus is on the issue of disclosures. Requiring nonprofits, particularly so-called “c (4)s,” to list contributions for political activity and the names of chief executives and directors, could be a step in the right direction, say stakeholders.

The DU panel had heard presentations that highlighted the unclear nature of campaign finance laws, especially as it pertains to coordinating with special interest groups. Candidates are prohibited from coordinating with PACs, but there are several loopholes. The panel believes it is time to take action, and disclosures could be the first leap.

“Strengthening public disclosure of political contributions and spending is one of the most important campaign finance reforms for Colorado and the nation,” the panel opined in its report.

“Disclosure provides the transparency needed to balance the cascade of money flooding into the electoral process,” the report continues. “An effective policy of disclosing campaign contributions and spending is the principal bulwark against the domination of the electoral process by those applying the greatest financial resources.”

The panel goes on to agree that money can in fact influence speech, suggesting that the two are analogous: “Those with the most money have the largest megaphones in the marketplace,” states the report.

“Candidates with strong financial backing can drown out competitors, frame issues to their own liking and define the contours of the debate,” the panel continues.

With that in mind, the panel suggests, “The transparency provided by an effective disclosure system allows voters to know which individuals and interests are funding various candidates or supporting particular issues.”

Nuñez believes disclosures could provide significant progress in at least attempting to equalize the system.

“They recognize the need for full disclosure of all political contributions,” she said.

But Nuñez said little would be accomplished while the floodgates are open.

“It allows those who write the largest checks to drown out the voices of everyone else,” she said. “It’s elevating the speech of those who can write huge checks above everyone else.”