[BoulderCouncilHotline] My take on the 2017 election - campaign violations and enforcement

[Weaver, Sam]

Fellow Council Members and HOTLINE followers,

I wanted to share some of my thoughts on Boulders' campaign finance regulations ahead of tonight's meeting.  During the 2017 election season, witnessing the stories on 'dark money' in the election, I dug in to the Boulder ordinances and case law to make up my own mind about whether there had been significant violations and missed enforcement cases.  After this study, I believe the City of Boulder elections of 2017 witnessed flagrant violations of Boulder campaign finance laws.  Some of the clear violations may reveal a constitutional conflict between Boulder laws and Federal case law.  One violation, in my opinion, clearly did not have this constitutional consideration in play, and the groups involved should have been required to disclose their funding and abide by the Boulder requirements.  A thorough review is in order, and details of my opinion on the violations and failure to enforce disclosure requirements follow.

The section in the Boulder Revised Code that governs elections and campaign finance reporting is Title 13.  Within that title is Chapter 2, Campaign Financing Disclosure. Section 13-2-1 Legislative intent has a subsection (h) which reads:

'The purpose of this chapter is to provide for transparency in the expenditure of monies spent on campaigns and not to regulate speech. Making an endorsement supporting or opposing a candidate or ballot measure, or solicitation of such an endorsement by a candidate, committee, or other person, is not regulated by this title. However, the expenditures for publishing endorsements, and any contributions for support or opposition to a candidate or ballot measure other than the endorsement itself, are regulated by this title in the same way as other contributions and expenditures.' [emphasis added].

The paid advertising by Open Boulder and Engage Boulder of their endorsements in the 2017 elections clearly is covered by this legislative intent, triggering registration and reporting requirements on the organizations paying for them.  The paid endorsements distributed in 2017 covered by this provision includes one that not only states its endorsements, but also urges voters to vote for 5 specific candidates (indeed in my opinion qualifying as 'substantially similar' to the 'magic words' which determine 'express advocacy' covered by the Colorado standards established in COLORADO ETHICS WATCH v SENATE MAJORITY FUND and derived from Buckley v Valeo).  The entity who paid for these fliers and their mailing should have been required to follow the rest of the Chapter, including 13-2-6 and 13-2-9.

13-2-6 requires the formation and registration of Unofficial Candidate Committees subsequent to certain actions. While UCC's were formed by Open Boulder and Engage Boulder, they did not appear to cover the expenses of the mailed distribution of endorsements, including the flier whose first word is VOTE in bold, and which has check marks next to five candidate names.  Here is the definition of Unofficial Candidate Committees from 13-2-2:

'Unofficial candidate committee means any two or more natural persons who collaborate together, or any corporation, partnership, commission, association, or any other organization or group of persons, that accepts contributions or makes expenditures for the purpose of expressly advocating the election or defeat of a clearly identified candidate for city council. An unofficial candidate committee ceases to be independent if its expenditures are in any way, directly or indirectly, controlled by, coordinated with, or made upon consultation with any candidate or candidate committee or agent thereof.'

When this definition is interpreted in light of the legislative intent (13-2-1(h)) it is specifically clear that the covered expenditures include publishing endorsements, much less the express advocacy for candidates found in one widely distributed mailing.

So the entities who published the advertisements of endorsements were in clear violation of the intent and letter of the law by not registering as an unofficial candidate committee (or by not donating to the Open Boulder UCC per the $100 limit and other regulations) with the City of Boulder (13-2-6) and reporting their contributors and expenditures (13-2-9).

There is an argument being made that the definition of 'express advocacy' in the Boulder Code would be required to conform to the limitations as defined in Buckley vs Valeo (1976, 424 US 1). For application of this to Colorado, citations are made of the Colorado Supreme Court ruling in Ethics Watch vs Senate Majority Fund (269 P.3d 1248 (2012)). A read of the Buckley ruling shows that much of how the US Supreme Court made its interpretive decision in which 'magic words' are developed and cited as a legal precedent comes from reading the legislative intent when the campaign finance laws were developed. The Ethics Watch case is not in the context of elections held under the Boulder laws, with its express legislative intent declaration that organizations advertising 'endorsements' will comply with the registration and reporting requirements stipulated by the Boulder code.

Boulder is a home rule city under the Colorado constitution. Article XX of the Colorado Constitution governs home rule authority, and section 6 governs home rule powers.  Subsection d governs municipal election authority:

'd. All matters pertaining to municipal elections in such city or town, and to electoral votes therein on measures submitted under the charter or ordinances thereof, including the calling or notice and the date of such election or vote, the registration of voters, nominations, nomination and election systems, judges and clerks of election, the form of ballots, balloting, challenging, canvassing, certifying the result, securing the purity of elections, guarding against abuses of the elective franchise, and tending to make such elections or electoral votes non-partisan in character;'

It is clear that Boulder's campaign finance reporting system is authorized under home rule authority, and legal under Colorado law.  So the only open question is how the Supreme Court would interpret the free speech issues of Boulder's ordinance in light of the Buckley decision, in the presence of the explicit voter intent that paid endorsements be reported.  While this is an interesting legal question, its speculative outcome is very uncertain, leaving the clear duty of the City Manager to follow the City ordinances as they are written, and in the case of all of Open Boulder's and Engage Boulder's paid candidate endorsements, required those groups to register and report.  They did not, and our City staff failed to enforce our campaign finance reporting laws. Both the process failures, and the letter of the laws need to be addressed by the newly seated Council.  Further, one of the Open Boulder mailers uses terms (VOTE) and checkboxes next to specific candidate name in a way that I believe would be found to be substantially similar to 'Vote for...' and trigger express advocacy reporting of electioneering expenses.

While City staff was not inclined to even hold a hearing on the issue for many of the paid endorsements, it should at a minimum have been clearer about why it did not.  The concept that the city would be challenged in court is absolutely no reason to fail to find probable cause of a violation by unregistered Unofficial Candidate Committees.  These groups did not report their candidate-related expenditures for advertising, paid endorsements, food, phone calls, text messaging and staffing.  With at least one advertisement being extremely close to express advocacy (clearly so in my view) and using undisclosed funding that likely exceeded the $100 per donor contribution limit, then at a minimum a hearing should have been held.  The failure of the City Manager and/or City Attorney to recommend a transparent hearing which aired the arguments over advertisements that are so clearly in violation of the intent and perhaps also the letter of Boulder's campaign reporting laws has very poorly served the citizens of Boulder.  I would have also supported hearings on the complaints filed against the Sierra Club and PLAN Boulder in the interest of transparency and support of enforcing our campaign finance system.

All the best,

Sam Weaver
Member of Boulder City Council
weavers at bouldercolorado.gov<mailto:weavers at bouldercolorado.gov>
Phone: 303-416-6130

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://list.ci.boulder.co.us/pipermail/bouldercouncilhotline/attachments/20171219/d69099c0/attachment.html