[BoulderCouncilHotline] FW: Alleged Campaign Violations

[Carr, Thomas]

Council,

Several council members have enquired regarding the city's campaign finance law.   Mayor Jones suggested that it would be helpful if I provided some background via Hotline.

Among other things, Boulder's campaign finance laws regulate unofficial candidate committees.   The independent expenditures of such committees are required to be disclosed in a manner consistent with Boulder's campaign finance laws.  An "independent expenditure" is defined in part as ". . . an expenditure by any person for the purpose of expressly advocating the election or defeat of a candidate or candidates, which expenditure is not controlled by, coordinated with, or made upon consultation with any candidate or candidate committee . . ."  The U.S. Supreme Court and the Colorado Supreme Court have provided guidance interpreting the breadth of campaign finance laws when balanced against persons free speech rights under the first amendment of the United States Constitution.

Political speech is afforded a high level of protection.  In 1976, the U.S. Supreme Court upheld a federal campaign finance disclosure law in a case entitled:  Buckley v. Valeo.  The court held that the government had a substantial interest in preventing corruption, so limiting and requiring disclosure of campaign contributions did not violate the constitution.  The court however, said that the constitution allowed only government limitations on speech involving "express advocacy."  The court held as follows: "to preserve the provision against invalidation on vagueness grounds, § 608(e)(1) must be construed to apply only to expenditures for communications that, in express terms advocate the election or defeat of a clearly identified candidate for federal office."  In a footnote, appended to that text the court explained: "This construction would restrict the application of § 608(e)(1) to communications containing express words of advocacy of election or defeat, such as 'vote for,' 'elect,' 'support,' 'cast your ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' 'reject.'"

The Colorado Constitution defines "expenditure" to include "any purchase, payment, distribution, loan, advance, deposit, or gift of money by any person for the purpose of expressly advocating the election or defeat of a candidate."  In 2012, in Colorado Ethics Watch v. Senate Majority Fund, the Colorado Supreme Court considered a complaint involving an alleged failure to comply with campaign finance disclosure laws.  The advertisement did not use any of the "magic words," described in the Buckley decision, but instead stated that the group endorsed certain candidates.

The Colorado Supreme court held that a statement of endorsement was not express advocacy and therefore not a reportable expenditure.  The court upheld dismissal of the complaint.  As noted above, the city's definition includes language identical to Article XXVIII of the Colorado Constitution, which under the Supreme Court's Colorado Ethics Watch decision applies only to expenditures that constitute "express advocacy," that is, statements using of one of the "magic words" or substantially similar synonyms.


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