Karen Hobert Flynn, president of Common Cause, joins the chorus of campaign finance “reformers” who are concerned about the nomination of Judge Neil Gorsuch to the United States Supreme Court, claiming that his “record on money in politics . . . raises significant concerns among legal experts.” (Some legal experts, that is.) Moreover, Hobert Flynn asserts, “[Gorsuch’s] champions indicate he’ll protect the privileges of the wealthy and powerful at the expense of everyday Americans.”
Well, that’s rich: Common Cause has led the way to empowering entrenched political interests over the less wealthy and less politically connected. Their experiment in Colorado proves the point.
In 2002, Colorado Common Cause supported Amendment 27, a ballot initiative to amend the state’s constitution. In fact, the organization takes credit for leading the effort, having “gathered [sic] and placed Amendment 27 on the ballot[.]”
The comprehensive amendment enacted contribution limits on a per-contributor, per-election basis, distinguishing between “a primary or a general election[.]” This led to state law that unfairly disadvantaged minor party candidates and independent candidates, who do not participate in primary elections. For example, in an election cycle an independent candidate running for a seat in the Colorado House could raise up to $200 from a single contributor for the general election, but his Republican or Democratic opponents could raise $200 in the general and potentially carry over an additional $200 raised from the same contributor during the primary election.
This disparity was not only unfair, but blatantly unconstitutional. It also bears noting that independent and minor party candidates are usually cash-strapped already, and should be the very last political participants that groups like Common Cause would overlook when drafting “common-sense” laws.
Thankfully, in 2014, the Tenth Circuit Court of Appeals remedied the disparity in Riddle v. Hickenlooper. Enter Judge Gorsuch, who wrote a thoughtful concurring opinion in the case, his only campaign finance opinion thus far, largely discussing the tension between First Amendment scrutiny in the campaign finance context and how it should carry over to Equal Protection claims under the Fourteenth Amendment.
Rather than acknowledge its goof in helping create the “ill-advised Colorado statute” that led to the Riddle case, Common Cause now warns of the level of scrutiny Judge Gorsuch might apply generally to campaign finance limits. But the problems with Amendment 27 did not end with Riddle: Common Cause’s jewel is in many other ways the antithesis to “a functioning democracy to debate our differences” and one of the main reasons we need judges like Gorsuch who should apply the strictest First Amendment scrutiny to campaign finance regimes.
Thanks to Amendment 27, grassroots speakers in Colorado have had to go to federal court to fight off campaign finance requirements over raising just a few thousand dollars to fight a local annexation effort. To comply with registration and reporting requirements to raise and spend so little money would eat up most of the budget. More recently, another group had to bring a similar suit just to publish a policy paper. The cases took years to resolve, and cost hundreds of thousands of dollars in legal fees.
Most campaign finance complaints in the state are initiated by political elites or self-styled “reformers,” who use the law to their advantage to punish their opponents. Some of Colorado’s most active complainants are little more than shakedown artists, who, thanks in part to Common Cause, have had people fined thousands of dollars for basic accounting errors.
For those brave enough to go to court, fight back and endure, judges like Gorsuch are the only remedy. But this does not solve the fundamental problem with these regimes: requiring citizens to go to court to remedy “common-sense” is the last way to ensure “Americans of all incomes, races and backgrounds can run for office and have [their] voices heard[.]” Nevertheless, Colorado Common Cause has made that a requirement, successfully fighting back against rulings that have protected grassroots engagement.
Common Cause should be, at the very least, thankful that someone bothered to clean up part of their mess in Colorado. Instead, they will continue to sweep it under the rug. For long-term success it would behoove groups across the reform spectrum to put half of the effort that Judge Gorsuch put into his concurrence in Riddle into drafting the laws they support. Otherwise, they should not be surprised when these regimes come crashing down under the full weight of constitutional law or are torn down after being recognized as nothing more than dirty political tools.