Photo by Hyoung Chang/The Denver Post Former Congressman Bob Beauprez founded Colorado Pioneer Action to oust undesirable Republicans in primaries and support desireable Republicans in the 2016 general election. A judge ruled last week he must disclose the nonprofit’s donors and register as a political committee.
Colorado Administrative Law Judge Robert Spencer ruled last week that former congressman and two-time gubernatorial candidate Bob Beauprez’s charity violated campaign finance law by failing to register as a political committee. Spencer fined the group $17,735 and ordered Beauprez to disclose donors.
The ruling, if upheld on a possible appeal — and that’s a big if — could shut down groups that have been narrowly circumventing Colorado law that requires political committees to both limit the amount of donations and disclose the names of donors.
But Spencer did in his 20-page ruling what I do as a columnist when I write about campaign finance issues. He upheld the spirit of the law, which attempts to balance free and unregulated political speech with the public interest of disclosure and donation limits.
His ruling, however, stretches the letter of the law.
Essentially, there is no question that Beapurez set up Colorado Pioneer Action to oust undesirable Republican candidates — like the frequently offensive former state Rep. Gordon Klingenschmitt, a Republican who likes to talk about the evil of sodomy and acts of God — while landing in office more desirable Republicans — like now Sen. Bob Gardner who likes to talk about limited government and creating jobs. That such a group, which exists almost exclusively to influence the outcome of elections, should face disclosure requirements seems like common sense.
Common sense doesn’t apply in campaign finance law, however.
Spencer found Colorado Pioneer Action spent $419,558 to support or oppose specific political candidates, which represented 60 percent of the nonprofit’s spending in 2016. A big chunk of that money, $120,000, went to TV ads supporting Heidi Ganahl, the successful Republican candidate for the University of Colorado Board of Regents.
Adding in half of the overhead expenditures of Colorado Pioneer Action means the charity spent 68 percent of its money to sway voters. The remaining money was donated to other politically involved committees or charities or spent on fundraising. Those spending habits raise the question of what exactly the nonprofit did in the vein of public education or social welfare, the stated purpose of its tax-exempt status, but that is perhaps a better question for the IRS.
Colorado Pioneer Action’s “major purpose” was to support or oppose candidates, Spencer concluded, and thus it should have registered as a political committee subject to campaign donation limits and donation disclosure requirements.
And yet, the threshold for being registered a political committee is extremely high, likely higher even than the threshold of “major purpose.”
Political committees are defined in Colorado law as entities that “have accepted or made contributions or expenditures in excess of $200 to support or oppose the nomination or election of one or more candidates.”
Sounds pretty cut and dry until you look at the definition of “expenditures,” which is money spent “for the purpose of expressly advocating the election or defeat of a candidate.”
And “express advocacy” has been defined by both the U.S. Supreme Court and the Colorado Supreme Court to mean using a handful of magic words: vote for, elect, support, cast your ballot for, Smith for Congress, vote against, defeat, or reject. So when Colorado Pioneer Action said “Heidi Ganahl was right for CU Regent” in a TV ad, it wasn’t expressly advocating for her. In fact both the plaintiff in this case, Matt Arnold, and Spencer agree that Colorado Pioneer Action never engaged in express advocacy.
The U.S. and Colorado supreme courts have ruled that only that most narrow sliver of speech using only those magic words or their synonyms can be regulated. That’s a good ruling for free speech.
Spencer and Arnold get around the magic-words blockade by ruling and arguing that while Colorado Pioneer Action didn’t “make expenditures,” it did “accept contributions” for the major purpose of supporting or opposing candidates.
If Spencer’s ruling doesn’t stand, it will appear that everyone knows Beauprez’s charity was really a political committee, except for the law. If it does stand it’ll be a new way to regulate campaign activity — from the money-raising side instead of the spending side — without regulating speech.
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