By Matt Masich, STATE BILL COLORADO
DENVER — Is Amendment 54 a valid way to fight pay-to-play politics or an unconstitutionally overbroad limit on political speech? The state’s highest court will hear oral arguments tomorrow in a case that will resolve that controversy.
Passed into law as a ballot initiative last year, Amendment 54 was widely seen as a move to curtail political contributions from labor unions. The amendment forbids recipients of large sole-source, or “no-bid,” government contracts from contributing to any political campaign in Colorado, except campaigns for federal office. The measure also forbids contract-holders’ immediate family members from contributing on their behalf.
Critics said the amendment’s donation ban violates First Amendment free speech rights. They also said the ban applies to more people in more situations than is warranted by any actual corruption.
Two groups of plaintiffs filed a lawsuit against the state challenging the amendment shortly after it took effect in January. One group is composed of labor unions, and the other includes nonprofit board members. They all claimed the amendment unjustly prevents them from making political donations.
The case appeared in Denver District Court. In June, Judge Catherine Lemon issued an injunction stopping Amendment 54 from taking effect until an appellate court could rule on its constitutionality. Lemon gave sharp criticism of the amendment in her findings of fact.
“Amendment 54 is so overbroad that it has substantially slipped to the moorings of its justification,” Lemon wrote.
The goal of preventing government corruption is legitimate, she said, but the amendment’s scope exceeds what would be necessary to accomplish that. For instance, the amendment bans applicable sole-source contract holders from donating not just to candidates for offices with authority over their contracts, but to any candidate at any level anywhere in Colorado.
“The connection between the breadth of this ban and its legitimate objective is not merely insufficiently close, it is indiscernible,” Lemon wrote.
In her interpretation, she found the amendment’s language about immediate family members of sole-source contract holders likely forbids them from making political contributions.
Supreme Court Takes Case
The state appealed Lemon’s injunction, and the Colorado Supreme Court agreed to hear the case. The high court considers it so important to resolve quickly that it fast-tracked the case, shortening the time the attorneys have to file briefs.
At oral arguments on Dec. 3, Maurie Knaizer of the attorney general’s office will represent the state. Bob Liechty of Cross & Liechty filed an amicus brief supporting the state’s position that the amendment is constitutional. Mark Grueskin of Isaacson Rosenbaum will argue for the union plaintiffs. Former Supreme Court Justice Jean Dubofsky will argue for the nonprofit plaintiffs.
Doug Friednash, who is working with Dubofsky representing the nonprofit plaintiffs, said Amendment 54 would have “a substantial impact” on the 2010 campaign season if the Supreme Court were to uphold it.
“[Nonprofit board members] are really forced to decide if they want to serve on boards, generally without pay, to serve the community. If so, are they willing to give up their political speech and association rights? It’s an unfortunate choice that they will be forced to make if this law is upheld,” Friednash said.
Former University of Denver Chancellor Daniel Ritchie, one of the plaintiffs Friednash represents, is the unpaid chief executive officer of the Denver Center for the Performing Arts, which has a sole-source contract of more than $100,000 with the city. Under the contribution ban, he would be unable to give money to state political campaigns.
Another plaintiff is Denver City Councilman Charlie Brown. Because he sits on the board of Visit Denver, which also has a large sole-source contract with the city, Brown would be barred from making contributions to his own self-funded campaign.
Liechty, who is arguing on behalf of Clean Government Colorado to get the amendment reinstated, said he agrees that it might be unconstitutional in situations such as Brown’s.
“We’ve argued you can make an exception in the amendment so that he is allowed to fund his own campaign. We don’t have a problem with that,” Liechty said.
But Dubofsky said the amendment is too flawed to fix.
“I am hoping the Colorado Supreme Court will say there are just too many problems with this, and we can’t construe it and construe it and construe it in ways that will make it constitutional,” Dubofsky said.
Liechty also disputes the plaintiffs’ assertion that banning contract holders from contributing to all state campaigns is excessively broad. The amendment was intended to be that broad in scope to prevent an East Coast practice called “wheeling,” in which money is given to one candidate who passes it to another to obscure the fact that influence is being bought.
“They just really overreached,” Dubofsky said. “The whole notion that this is a problem in this state is difficult to comprehend. We’ve never had a problem with this.”