Last week, Administrative Law Judge Robert Spencer ruled that Clear the Bench Colorado, a group dedicated to ousting justices of the Colorado Supreme Court in the November general election, must register with the Colorado Secretary of State as a political committee. The main effect of the ruling is that Clear the Bench will be subject to the same contribution limit -- $525 per donor per cycle -- as every other political committee advocating for or against a candidate in Colorado. That's because the ruling confirmed that judges are considered candidates under Amendment 27. The decision also means that Clear the Bench, which had been filing only quarterly reports, will now have to file reports on the more frequent schedule applicable to active political committees, providing much-needed transparency in a closely watched election.
At Colorado Ethics Watch, we are proud to have filed and tried the case that led to Judge Spencer's decision -- with invaluable assistance from Aaron Goldhamer of Sherman & Howard, who provided us with pro bono legal help. But the real winners here are the people of Colorado, because as a result of this ruling, judges and justices will be able to decide cases without having to wonder whether their decision will cause a handful of wealthy individuals or businesses to fund a campaign to unseat them. Increasingly, states with retention election systems have fallen victim to the same sort of top-dollar negative judicial campaigns that traditionally have been associated only with states where judicial candidates face off against one another to win office. Thanks to the foresight of Colorado voters who in 2002 specifically included justices and judges in retention elections as "candidates" for campaign finance purposes, Clear the Bench won't be able to add Colorado to that list.
Following the decision, Clear the Bench predictably attacked the judge who ruled against them. Clear the Bench also argued that the decision somehow empowers large donors to influence the process, apparently because the sponsors of knowyourjudge.com don't have to register as a political committee because they aren't advocating for or against specific judicial candidates. Of course, groups that don't target specific candidates were not subject to political committee rules even before last week's ruling. Colorado regulates committees that support or oppose specific candidates for good reason -- to ensure the money spent to influence an election does not carry over into influence on an elected official when in office.
Particularly ironic is Clear the Bench Director Matt Arnold's post-decision criticism that groups can avoid political committee regulation simply by avoiding so-called "magic words" like "vote yes" or "vote no." He seems to be arguing in favor of eliminating the "magic words" test, an argument Ethics Watch has been making for years. In fact, Ethics Watch is currently challenging a decision in favor of the 527 group Senate Majority Fund that allowed the group to avoid regulation by -- as Arnold puts it -- "electioneering without using the 'magic words'." He might want to talk to his attorney about that one, since Clear the Bench's attorney and the Senate Majority Fund's attorney are one and the same -- Scott Gessler.
The bottom line is is that judicial elections will now be governed by the same laws that apply to all other candidate elections in Colorado, and Colorado will be able to keep big money out of judicial elections for the foreseeable future.
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