Face The State Staff Editorial
What is illegal coordination under Colorado’s tough campaign finance laws? It all depends on what the meaning of the word “is” is. At least if you sit on the Colorado Supreme Court.
Colorado's Supreme Court JusticesState of Colo.
In its own Bill Clinton moment this month, a majority of the court’s justices resorted to a deeply political and morally bankrupt decision. Specifically, the Court ruled last Monday that the Poudre Education Association and the Colorado Education Association didn’t illegally coordinate with state Sen. Bob Bacon’s 2004 campaign by organizing two door-to-door walking campaigns where its members promoted Bacon’s candidacy and distributed his campaign literature.
In its decision in Rutt v. Poudre Education Association, the court took the rare step of overruling a unanimous Colorado Court of Appeals which had previously — and rationally — held that the two unions had violated state laws prohibiting direct union contributions and expenditures to candidate campaigns. Colorado's constitutional campaign finance rules, adopted by voters in 2002 as Amendment 27, allow unions to only operate political action and small-donor committees, which are generally funded by transfers from members' dues.
The case, brought by Fort Collins residents Wayne Rutt and Paul Marrick, alleged that the PEA and CEA made illegal direct contributions to Bob Bacon’s state Senate campaign by paying union employees to coordinate campaign activities.
While the Supreme Court focused heavily focused on the First Amendment angle of the case, it failed to acknowledge that all campaign finance laws stifle free expression. Instead, the Court held only that the free speech rights of unions trumps the concerns of voters over the disproportional influence of labor unions, which had prompted the spending prohibitions in Amendment 27.
While the court conceded that union leaders were paid to organize and conduct the walk campaigns, such compensation could not be construed as a contribution to Bacon’s campaign because such events constituted “payments for communication solely with members and their families.”
We have to wonder if the court would have had the same sympathy for the unions if, instead of being unions they had been private businesses—traditionally supporters of Republican causes. The court specifically held that such behavior was constitutionally protected under an exemption to the Colorado Constitution which specifically allows membership organizations to communicate with their members concerning political activities. We cannot envision that same sympathy given a similar fact pattern, with a corporation paying an employee to organize coworkers in support of a candidate. Under state campaign finance law, corporations are, like unions, prohibited from making direct contributions to candidates.
The court’s decision focused heavily on the fact that unions are membership organizations while neglecting the fact that “members” were paid to organize the campaign activities.
When Colorado voters approved two ballot efforts over the last decade advertised as vehicles to curb big money in politics, they did so because they believed that money corrupts. The Supreme Court, in its decision, has said that only certain money corrupts.
The impact of this decision will embolden unions—the same organizations that in many cases already forcibly extract dues from members and funnel such money into small donor committees, which in turn, translate into thousands of dollars in anonymous contributions to the state’s Democratic candidates.
In an articulate dissent, Justice Nathan "Ben" Coats, joined by Justice Allison Eid, wrote, "By exempting the union activities in this case from the article's prohibition of expenditures by membership organizations, the majority necessarily gives its blessing to these kinds of partisan campaign efforts by paid union staff, even if those efforts are clearly coordinated with political candidates.”
Scott Gessler, attorney for Rutt and Marrick, best summed up the consequences. “This is a political decision by a political court that will have devastating political consequences in future elections.” While Colorado’s workforce is less than 8 percent unionized, the influence and money of Labor activists will continue to decide elections—certainly not a reality that voters signed up for when the checked “yes” on campaign finance reform.