Colorado voters passed Amendment 41 hoping to combat corruption. A little over a decade later, political operatives have weaponized the law by using complaints to inflict electoral damage.
Headed into his re-election efforts last year, former Secretary of State Wayne Williams faced a strong challenge from a hard-charging opponent.
Given the toxic electoral environment every Republican on the ballot faced, Williams already had an uphill climb despite the perceived advantages that come with incumbency. But on Oct. 22 — just over two weeks before Election Day — Williams’ incumbency became a liability.
As an elected official holding public office, Williams fell squarely within the purview of Amendment 41, and anyone wanting to file a complaint against him.
Enacted by ballot measure in 2006, Amendment 41 has three primary purposes: restricting gifts public officers may receive, banning state office holders from lobbying for two years after leaving office, and creating Colorado’s independent ethics commission, the IEC.
It took a few years, some statutory gymnastics, and several IEC rulings before the panic subsided. There have continued to be bumps along the way and gripes about how the IEC operated, but overall most public officials learned how to work within the law’s framework. While Rod Blagojevich may reside in Colorado, none of our elected officials have had to bunk with him.
Fast-forward more than a decade, and suddenly Williams faced an ethics complaint for using discretionary funds to pay for clothes and continuing education credits.
In his formal response, Williams pointed out that most of the allegations fell well outside the statute of limitations and that it is a customary practice for the Secretary of State’s Office to pay for continuing education and licensure requirements, not just for the secretary himself, but most staff.
Informally, Williams’ representatives bristled at the “political stunt timed for the election.”
That quote hits the nail on the head, particularly given the untimely nature of most of the claims. I’ve known Williams for more than 15 years and can say that he is a pillar of integrity and honesty.
His collegial manner and willingness to challenge voter fraud claims by President Trump made him popular and respected on both sides of the aisle under the Capitol dome. It would be hard to find anyone with a bad word to utter about Williams, much less question his principles or integrity.
Nonetheless, Williams drew the complaint, and the likely goal of the complaint, negative press coverage just as the election homestretch began. Adding injury to insult, Williams will now have to personally cover the costs of his defense, regardless of the outcome.
After vanquishing Williams at the polls, current Secretary of State Jena Griswold’s office has reversed prior policy and declined to pay for the attorney general to represent Williams.
While putatively a result of the inordinate cost of defending former Secretary of State Scott Gessler in a complaint that went all the way to the U.S. Supreme Court, the decision seems short-sighted; the chilling effect on potential political aspirants alone may limit the quality of candidates presented to Coloradans in the future.
Of course, Williams isn’t alone in the need to defend himself from the new vogue method of political attack. Former Gov. John Hickenlooper faces a pair of conjoined complaints filed just as he explores a presidential bid. Presumably he is footing the bill for Democratic legal giant Mark Grueskin to defend him.
I have spent more than a decade arguing campaign finance complaints — yesterday’s version of political lawfare. So the ill effects of this new rash of IEC complaints seem quite evident to me. Partisans will become more divided and bitter, while faith in in our public officials will drop.
In the end, a law meant to bolster confidence in Colorado’s public servants will instead be used to undermine it. Maybe that’s just the destructive nature of politics in today’s day and age.
Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, healthcare and public policy. Follow him on Twitter: @MarioNicolaiEsq
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