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In final push, Democrats rush major changes to elections and campaign finance disclosure in Colorado

The package of bills may benefit Democrats most, critics argue, and a loophole may limit the effort to improve dark money disclosure

Voters drop off their ballots at the Denver Election Commission office in Denver on Nov. 6, 2018. (Eric Lubbers, The Colorado Sun)
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Better disclosure for campaign donations, automatic voter registration, longer hours to vote and more poll locations are a handful of the last-minute changes Democratic lawmakers want to make to Colorado election laws.

The initiatives are designed to increase transparency surrounding money in politics and boost participating in elections and take effect in time for the 2020 election. But one provision allows a loophole in disclosure and critics complain that other parts of the bills unfairly help the Democratic Party.

The four bills making these changes emerged late in the legislative session and now are moving toward approval with three weeks left in the legislative session. But the road isn’t without bumps.

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House Bill 1278 is drawing the most fire from county clerks around the state. They say more voting locations and longer poll hours would require more workers and more money than is included in the bill.

And Republicans are expected to balk at some of the requirements in another measure, House Bill 1318, which requires nonprofits involved in politics to disclose some of their donors.

Democratic Secretary of State Jena Griswold ran in 2018 on a pledge to overhaul campaign finance laws, improve enforcement and increase voter registration and turnout, and the legislation is designed to address those areas.

“Too often, Coloradans feel that their politicians are beholden to big money special interests, and that the rich and powerful are allowed to side-step the rules,” Griswold said in a statement. “Right now in Colorado, a $50 contribution to a candidate is more transparent than a $50,000 contribution to Colorado’s version of a SuperPAC.”

Earlier this session, Gov. Jared Polis signed a measure requiring more disclosure on all campaign literature that mentions candidates and closes a window in which groups didn’t have to disclose spending on advertising. That’s a measure thwarted in the past by Republicans who held a majority in the state Senate.

Here’s a look at the issues addressed in the election bills being considered in the final weeks of the legislative session.

More disclosure of dark money — with a possible loophole

Dark money played a key role in Colorado’s 2018 elections with thousands in donations flowing to super PACs from nonprofits and other entities without disclosure of the money’s original source.

House Bill 1318 would require labor unions or nonprofits groups that donate $10,000 or more to an independent expenditure committee — better known as a super PAC — to disclose the names of individuals who donate for political purposes. For businesses that make the same size contribution, the legislation would require the super PAC to list their corporate ownership.

But an exception in the legislation would allow donors to labor unions or nonprofit groups to avoid public disclosure, a measure that could significantly weaken the new disclosure rules if widely used.

The donor must affirm “reasonable probability” that they will face harm or threat, and it’s subject to review by the secretary of state’s office. But if allowed, the donor’s name will remain confidential.

A Griswold spokeswoman said it resembles laws in other jurisdictions and cited a 1950s Supreme Court ruling largely unrelated to campaign finance that the NAACP in Alabama didn’t have to release its membership rolls.

“We would never want people to feel that they are risking their safety by participating in our democracy,” spokeswoman Serena Woods wrote in an email.

In Colorado, nonprofits and unions gave millions to organizations that influenced the 2018 election without disclosing donors’ names.

The national nonprofit Sixteen Thirty Fund spent nearly $11 million on Colorado campaigns in 2018, including $2.5 million to a super PAC supporting Democratic state Senate candidates.

The nonprofit’s tax return for 2017 indicates it received three donations — $37 million, $20.1 million and nearly $9.3 million — that accounted for about 84 percent of the organization’s revenue, according to new documents obtained by The Colorado Sun. Other new donations now coming into view show labor unions gave $2.6 million in 2017 and 2018, with half coming from the National Education Association, according to federal union disclosures.

The group doesn’t have to file a tax return for 2018 until November, a year after the election.

On the Republican side, the nonprofit Colorado Economic Leadership Fund donated $1.5 million to a super PAC supporting Republican state Senate candidates. The group, affiliated with business organization Colorado Concern, also spent at least $374,000 on mailers, TV ads and more to support those GOP Senate candidates.

The leadership fund doesn’t need to disclose its donors. But Noble Energy gave the group $1.26 million, according to a new report listing the oil and gas company’s political activity in 2018.

Ryan Call, a former Republican Party chairman and an election lawyer, said he’s not impressed with the legislation’s language on dark money. “I understand the idea, but the bill as its crafted seems to target business corporations and doesn’t do enough to rope in labor unions and other left-leaning organizations,” Call said.

But Chris Jackson, a Democratic lawyer who follows campaign finance work, offered a different view. “It’s relatively easy for someone to hide who their donors are,” Jackson said. “This is to make the hiding more difficult, so people have to disclose a little bit more.”

Colorado Secretary of State Jena Griswold, center, attended a rally at the state Capitol on April 2, 2019. The Democrat is pushing for election changes in the final weeks of the legislative session. (Jesse Paul, The Colorado Sun)

Other provisions limit coordination with super PACs

Another component of HB-1318 would require companies to disclose on advertisements and campaign literature that they paid for the material. All digital ads also would carry disclosure of the committee or company that paid for them.

But individual companies still wouldn’t need to file reports about how much they spent because their primary purpose isn’t political.

For example, Noble Energy reported spending $2.26 million on “referendum activities” in 2018 that didn’t get reported to the secretary of state’s office. The spending is listed on an annual report the company files for its shareholders, though it isn’t required. Noble Energy’s spending included TV ads opposing Proposition 112, the failed effort to create large setbacks for oil and gas development.

Also under the bill, a super PAC — which can raise and spend unlimited amounts — would not be able to get support from a person who later becomes a candidate. If it did, it would convert to a traditional political committee subject to strict campaign limits.

The move came after Walker Stapleton raised money for Better Colorado Now before entering the governor’s contest, in which he was supported by the super PAC.

Call said campaign finance provisions allow fundraising for such committees when someone isn’t a declared candidate. “That seems a dramatic departure from the case law governing the nature of independent expenditures,” he said.

Ban on foreign donations extended to political committees

The same legislation also would ban foreign donations to state-level super PACs, political and issue committees. Such contributions to candidates already were prohibited.

Nearly $31,000 in campaign contributions to candidates, committees and political parties came from international addresses during the 2018 election cycle, according to a Sun analysis.

A single contribution accounted for most of that money: $25,000 from Vancouver, British Columbia-based Lush Cosmetics to Colorado Rising for Health and Safety, which supported Proposition 112, the setback question.

The proposed bill would make an exception for international businesses authorized to do work in Colorado. Lush, which has three retail shops in the state, has been registered as a business in Colorado since 2004.

It’s more difficult to identify whether individuals are foreign nationals or U.S. citizens living abroad. For example, Griswold, the secretary of state who oversees elections and campaign finance, received 20-some donations totaling more than $1,250 from people who listed international addresses. Her campaign said the contributions were made online and the campaign contacted donors to verify citizenship.

A new process outlined for campaign finance complaints

Senate Bill 232 would put into law the system adopted in 2018 by former Secretary of State Wayne Williams that features an initial review of complaints, including allowing campaigns accused the opportunity to fix their reports. The rules he put in place came after a court decision overturned the old system that sent complaints directly to an administrative law judge.

Now, complaints are either dismissed or remedied in the initial review, or they are investigated further and referred to a hearing officer for consideration or dismissed.

The legislation also would allow the secretary of state’s office to audit campaign finance filings and ask committees to correct errors or pursue complaints for potential violations. In the past, the office didn’t pursue errors or violations unless they received formal complaints, often saying the law was unclear on their authority.

And it would allow the office to refer overdue fines to the state controller for collection. The Sun reported last fall that more than $2.3 million in campaign finance fines went uncollected, in part because of lax enforcement.

Denver voters cast ballots on Election Day in 2018. (Jesse Paul, The Colorado Sun)

Other efforts address voter registration and poll location hours

When it comes to elections, Democrats are recommending several provisions in House Bill 1278 to increase registration and turnout.

The bill is the most significant change to election law since the state adopted all mail-in balloting in 2013, which occurred the last time Democrats held both houses of the General Assembly.

About 30 county clerks testified against the omnibus elections bill at the committee level before Democrats approved it on a party-line vote. The legislation is designed to make it easier for young voters and minorities to vote — two traditional Democratic constituencies.

Among the changes proposed in the bill:

  • Keep voting centers open from 6 a.m. to 8 p.m. on Election Day and the day before, as well as increasing weekend hours the preceding weekend. Now, Election Day hours are 7 a.m. to 7 p.m., while clerks set the hours the day before.
  • Add poll locations on college campuses and in neighborhoods with high proportions of minorities, as well as adding ballot drop boxes and vote centers for larger counties.
  • Increase the number of petition signatures it would take for minor party or unaffiliated candidates to qualify for the ballot in congressional, state-level and legislative races.
  • Allow 17-year-olds to vote in primary elections if they’ll be eligible to vote by the general election.

While advocates for the legislation cited long lines on Election Day at some vote centers, county clerks said improvements to software to check voter registration information would do more to reduce waiting times. Several noted the dearth of people voting in person on Election Day, which reached about 3.5 percent of the 2.6 million voters in 2018.

Others criticized the additional costs required to hire extra staff to comply with the changes. “This bill does not increase the state reimbursement to counties,” said Denver City Clerk Debra Johnson. “This bill would cost Denver over $950,000. Denver cannot support any bill without some reimbursement.”

Rep. Susan Lontine, D-Denver, amended the measure to adjust formulas for vote centers and include reimbursement to counties for new equipment, among other things. “Change is hard, but we still have issues that we need to address, and one of them is the wait lines,” she said.

Meanwhile, Senate Bill 235 — which won approval in committee Wednesday on a party-line vote — would expand the state’s automatic voter registration system.

Under the proposal, any eligible Coloradan who gets a driver’s license or identification card, or who registers for Medicaid would automatically be registered to vote. The county clerk would send them a notice of their registration and allow 20-days for the person to opt out. Now, when people get a driver’s license they are asked on a form if they wish to opt out of voter registration.

“This bill to expand automatic voter registration will increase eligible citizens’ access to registering to vote, and makes sure our government is truly of the people and by the people,” Griswold said in a statement.

Colorado had the second highest voter turnout in the nation in 2018.

Sen. Jerry Sonnenberg, R-Sterling, questioned why only people applying for Medicaid, a health care program for low-income people, are added instead of those on property or income tax rolls.

“It looks to me like you’re targeting voters,” he said. “You’re not actually trying to register all the voters. You’re picking certain groups.”

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