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Nicolais: Hell might be freezing over, but it’s time to address campaign finance laws

Decades of campaign finance laws to get money out of politics have only made our system demonstrably worse – so maybe it's time to try something different

My jaw dropped and I checked to see if frost had begun penetrating the floor from the obvious freezing of Hell. Progress Now’s Ian Silverii and I had just agreed in almost lockstep on campaign finance.

Silverii is the Bizzaro World version of me. I’m conservative; he’s liberal. He’s thin and lean, I’m not as much. I write for The Colorado Sun, he writes for … another paper. I thought the only things we had in common were an addiction to politics and an ability to marry up.

Mario Nicolais

Then I woke up to this Tweet from him: “… American campaign finance laws are the absolute dumbest, worst constructed, and cross-purpose pieces of public policy in existence. They actively make the problem they purport to fix demonstrably worse in every way.”

Specifically, Silverii lamented the current system that forces money away from candidates and parties and toward outside interest groups. This is the “shawdowy dark money” — a phrase that always me giggle due to its over-the-top sinister insinuations — so frequently fretted over by pundits and public officials like so many Chicken Littles.

Silverii’s comments stood out because he actively admitted the failure of well-intentioned laws and proposed a return to a prior system that would put money and power back in the hands of political parties.

That is a stunning position for one of the state’s most prominent Democratic operatives to take publicly. His has been, and apparently according to Democratic presidential candidates still is, the party of “get money out of politics.” 

READ: Colorado Sun opinion columnists.

But maybe those White House hopefuls should take a beat and listen because Silverii is right.

Almost a decade ago, the late, great former Colorado Senate Majority Leader Ken Gordon and I did a series of debates about this issue. Gordon had a profound effect on my approach to politics because of his kind, civilized demeanor, but we vehemently disagreed on this issue. 

Gordon had been a prominent advocate for more legislation to “fix” money in politics. As a then-young campaign finance attorney, I argued that what he wanted wasn’t possible under the First Amendment; money will always find its way into politics. Like it or not, the Supreme Court has continuously found spending on political communications is constitutionally protected free speech.

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Instead, I argued the best approach would be counter-intuitive. Lift the restrictions that had been placed on contributions to candidates and parties. Allow the money to flow freely, but with the caveat that transparency needed to be paramount.

As I noted at the time, Colorado’s laughably low candidate contribution limits do more than force candidates to spend inordinate amounts of time dialing for dollars. Unless they happen to be so independently wealthy they can self-fund their campaign, candidates entirely lose control to outside interest groups engaged in elections.

Getting crushed a few years later in a primary election for Colorado State Senate District 22, a seat coincidentally now held by Silverii’s wife, due to an avalanche of outside spending cemented my opinion.

Earlier this year at a panel hosted by Colorado Secretary of State Jena Griswold, I argued for the full repeal of candidate contribution limits. Nothing would combat money flowing to outside interest groups as quickly or effectively as allowing candidates to acquire the means to fight back. It’s the elephant in the room every political operative in the state, including Silverii, understands.

But increased contributions must be counter-balanced by increased transparency. It isn’t the amount of money that gets spent — there will always be torrents of it — but who is spending it that matters.

Interestingly, I’ve found that’s a position with more support among conservative campaign finance attorneys than I realized. In the milieu of constitutional conservatives, contribution limits pose a greater affront to the Constitution than transparency. 

Silverii and I have spent a combined decades — sadly me more than him — operating at opposite ends within the current campaign finance system, helping outside interest groups find loopholes to funnel their money. 

Finding us championing the same position in unison should be cause to either check with the Devil about the weather below or begin to realize there is a significant problem that desperately needs to be addressed.


Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care, and public policy. Follow him on Twitter: @MarioNicolaiEsq


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