A new enforcement division at the Colorado Secretary of State’s Office is reviewing campaign finance filings and taking action against possible violations.
It’s a sharp change from a system in prior administrations that required the public to file complaints about suspected violations of state law.
The more aggressive approach is drawing criticism from some observers who question the state’s authority to pursue complaints and whether the law is being fairly applied. So far, the office has filed three complaints.
Secretary of State Jena Griswold, a Democrat, made the shift over the past year and her office filed the first complaint in January. She said the new enforcement approach is allowed under a 2019 law approved by the Democratic-led General Assembly. The new measure was designed to address a successful challenge to the former complaint system, and codified existing rules.
Griswold said she sought the attorney general’s opinion on the new enforcement team to ensure its legality, and the office received money in the budget to create three new positions for the enforcement staff at an annual cost of $217,324.
The reliance on the public to file complaints often resulted in a process that often involved political retribution rather than compliance with the law. And the complaints didn’t always result in sanctions. Of 38 complaints filed in 2018, only two resulted in fines.
“When the 2019 campaign finance enforcement act was passed, it does clearly delineate the ability for the Secretary of State’s Office to enforce,” Griswold said in an interview. “So the secretary, through the elections division, has independent authority to initiate its own investigations of potential campaign finance violations.”
Not everyone agrees with that conclusion, including former Republican Secretary of State Scott Gessler. He’s representing the nonprofit Colorado Stop the Wolf Coalition, which was the subject of the first complaint filed by the office.
“You’ve had six secretaries of state who never thought it was appropriate for the secretary of state to weigh in on these political disputes,” Gessler said. “We think she’s definitely overstepped her bounds.”
First complaint focused on opponents of ballot measure
The initial complaint — first reported in The Unaffiliated, the politics newsletter from The Colorado Sun — says the coalition should be filing as a state issue committee. It cited the donation feature on the group’s website, noting that it appeared to be soliciting money to fight the ballot initiative without filing its contributions or spending.
The nonprofit, organized in early 2019, opposes reintroduction of gray wolves in Colorado, which is the subject of a ballot measure on the November ballot.
“Our organization has never had a major purpose of opposing a ballot issue,” Gessler said. “We’re definitely against forced reintroduction, but that’s not the same thing as a ballot issue.”
An affiliated issue committee, Stop the Wolf PAC, registered in late October as an issue committee to oppose the ballot initiative, and reported no contributions or spending in a report filed in January.
If a complaint is deemed valid by an administrative law judge, a group may be ordered to file contributions and spending and pay fines for failing to file.
In another complaint filed in early March, the state questioned a $5,350 donation in 2019 from the Colorado Democratic Party to Broomfield state Rep. Matt Gray’s leadership fund. The amount is $2,000 over the legal limit. The complaint asks the party to demonstrate it is seeking a return of the excess donation.
A third complaint filed against State House District 7 candidate Bernard Douthit, a Denver Democrat, questioned why no source was listed for a $1,000 contribution in his initial campaign finance report. Douthit later amended his January report to note that a $1,000 contribution came from him. Douthit said he expects the complaint to be dropped, but it remains active.
In an interview, Douthit said the source was missing because of a bug in the online campaign finance filing system.
Meanwhile, Jennifer Bacon, one of Douthit’s opponents in the crowded field for the open legislative seat, lists a $509 in-kind donation labeled “community event,” but doesn’t list who made the contribution. The Secretary of State’s Office hasn’t filed a complaint against Bacon.
“If the secretary of state wants to take a more active role in campaign finance oversight and enforcement, they need to be consistent about when and where it is implemented,” said Douthit, who failed to make the ballot through the party assembly process.
Griswold said the state’s campaign finance software generated the complaints against the state Democratic Party and Douthit. The system includes alerts to notify the legal team of excess contributions and other potential violations.
The complaint against the Stop the Wolf Coalition came after the new legal staff read about the group in the news, Griswold said. “They’re enforcing what needs to be enforced, and if there’s a reason to bring an independent complaint, they have their ears open and have the ability to do so,” she added
The enforcement unit operates independently of the rest of the office and makes decisions about what complaints to file without consulting Griswold or others working on campaign finance. “I don’t know their litigation strategy or their enforcement decisions,” she said.
But Gessler questioned the source of the complaint. “What we think happened is that they were tipped off by political allies” who support wolf reintroduction, he said.
The majority of complaints still originate from public
Gessler said Stop the Wolf Coalition may consider challenging the secretary of state’s ability to bring such complaints on its own. “My client is considering all options,” he said. “At this stage it would be premature. The secretary is still deciding whether to go forward” on the complaint.
In the past, when the office relied on the public to bring complaints, they were often generated by political opponents.
The public may continue to make complaints in the current system and a dozen of the 15 filed so far this year were lodged by people outside the office.
But Gessler questions how a unit in the office to file a complaint jibes with the state Constitution. A constitutional amendment to the campaign finance law approved by voters in 2002 requires that a “person” file complaints about potential violations.
Christopher Jackson, a Denver appellate lawyer who has worked in campaign finance law, said his reading of the Constitution would include the Secretary of State’s Office among those who could file complaints.
“It’s part of the big changes in campaign finance over the last couple of years,” Jackson said. “It looks like the secretary of state is taking a more active role in making sure people comply.”
Gessler countered that court rulings don’t include government bodies in the definition of a person. “That word meant any person, but not the office acting in their official capacity as government,” he said.
Griswold, a lawyer who worked on voting rights for President Barack Obama’s 2012 campaign, said she believes the new enforcement process would withstand a legal challenge.
“My goal is to prevent corruption in this political system by ensuring campaign finance rules and laws are followed and enforced,” she said. “It’s time that more elected officials decide to stand up against special interests and stand for everyday people.”