Two Republican candidates have filed a federal lawsuit seeking to unwind Colorado’s 20-year-old campaign donation limits.
Greg Lopez, who is running for governor, and state Rep. Rod Pelton, of Cheyenne Wells, who is running for state Senate, along with former Colorado Republican Party Chairman Steve House are plaintiffs in the lawsuit against the Secretary of State’s Office. They are backed in the case by lawyers for two conservative nonprofits.
They’re seeking a preliminary injunction to prohibit the state from enforcing candidate donation limits in the 2022 election. A hearing on the injunction is scheduled for 10 a.m. Thursday.
Lopez, Pelton and House are represented by lawyers from conservative Advance Colorado and the national Institute for Free Speech, which is nonpartisan. Neither nonprofit discloses their donors.
The Secretary of State’s Office is fighting the lawsuit.
“The people of Colorado have made clear time and again that they do not want this, having repeatedly enacted and reenacted contribution limits both through popular initiative and through the legislative process,” said a brief filed by the Colorado Attorney General’s Office, which is representing Secretary of State Jena Griswold, a Democrat, in the case. “This would be a massive disruption to the status quo that has prevailed in Colorado for the last half-century.”
Nearly 67% of Colorado voters approved Initiative 27 in 2002, which limited how much money individual donors could give to campaigns with increases allowed for inflation. This year, individual donors may give a maximum of $400 to state legislative candidates and $1,250 to candidates running to be governor, attorney general, secretary of state or treasurer.
The Republicans’ federal lawsuit argues the limits are antiquated and far too low.
“Much has changed since 2002, when Colorado adopted its current contribution-limits scheme,” the lawsuit begins. “America has seen three new Presidents. Eminem, Ashanti and Nelly no longer rule the pop charts. Gasoline no longer costs $1.14 per gallon. Smartphones were invented and became ubiquitous. But Colorado has clung to already unconstitutionally low candidate-contribution limits.”
Advance Colorado attorney Dan Burrows cited the more than $23 million that Democratic Gov. Jared Polis spent on his 2018 campaign.
“The end result is that instead of opening up office for people who have small but passionate grassroots support it limits office to the independently wealthy,” Burrows said. “It has empowered self-funders. Donations that used to go to candidates, over which the candidates had control, have instead gone to independent expenditures.”
Common Cause Colorado and the Campaign Legal Center are also fighting the lawsuit. Both groups are nonprofits, which means they aren’t required to disclose their donors.
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Cameron Hill, associate director of Colorado Common Cause, said ditching campaign contribution limits in Colorado at this point would create “a toxic, Wild West scenario.”
“It’s an attempt to change the rules when we’re already in the middle of the game,” Hill said. “They want the rules to change despite the fact they’ve all gone through races with all these rules in place. One of them has been successful twice.”
Hill was referencing Pelton, who won election and then reelection to his Eastern Plains House seat under the current limits. Lopez ran unsuccessfully for the Republican gubernatorial nomination in 2018. And House spent about $110,000 on his unsuccessful 2020 campaign to represent the 6th Congressional District, where individual donors are governed by federal law and were limited to a maximum of $5,600. House spent nearly $264,000 on a failed 2014 gubernatorial bid.
The lawsuit claims Colorado’s donation limits violate the First Amendment by limiting donors’ freedom of speech. It also cites a provision of Colorado’s law allowing candidates who agree to voluntarily limit their spending to raise donations at double the limits.
That’s a rarely used aspect of Colorado’s campaign finance law. Republican gubernatorial candidate Heidi Ganahl initially agreed to the limits, but then used a provision in the policy to back out of the pledge once another candidate entered the race.
Ganahl’s pledge reversal on Jan. 31 came just three days after the federal lawsuit was filed by Lopez, Pelton and House. And that reversal decision is cited in the motion seeking to immediately overturn the limits, which was filed on Feb. 7.
“Equally bad, Colorado punishes Mr. Lopez and Mr. Pelton when they refuse to limit their expenditures, and thus their speech, by doubling the contribution limits for their opponents,” that motion said. “The government’s interest in combating actual or apparent corruption cannot justify such different contribution limits.”
Chris Jackson, a Colorado lawyer experienced in campaign finance statutes, noted that Colorado has low contribution limits when compared to other states.
“The Supreme Court has in the past struck down limits in other states for being very low,” he said. “There’s also the issue that the Supreme Court has moved much closer to the right.”
The U.S. Supreme Court in 2006 overturned Vermont’s campaign donation limits, which were lower than Colorado’s. An OpenSecrets analysis of campaign limits in Alaska found that raising limits benefited incumbents more than challengers.
Burrows said the goal isn’t to get rid of candidate donation limits entirely. “Colorado’s limits are just untenable as it is right now,” he said.
The Colorado case is before Senior U.S. District Court Judge John Kane.
This story was updated at 11:10 a.m. on Feb. 25 to correct the characterization of the Institute for Free Speech.