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Independence Institute cert. petition in campaign finance case:

The Independence Institute, where I work, is a think tank that speaks on a wide variety of issues. In 2005, we produced extensive research and public information about Colorado referenda C and D. (C was the largest tax increase in state history, and D was a debt increase. C passed and D was defeated.) The Institute was harassed by a complaint filed by one of the proponents, which automatically triggered an administrative hearing under Colorado's very restrictive campaign finance laws. The Independence Institute ultimately prevailed, but only at the cost of a major distraction of time and money shortly before what turned out to be a close election. The Institute for Justice (based in D.C.) has filed a First and Fourteenth Amendment challenge to the Colorado law. The questions presented are:

1. Whether the First and Fourteenth Amendments forbid Colorado from imposing registration, administrative, and continuous reporting regulations on policy organizations that comment on state ballot measures but do not have the support or opposition of such measures as their central major purpose.

2. Whether Colorado's disclosure requirements for donors to ballot measure campaigns in which there is no chance of quid pro quo corruption violate the right to engage in anonymous speech and association.
The IJ argues that the Colorado Court of Appeals ruling regarding both items are contrary to the U.S. Supreme Court's precedents. The cert. petition is here, and case background is here. The brief of the Colorado Secretary of State is due October 2.

first history:
2. Whether Colorado's disclosure requirements for donors to ballot measure campaigns in which there is no chance of quid pro quo corruption violate the right to engage in anonymous speech and association.

I disagree with this question. I don't understand why donors for ballot measures should enjoy anonymity. While a quid pro quo relationship may not exist, donors may beneft from the passage of a ballot measure indirectly. Many initiatives in California, for example, are placed on the ballot by wealthy individuals or corporations that have a vested interest in the outcome, but are not involved necessarily in a quid pro quo relationship with someone else.

The November 2008 election featured five initiatives that were pet projects of billionaires--Peter and John_Sperling, T. Boone Pickens, Henry T. Nicholas III (2 initiatives) and George Soros. In the case of Pickens, he underwrote the entire campaign, and stood to benefit from nearly $5 billion in public subsidies if it passed. Given the fact the initiative failed, I think it was a good thing that his involvement was public knowledge. However, under the questions posed, the voters would never know who was contributing or sponsoring the initiative.

Contribution disclosure will be required as long as there are attempts to manipulate what was originally designed as a check on the legislature, but is now a tool of special interests. It is usually far past the election when the government checks the validity of contributors, depriving the the voters of necessary information.

Private organizations (whether businesses, private citizens or non-profts) are seeking to use a public, governmental process (elections) to further private policy choices. That's fine, but they should be subject to public scrutiny, including those who sign petitions and contribute funds. How do we know if fraud was missed by election officials if the petitions were not public? Corrupt election officials are not unknown. Nominating petitions for local government are frequently challenged by opponents. If the names remain secret the public has no idea if corruption has taken place.
9.22.2009 8:56pm
ChrisTS (mail):
I have nothing to offer per the thrust of the post. However, I am deeply impressed that Coloradians (?) voted for a tax increase and not for a debt increase.

Of course, this is not precisely the inverse of 'we want lots of stuff, but we don't wnat to pay for it,' but it is impressively mature.
9.23.2009 8:55pm

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