Denver Post: Free Speech = "Loopholes"

For the Denver Post, First Amendment protections apparently are "loopholes" to be examined. In an article about free speech campaign finance restrictions, the Post focuses on conservative groups' efforts, while biasing the article in favor of such restrictions in general. (This isn't the first site to notice the - oddity - of the state Democrats becoming concerned about the new campaign finance laws just as the Republicans begin to figure them out. Apparently the game is to keep the rules moving just fast enough to stay ahead of your opponents in understanding them, while retaining the moral high ground of "reform.") The Post has not always been so solicitous of public opinion, especially when it comes to illegal immigration and gay marriage.

Even if government lawyers or state legislators come up with ways to better regulate the flow of money...

No, no assumptions here. In an article about "loopholes," "better regulate" means closing those "loopholes," or further restricting speech.

...it won't be in time to impact the 2006 elections. The contests include an open governor's race and an open seat in the 7th Congressional District, 65 state House races and 17 Senate seats. Republicans could regain a majority in the Senate by taking back just one seat.

How, exactly, is this last more relevant than the Democrats gaining a majority of the state's Congressional delegation through tha open 7th District seat? Or the effect of any number of other electoral outcomes? Apparently, the main issue is the tenuous nature of Democratic control of the State Senate.

In 2002, Colorado voters overwhelmingly passed Amendment 27, which overhauled campaign- finance disclosure rules in an effort to get big money out of politics. The measure limited campaign contributions, encouraged candidates to curb their spending and banned corporate and union contributions to candidates and parties. The unintended effect, say some political observers, has been to encourage interest groups to exploit gray areas in the law and invoke broad constitutional protections such as free speech to continue the activities voters sought to regulate.

Imagine that! People using First Amendment guarantees to safeguard their free political speech.

For instance, the Independence Institute has been accused of running political ads couched as educational material. Critics say the Golden-based think tank should disclose donors who have supported its radio ads about Referendums C and D. The institute says it is merely educating the public.

Apparently, they missed this proclamation by a 501(c)3 in favor of Referenda C and D. This decision has been defended on the grounds that it's a referendum, not a candidate being supported, a distinction that apparently escaped the notice of the Post when writing about the Institute. In fact, the main abuse of system was by Democrats in the 2004 State legislative campaigns:

Colorado Democrats used the loophole last year, a maneuver largely credited with giving Democrats control of both legislative chambers.

That's the extent of the article's mention of 2004. The fact that not all of these activities were exactly, uh, legal seems to have evaded Mesdames Caldwell and Crummy. In fact, the article devotes 78 words to Democratic and union groups, and 328 words to offenses - real or imagined - by conservative or Republican groups.

Cross-Posted at View From a Height.

Loopholes grow in election lawAs more groups win court battles and find ways to skirt campaign-finance rules, some are considering more regulations.By Alicia Caldwell and Karen E. Crummy Denver Post Staff WritersThree years after Colorado voters overwhelmingly passed campaign-finance reforms, political and ideological groups are finding new ways around election-law restrictions. They're winning important battles in the courtroom, and with campaigning already underway for several major 2006 races, these groups are pushing their agendas in ways unforeseen - and largely unregulated. These developments have the Colorado secretary of state's office and key state legislators considering whether the state should pass new regulations. "You can only hold water in your hands so long before it begins to seep through your fingers," said state House Majority Leader Alice Madden, a Boulder Democrat, who said it may be time for the legislature to revisit campaign-finance reform. Independent political groups, whose identities and funding sources are difficult to discern, took advantage of a tax loophole to funnel millions of dollars into Colorado state elections last year. Routing money through these so-called 527 committees is expected to increase in key races next year. Even if government lawyers or state legislators come up with ways to better regulate the flow of money, it won't be in time to impact the 2006 elections. The contests include an open governor's race and an open seat in the 7th Congressional District, 65 state House races and 17 Senate seats. Republicans could regain a majority in the Senate by taking back just one seat. In 2002, Colorado voters overwhelmingly passed Amendment 27, which overhauled campaign- finance disclosure rules in an effort to get big money out of politics. The measure limited campaign contributions, encouraged candidates to curb their spending and banned corporate and union contributions to candidates and parties. The unintended effect, say some political observers, has been to encourage interest groups to exploit gray areas in the law and invoke broad constitutional protections such as free speech to continue the activities voters sought to regulate. For instance, the Independence Institute has been accused of running political ads couched as educational material. Critics say the Golden-based think tank should disclose donors who have supported its radio ads about Referendums C and D. The institute says it is merely educating the public. Last week, a federal judge made a ruling in a similar case that could open the door for hundreds of advocacy groups to engage in politicking without having to file financial disclosures. In a case brought by Colorado Right to Life, a judge declared Colorado's definition of a political committee unconstitutional as applied to the group, which is a nonprofit advocacy corporation. The group had, among other activities, run a radio ad in the 2002 general election comparing the abortion stances of Fourth Congressional District candidates Stan Matsunaka and Marilyn Musgrave, which was broadcast on Denver and Longmont stations. The group also encouraged people to call Matsunaka, a state senator at the time, and ask him to support a bill important to anti-abortion activists. James Bopp, an Indiana lawyer who represented the group, said he believes dozens, if not hundreds, of Colorado groups could seek the same exemption that the federal judge found in the Colorado Right to Life case. "And I hope they do, frankly," Bopp said. "I think it's outrageous that they're subjected to these unconstitutional restrictions." In another case with implications for campaign-finance rules, the secretary of state is looking at whether Republican gubernatorial candidate Marc Holtzman skirted state election laws by appearing in television ads against Referendums C and D. If passed, those measures would allow the state to keep more tax money. The campaign to oppose Referendums C and D is funded in part by a $100,000 donation from Holtzman's father. Critics accuse Holtzman of using his opposition ads as a backdoor way to bolster his campaign for governor and get around $1,000 contribution limits for candidates. And in a recent administrative law decision now being appealed, a judge ruled that members of two Colorado teachers unions could, among other things, walk precincts with a state Senate candidate distributing the candidate's campaign literature. The judge found that the unions' voluntary activities didn't make them an arm of the candidate's campaign, which is prohibited by state laws. The shifting campaign-finance scene in Colorado is in step with the rest of the country, said election-law experts. Many states, including Colorado, are trying to come up with reforms that are faithful to voter intent yet protect free-speech rights. Complicating matters, states have to navigate a separate tier of federal campaign-finance regulations. "It's a mess," said Heather Gerken, an election-law expert at Harvard Law School. "The distinctions are muddied and get sillier and sillier." The uncertainty in Colorado has led the state attorney general and the secretary of state's office to consider whether they need to more clearly define regulations, including a clearer definition of political committees, said Deputy Secretary of State William Hobbs. Pete Maysmith, executive director of Colorado Common Cause, one of the architects of Amendment 27, said the initiative has largely worked. And while he doesn't oppose fine-tuning, he said he would look closely at proposed changes. "There have been moves and there will be moves to turn on the spigot to push big money back into the campaigns," Maysmith said. "We think there's no place for that, and we oppose that." Republican Rep. Keith King, a former House majority leader from Colorado Springs, called Amendment 27 a disaster that needs to be revisited. "The intent was to force more accountability, and what it did was force more money to unaccountable 527s," King said. The boom in so-called 527 committees, named after the applicable section of the tax code, was a result of a 2002 move by Congress to ban "soft money" contributions to national political parties. Soft money is money that is given to a political party but is not given to support a particular candidate. A loophole in the law, however, allows 527 groups to claim tax-exempt status as political organizations while avoiding regulation under state and federal law. That makes it difficult to track their money. Colorado Democrats used the loophole last year, a maneuver largely credited with giving Democrats control of both legislative chambers. Republicans have started to form their own 527 groups. The increase in money flowing through these groups, in combination with newly defined loopholes for ideological and union groups, is set to change Colorado election dynamics in 2006. Staff writer Alicia Caldwell can be reached at 303-820-1930 or acaldwell@denverpost.com. Staff writer Karen E. Crummy can be reached at 303-820-1594 or kcrummy@denverpost.com.