Opinion: Dark money and Boulder’s campaign finance reform

The 2017 election was a wake-up call for citizens who thought that Boulder’s campaign finance reform laws would keep our elections open, transparent and not subject to excessive spending. These laws were put in place by a citizen initiative passed by the voters in 1999. They limit contributions to candidates’ official committees as well as to “unofficial candidate committees” (organized by third parties) to $100 per person, and provide matching city funds for candidates up to $10,000 if they abide by a $20,000 total limit.

But this year, spending was dominated by “dark money,” paying for mailers, ads, phone banks, etc., in the name of Open Boulder and possibly others. These folks tried to avoid the city’s regulations by carefully avoiding the magic words of “vote for,” “vote against” and synonyms of these. These magic words are what are called “express advocacy” in federal case law, and Boulder’s laws regulate “expressly advocating.” So instead, Open Boulder used words like “endorse,” “vote to make Boulder,” “candidate,” etc.

To be clear, Boulder’s laws specifically allow individuals to spend as much as they want supporting candidates, so long as they do so in their own name, do not coordinate with others and disclose their expenditures. So the “dark money” funders could have done their campaigning in the light, and voters could have then evaluated what was being said by knowing who was saying it. But instead they operated behind the scenes, and Open Boulder belied its name by being their vehicle.

The rejected citizen complaints about Open Boulder’s activities, citing the 2012 Colorado Supreme Court decision in Colorado Ethics Watch v. Senate Majority Fund, which only allows limitation of campaign expenditures that use the magic words. The city staff’s position was that Boulder’s laws’ “expressly advocate” has the same meaning as “express advocacy” in federal law. But no hearing was held. There is an argument that the Colorado Ethics Watch case doesn’t apply to Boulder’s laws because the context for their passage was different. It might be a tough sell, but the city staff’s preemptory rejection of the complaint prejudged that outcome.

The city was put on notice more than once that this huge amount of money was going to be spent in this year’s campaigning. Given that the citizens initiated and passed the campaign finance laws, some serious thought should have been given as to how to address such a threat. Interestingly, in the Colorado Ethics Watch case, the regulation of “electioneering communications,” like what Open Boulder did, was discussed. A full reading of the case and a few phone calls, and the city could have discovered that Denver was already in the process of passing laws to address this exact situation, having had its own problems with dark money. The Boulder City Council then could have passed our own (and possibly stronger) version, perhaps preempting these “October surprises.”

The complaints filed against PLAN-Boulder County and the Sierra Club were based on 2016 additions to the Boulder code that state: “Unofficial candidate committees cannot be combined with an issue committee” and vice versa. But “combined” was never defined. For both organizations, their committees are separate legal entities with separate accounting. If this law had been drafted properly and identified these items as required to keep such committees separate, then this would have never come up.

The quote from a city staff member in the Daily Camera that triggered these complaints was apparently based on some other interpretation of “combined.” These quotes prejudiced (in both senses of the word) the situation, in defiance of another 2016 addition to the code that forbids city staff from making public the results of any “inquiry or investigation” prior to a hearing. But this code change also forbid the staff from disclosing why these complaints were then dismissed, since no hearing was held. So the inadequate legal drafting left the public in the dark.

After an electioneering complaint against the Chamber of Commerce in 2015, the city eliminated all campaign finance restrictions on city contractors. So contractors can now participate even in council elections, although the case law did not require eliminating this restriction. The assumption was that the city’s $100 limit would curb contractors’ influence. But now we see that they could spend huge sums of unreported dark money to elect candidates to serve their interests.

It’s time the City Council invited knowledgeable citizens to identify the problems, design the solutions, clean up this mess and make Boulder once again a leader in fair, open and transparent elections.