Opinion: Fixes to election laws can prevent another political mailer controversy

The nasty postcards have exposed a gaping hole in Boulder’s election laws.

I’m referring to the nasty anti-Yates postcards sent out by the Working Families Party promoting Nicole Speer or Aaron Brockett as Boulder’s first directly elected mayor. When the first card showed up over two weeks ago, ten citizens (including me) immediately wrote to Nicole Speer and Aaron Brockett, formally requesting “that you IMMEDIATELY disclaim any involvement and IMMEDIATELY repudiate this organization’s attempts to influence Boulder’s elections.”

Nicole was silent. Aaron posted something on social media. The city council (who were copied on this initial communication) did not take a stand against these ugly, partisan attacks. And WFP’s campaign continued — with a second large postcard, web ads, and “polling” phone calls — and very likely shifted the close outcome in Brockett’s favor.

Both former council member Crystal Gray and I immediately filed formal complaints with the City over WFP’s failure to file as an Unofficial Candidate Committee (UCC), since, per their own website, they are a membership organization, just like Better Boulder, Boulder Elevated, Boulder Progressives, PLAN-Boulder and the Sierra Club. Neither of us has yet received substantive replies.

All these organizations have UCC’s that are subject to the City’s election rules, including contribution limits, disclosure rules, etc. (By the way, the candidate’s own organization is called an Official Candidate Committee, or OCC.)

Instead, the WFP operated by making “independent expenditures.” This is a category in Boulder’s election laws that was intended to only include the expenditures by a “natural person,” an ordinary individual, of their own money, acting alone, and not part of or in coordination with a group. Independent expenditures were not intended to be an escape hatch for a multi-million dollar organization like WFP ($38 million in receipts in 2021) to avoid Boulder’s $100 per person limit on campaign contributions and other filing obligations.

Somehow, these three obvious categories — OCC, UCC, and “natural persons” — got expanded to include this fourth bizarre catchall. The problem is, of course, that if WFP can get away with not limiting contributions, why should any organization subject itself to Boulder’s campaign contribution limits? Just claim “independent expenditure.” This clearly needs an immediate fix, requiring action by the council — and mayor.

There’s also the issue of “coordination,” that is, third parties communicating sub rosa with candidates to get approval of that party’s ideas for spending big bucks to influence the outcome. Such coordination is forbidden under Boulder’s campaign laws. But because these laws are only enforced after citizens complain, and a normal person has no way to investigate a candidate’s actions, there’s no good way to confirm suspicions, and so no basis on which to complain about hidden coordination. (In case you’re wondering, WFP has disclosed spending almost $24,000 on Boulder’s election.)

So that’s our situation. Unless our laws are seriously tightened up, this escape will become the norm. And all the hard work of citizens over the last 20-plus years to keep Boulder’s elections clean, non-partisan, and local, and to limit campaign contributions and spending will be out the window.

The fixes are pretty clear: First, the “independent expenditure” category needs to be removed, other than for a natural person operating solo, without coordination or funding from others. I suggest naming the third category “Independent Natural Person.” Then, being an INP or involved in an OCC or a UCC would be the only legal ways to expend money in a council or mayoral election.

Second, the coordination issue needs to be resolved, possibly by having candidates sign under oath a document where they agree to not coordinate, either explicitly, implicitly, or via a third party, with any other entity or natural person other than those in their own OCC.

Third, if an issue shows up, as it clearly has this year, the staff needs to act proactively, and the candidates and entities need to be investigated in a timely fashion, so everyone can find out the facts about what’s really happening.

The City should have an arrangement already set up with an outside counsel to support this investigation, and an automatic process to initiate that attorney’s involvement. Such arrangements have been used before in a variety of situations, and this would fit very well.

Of course, all of this depends on having a city council that is ready and willing to make the changes necessary to our election laws. Some of the new people on the council will help. And hopefully, the next mayor will become way more proactive in these matters, since without that, I doubt very much if any substantial improvements will occur.

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