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10th Circuit Overturns Disparate Contribution Limits in Colorado Campaign Law

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The 10th Circuit Court of Appeals ruled Thursday (23 January 2014) that a Colorado campaign-finance statute imposing disparate contribution limits for major-party (Republican & Democrat) vs. minor-party, unaffiliated or write-in candidates violates the equal-protection clause of the U.S. Constitution.

The ruling stemmed from a lawsuit brought by former La Plata County Commissioner Joelle Riddle, former state legislator (and legislative candidate) Kathleen Curry and the Libertarian Party of Colorado in the aftermath of the 2010 elections. Both Riddle and Curry were Democrats who left that party to run for election as unaffiliated candidates, and, like Libertarian Party candidates, were constrained by lower contribution limits imposed by the statute - now found to be unconstitutional.

The U.S. District Court had originally ruled against the lawsuit, but was overturned on appeal.

Colorado campaign finance statutes (C.R.S. Title 1 Article 45 "Fair Campaign Practices" Act) impose disparate limits on candidates based on party affiliation:

All major party candidates may accept contributions for the primary and general election.
Minor party candidates who appear on a primary election ballot may accept contributions for the primary and general elections. Unaffiliated and minor party candidates who do not appear on a primary election ballot may only accept contributions for the general election.
(QUICK REFERENCE OF STATE CANDIDATE CONTRIBUTION LIMITS, Secretary of State Campaign Finance Manual, p.2)

The disparity was challenged on equal-protection (14th Amendment) grounds

arguing that the state statute violates the rights to equal protection, political expression, and association for individuals contributing to write-ins, unaffiliated candidates, and nominees for the minor parties. (Ruling at 4)

The court agreed, holding that

the state statute, as applied, violates the contributors’ rights to equal protection.

The state Attorney General's office advanced two main arguments in defending the law:

  1. Major-party candidates must frequently spend money before the primary to “clear the field” of others wanting the nomination.
  2. The state has a compelling interest in preventing corruption or the appearance of corruption

The court deconstructed both arguments in holding the law unconstitutional.

1. Major-Party Primaries as Rationale for Disparate Limits

Under Colorado law, major-party candidates "can obtain a place on the general-election ballot only by running in (and winning) a primary even when there is only one candidate seeking the nomination." (Ruling at 2) Minor-party, unaffiliated or write-in candidates

However, not all major-party candidates are actually opposed in primaries - in fact, according to an analysis by the Plaintiff's attorney of major-party candidates in Colorado between 2006 - 2010, out of 590 total, "only 63 of them had opponents in the primary." ("Lawsuit overturns political-funds law," Durango Herald 23 January 2014)

Thus, even though major-party candidates are required by law to gain ballot access for the general election by first going through a (taxpayer-funded) primary election, that process does not necessarily impose additional costs for the candidate - even though major-party candidates can receive (and thus, spend) twice as much in contributions for the general election.

The "primary-cost" basis for unequal contribution limits was found wanting by the court:

First, can a state really justify unequal treatment because of a “problem” of its own creation? After all, to the extent unchallenged major party candidates may incur more costs because they have to participate in primaries (an essential factual premise for which Colorado has identified no evidence in our record), that’s only because state statutory law requires them to do so. (GORSUCH, Circuit Judge, concurring, at 6)

2. State Interest in Preventing Corruption or Appearance of Corruption

Constitutional precedent since Buckley v. Valeo (1976) has upheld the state's compelling interest in preventing corruption or the appearance of corruption by means of contribution limits on political campaigns; however, the court found that "this interest has little to do with Colorado’s statutory distinction among contributors," further noting:

The statutory classification might advance the State’s asserted interest if write-ins, unaffiliated candidates, or minor-party nominees were more corruptible (or appeared more corruptible) than their Republican or Democratic opponents. ... In the absence of a link between the differing contribution limits and the battle against corruption, the means chosen are not closely drawn to the State’s asserted interest. (Ruling at 11)

In fact, the state could offer no compelling defense of the statute that "creates a basic favoritism between candidates vying for the same office" and "creates different contribution limits for individuals running against one another." (Ruling at 12)

Perhaps the most damning condemnation of the law's essential unfairness comes from the concurring opinion:

"When it really comes down to it, the only reason I can imagine for Colorado’s challenged regulatory scheme is a bald desire to help major party candidates at the expense of minor party candidates." (GORSUCH, Circuit Judge, concurring, at 7)

The 10th Circuit ruling, striking down that law, helped restore some fairness to Colorado electoral campaigns - and a modicum of integrity to Colorado campaign finance law.

Read more about the Colorado campaign-finance disparity case:

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