Colorado: Where Anyone Can Squelch Political Speech

With school board elections approaching, Tammy Holland purchased ad space in her local paper to inform her neighbors about their available options when it came time to vote. For this brazen exercise of her free speech rights, Ms. Holland found herself forced to expend considerable time and resources to defend her actions in court, twice. You might wonder how this could happen in a “free” country that ostensibly enjoys the blessings of the First Amendment. Unfortunately, Colorado’s byzantine system of campaign and political finance regulations not only turn a blind eye to First Amendment concerns, but actively incentivizes politically motivated, retaliatory litigation. 

Colorado is unique in being the only state to effectively outsource enforcement of its campaign finance regulations by allowing “any person who believes” that campaign finance laws are being violated to “file a written complaint with the secretary of state.” Filing a complaint triggers a litigation process culminating in a court hearing before an Administrative Law Judge, much like a trial. After Ms. Holland was dragged into court on the whim of individuals who took issue with her speech, Campaign Integrity Watchdog (CIW)—an outside group that was not a party to the litigation—filed a motion requesting the court seal otherwise public records because they contain information related to campaign finance settlements. If the court grants CIW’s request, the public will never be able to access vital information about how these cases are resolved. In an effort to protect the public’s right to know, Cato has joined the Reason Foundation to file an objection to CIW’s motion.

Citizens should be able to access information about how their campaign finance laws are enforced. As the United States Supreme Court has long held, it is presumptively the right of the public to access and know the contents of court filings. Judges are obligated to avoid secret trials, which are anathema to a free society. And, in the context of Colorado’s campaign finance laws, which encourage individuals to function as an arm of the state by instructing them to “prosecute” perceived violations, it is doubly important that the public have access to relevant court filings and records. Denying CIW’s motion and allowing access remains faithful to the presumption that, in the criminal context, plea agreements should be open. Sealing the records would contravene the long-established common law right of access to judicial records and the local rules of the District Court of Colorado. In the interest of transparency, public access, and freedom from political prosecution, CIW’s motion to restrict should be denied.