Tens of millions of dollars are flowing into Colorado’s elections, including so-called “dark money,” or campaign contributions that can't be readily connected to donors. That's a quandary for voters who seek to unmask those providing major backing to some of the most influential and aggressive political groups. That money also poses challenges to the authority of the Federal Election Commission (FEC), the independent regulatory agency tasked with enforcing the country's campaign finance laws, says the commission's incoming chairwoman, Ann Ravel.
“I think disclosure is a major problem in this country now in campaigns,” Ravel says.
The Democrat adds that she believes her fellow commissioners are shirking their responsibility to enforce campaign rules in cases where the FEC's legal counsel has pointed to evidence that laws may have been broken.
The FEC is made up of six members -- three Republicans and three Democrats.
“What is frustrating is that we cannot get four votes of commissioners who want to just find out the facts when our general counsel has said there is sufficient information on the public record that would cause any person, given our standard, to try to investigate it,” Ravel says.
Ravel, who has since 2013 served as the commission's vice chairwoman, claims partisan politics and an ideological divide among commissioners have stymied probes. In one example, she cites the 2010 election activities of Crossroads GPS, a nonprofit founded by former President George W. Bush’s adviser Karl Rove. In January 2014, news organizations reported that the FEC's legal counsel recommended that "the Commission find reason to believe that Crossroads GPS violated [election law] by failing to organize, register, and report as a political committee, and authorize an investigation.”
Crossroads GPS is currently the biggest spender on TV ads in Colorado. The group has bought more than $10 million of TV air time so far this election. Most of that money has gone toward efforts to unseat Democratic Senator Mark Udall in his race against Republican Rep. Cory Gardner.
Crossroads GPS is one of many 501(c)(4) groups sometimes described as "social welfare" organizations. Many play substantial roles in funding election ads.
The groups “do what I consider, and most people would consider, to be communications about politics, but they will not disclose their donors,” Ravel says. “The public, I believe, has a right to know who is behind campaigns. That’s basic and that’s a basic principle of the FEC. That’s why we were established.”
Ravel points to at least one other case in which the commission had evidence to investigate but did not. It involved a “super PAC” -- a powerful political action committee -- that may have illegally worked with a Democratic congressional candidate, she says.
Four years ago, Citizens United won its U.S. Supreme Court case against the FEC. The ruling allows nonprofits, labor unions, and other groups to make unrestricted independent political expenditures. The impact, Ravel says, is that there are more 501(c)(4) groups spending “dark money.” Citing Citizens United and another Supreme Court case, she argues that justices had intended that donors' names and their contributions be made public.
“They said explicitly -- in fact it was eight justices who signed onto this -- that a way to mitigate the problem [of dark money] is disclosure,” Ravel says. “It’s our obligation to tell the American public who is contributing to campaigns.”
CPR News contacted the FEC’s press office to request an interview with the commission’s Republican chairman, Lee Goodman. He did not return calls. A request for a statement was then extended to Goodman, as well as to the commission’s other two Republicans, but those requests went unanswered.
In Colorado, Scott Gessler questions election laws
Citizens United, a conservative nonprofit based in Virginia, this month received a green light to release its controversial film, “Rocky Mountain Heist.” The film alleges that a small group of Colorado’s wealthiest residents hijacked state politics to advance a liberal agenda, as highlighted in the trailer.
The Colorado Secretary of State’s Office, which oversees elections, argued that under state law, Citizens United must disclose financial backers just like political committees. But Citizens United successfully argued in the U.S. 10th Circuit Court of Appeals in Denver that it is a media organization and therefore doesn’t have to follow state election rules.
“That line between who is a media corporation that can do this and the ones who can’t do this has frankly become quite blurry with the Internet and different forms of communications,” Secretary of State Scott Gessler, a Republican, says.
Colorado campaign finance laws, he adds, are “exceedingly complex” and should be reformed. Some candidates and committees have racked up tens of thousands of dollars, even hundreds of thousands of dollars, in fines because of paperwork problems, he says.
"We had people who had raised maybe $1,000 or $2,000, had then shut down their committees -- or they thought they did -- and they were all of a sudden facing $100,000 or more in fines and a state collection agency then wants to take away their house," he says.
Asked to back up that claim, Gessler's office provided a spreadsheet of cases -- and pointed to news coverage -- where candidates and groups in a handful of cases have accrued late fines of hundreds of thousands of dollars for failing to properly navigate election reporting requirements.
Gessler agrees -- in some cases -- with FEC incoming chair Ann Ravel regarding transparency of campaign backers. “The way I look at it, ultimately, is for large dollar amounts, I think that makes sense to have a lot of transparency,” Gessler says. “But in Colorado, for example, let me ask you, ‘Is it really critically important that we know who contributed $20 to a candidate?’”
Under current state law, political committees must disclose donors who contribute $20 or more, including non-monetary contributions.
In 2012, Gessler’s office made changes to the state’s campaign finance laws, reducing or doing away with disclosure requirements for many kinds of political groups. In making the changes, he says his office was “following court guidance to provide clarity to people who want to politically speak out and also to follow federal law, the U.S. Constitution, First Amendment, as interpreted by federal courts.”
The effort triggered legal challenges that Gessler lost in court.
“So I got sued on one end and sued on the other end," Gessler says. He asserts that, as a result of losing these challenges, "unfortunately Colorado law right now is a mess.”
He adds the complexities of state campaign finance laws are frustrating to groups that try to get into politics.
“The very rich and well-financed groups -- they’re the ones who can hire attorneys. They’re the ones who can hire accountants to be able to navigate this morass of difficult, conflicting, and ambiguous laws,” Gessler says. “Grassroots groups, on the other hand -- the ones who spend less amounts of money, the ones who have a lot of volunteers working for them and aren’t professionals in this particular area, the ones who can’t afford to hire attorneys: they’re ones who get just plain old chewed up by these campaign finance laws, and I have seen this over and over again.”
In an another court ruling this month in Colorado, U.S. District Court Judge John Kane found that a nonprofit think tank called the Coalition for Secular Government did not have to disclose funding of an issue paper opposing the so-called “personhood” ballot initiative, Amendment 67.
Gessler’s office, which argued that the group was an issues committee required to disclose campaign finances, was on the losing end of that court ruling, too. Gessler says he fights the battles because he’s required to under state law. The case highlights the need to simplify state campaign finance laws.
“I don’t think that’s a way to run a railroad where every time you want clarity, you have to file a federal lawsuit,” Gessler says.