Ethics Commission Says New Rules Do Not Violate Colorado Ruling

Back in January, we wrote about a ruling out of the 10th Circuit that determined that Colorado’s campaign finance laws were unconstitutional because they allowed candidates for major parties to raise more funds than their minor party and Independent competition. At the same time, Oklahoma was considering campaign finance reforms that we felt could be in violation of that ruling.

During this past legislative session, the Legislature passed a campaign finance reform bill that allows for the State Ethics Commission the ability to write its own rules with only a simple approval from the Legislature. Now that the bill has passed and the session is over, the new rules go into effect for the 2016 elections.

We had asked the Ethics Commission about whether they took that ruling into account when drafting the rules, but were told the ruling came after they drafted them. So they told us that they would review the ruling and announce their opinion at a later meeting. It was in the July meeting that they determined the new rules do not violate the 10th Circuit ruling. (PDF)

General Counsel Frazier discussed Riddle v Hickenlooper, a 10th Circuit Court of Appeals ruling regarding disparate contribution limits in Colorado. Frazier explained that Commission staff had analyzed this ruling, and that it would not impact the Commission’s recently promulgated campaign finance rules.

We have requested a copy of the Commission’s findings but have not heard back from the Ethics Commission. Frazier is no longer employed by the Commission and we have not been able to get in touch with her replacement.

It is our opinion that these rules, while not violating the letter of the ruling, do violate the spirit of the ruling. By allowing some candidates to raise more money than others, the playing field is stacked in favor of major party candidates over their competition.

The fact remains that if these rules remain unchanged before the 2016 elections, we will likely see a challenge to the rules and they will more than likely be ruled unconstitutional just as Colorado’s rules were.

Tenth Circuit Rules Against Lopsided Campaign Contributions In Colorado

United States Court Of Appeals For the Tenth CircuitEarlier this year, the Oklahoma Ethics Commission proposed a change in campaign contributions. Under their proposal, the family restriction would be removed. This is great improvement as current law means a married couple can only give half as much as their unmarried friends.

However, the other suggestion is something we can’t agree with. The other proposal is to change the current $5,000 per election cycle contribution limit to a $2,600 limit per election limit, meaning $2,600 for the primary, $2,600 for the run-off, and $2,600 for the general election. This proposal will create lopsided elections and disproportionately harm Independent candidates.

Thanks to Brian Altenhofel, we now learn about a 10th Circuit Court ruling that invalidates a similar law in Colorado (PDF). Any ruling from the 10th Circuit applies to Oklahoma as the state falls under its jurisdiction.

In Colorado, the law was that contributors could donate $200 to the campaigns of state candidates, but the law provided that major party candidates could get an additional $200 because they participated in a primary. However, the law was structured in such a way that the candidate doesn’t even have to participate in a primary. So even if a Republican or Democratic candidate was unchallenged in their party, they could still collect for the primary they didn’t participate in. However, the law provided no such additional contributions for minor party, unaffiliated or write-in candidates. This means the latter candidates could only get $200 per contributor while their Republican and Democratic competition could collect $400.

The district court did not question the fundamental nature of this right. Instead, the court reasoned that Colo. Rev. Stat. § 1-45-103.7 had not treated individuals contributing to Ms. Curry any differently than the individuals contributing to the Republican and Democratic candidates. This reasoning is incorrect. After the primary, a supporter of Ms. Curry could give her only $200. At the same time, others could contribute $400 each to the Republican and Democratic candidates, and the candidates could spend that money in the general election. In this way, the statute treated contributors differently based on the political affiliation of the candidate being supported. And by treating the contributors differently, the statute impinged on the right to political expression for those who support Ms. Curry or other nominees who are unable to obtain funds prior to nomination.

As a result, we conclude that the statutory classification impinged on a fundamental right.

Colorado had attempted to argue that such contribution limits were in place to fight corruption. However, the court did not see it that way.

The Defendants rely solely on the State’s interest in preventing corruption or the appearance of corruption. This interest is sufficiently important. See Buckley v. Valeo, 424 U.S. 1, 67-68 (1976) (per curiam). But this interest has little to do with Colorado’s statutory distinction among contributors.

In evaluating the connection to the statutory distinction, we must determine whether it is closely drawn to advance the State’s interest in preventing corruption or the appearance of corruption. We conclude that the means chosen are ill-conceived to advance these interests.

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. But the Defendants have never made such a suggestion. 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.

So if the law does not protect against corruption and results in hindering the ability of unaffiliated, minor party and write-in candidates’ to raise funds, then what is the purpose of the law? The court could find no reason.

We do not suggest that the constitution would forbid any contribution limits based on an election cycle. But here the State of Colorado has created different contribution limits for candidates running against each other, and these differences have little to do with fighting corruption. Indeed, even now, the Defendants have failed to articulate how the statutory classification advances Colorado’s interest in preventing corruption. Thus, we conclude that the statutory classification violates the right to equal protection for individuals wishing to contribute to write-ins, unaffiliated candidates, and minor-party candidates when each candidate runs unopposed for the nomination.

So under this ruling, Oklahoma should be very wary of making any changes to the contribution limits that would fall afoul of this court ruling. So we welcome the removal of the family restriction and would even welcome a lower cap. However, anything that creates lopsided elections as Colorado’s law and the Ethics Commission’s proposal do would be unconstitutional under this ruling.

Proposed Ethics Commission Change To Political Contributions Would Harm Independents And Create Lopsided Elections

Earlier this week, Lee Slater, executive director of the Oklahoma Ethics Commission, introduced a proposal to reform Oklahoma’s political contribution laws, particularly those regulating how much individuals and families can donate to campaigns. His reasoning is that the current laws are punitive toward families.

I believe that family limit to be unconstitutional. I believe that it discriminates against a married person as opposed to a single person.

The current campaign contribution limits, found in Rule 257:10-1-1 of the Oklahoma Statutes, reads as follows:

No person or family may contribute more than five thousand dollars ($5,000) to a candidate for state office or to a candidate committee authorized by such a candidate to accept contributions or make expenditures on his behalf during a campaign as defined in Chapter 1, Section 2 and as provided in Paragraphs (4) and (5) of this subsection. No candidate or candidate committee shall knowingly accept a contribution in excess of five thousand dollars ($5,000) from a person or family during a campaign.

Under the current law, A married couple would only be able to donate a combined $5,000 to a particular candidate, yet their unmarried friends could donate a combine $10,000 to a different campaign. We agree that this language is especially punitive toward those who are married. However,  Mr. Slater’s proposal goes much further than simply striking the phrase “or family” from the statute.

Under Mr. Slater’s proposal, the $5,000 contribution limit would also change. Current law limits the individual or family contributions to $5,000 for the entirety of the campaign. Which means from the moment the candidate registers intent with the Ethics Commission to the election, you cannot give that candidate more than $5,000. Slater’s proposal changes that limit to a $2,600 limit per election. This means that you can donate up to $2,600 to a candidate for the primary election, another $2,600 for the run-off primary, and another $2,600 for the general election but only if that candidate would appear on the ballot in those elections. Those who do not appear on a primary ballot because they ran unopposed in their party would be limited to only $2,600 per contributor for the entire campaign.

For an illustration of why this isn’t a good idea, I compiled a list of elections from the 2012 election season that would have had lopsided contributions if this proposal had been in place in 2012.

  • In the State Senate District 15 race, Rob Standridge (R) appeared on the ballot for all three qualifying elections while his November competition, Claudia Griffith (D), appeared only on the November Ballot. This placed Standridge at an advantage of $5,200 per contributor over Griffith.
  • In the State Senate District 43 race, Corey Brooks (R) appeared on the ballot for all three qualifying elections while his November competition, Mike Fullerton (D), appeared only on the November Ballot. This placed Brooks at an advantage of $5,200 per contributor over Fullerton.
  • In the State House District 14race, Jerry Rains (D) appeared on the ballot for all three qualifying elections while his November competition, Arthur Hulbert (R), appeared only on the November Ballot. This placed Standridge at an advantage of $5,200 per contributor over Griffith.
  • In the State House District 88 race, Kay Floyd (D) appeared on the ballot for all three qualifying elections while her November competition, Aaron Kaspereit (R), appeared only on the primary and November ballots. This placed Floyd at an advantage of $2,600 per contributor over Kaspereit.
  • State Senate Districts 7, 11, 39, and 41 all had one candidate who appeared in a primary against a candidate who ran unopposed in his or her party. Those candidates who were in a primary had a $2,600 advantage over their opponents.
  • State House Districts 3, 22,  23, 26, 27, 32, 36, 37, 45, 51, 60, 71, 86, and 101 all had one candidate who appeared in a primary against a candidate who ran unopposed in his or her party. Those candidates who were in a primary had a $2,600 advantage over their opponents.

As can be seen from these races, this proposal would create some very lopsided races throughout the state. It is hard to see how that would benefit the people of Oklahoma.

What is especially appalling in this proposal is the punitive nature of it toward Independent candidates. While both Democratic and Republican candidates have access to primary ballots, and thus the extra funds available by appearing on those, Independent candidates are by law restricted only to the November election. Which means there is no possible way an Independent candidate could receive more than $2,600 per contributor while her opposition has a potential $7,800 per contributor.

As the law currently stands, a simple compromise of striking the phrase “or family” would be greatly improved and fix what Slater feels is unconstitutional. There is no need to introduce changes to the contribution limits that would unfairly restrict the ability of Independent candidates to raise money and which would also created lopsided races throughout Oklahoma. We hope that Oklahoma’s lawmakers would also see this major flaw and avoid that particular change.