Colorado Rights Blog


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November 3, 1998

The American Civil Liberties Union of Colorado (ACLU) filed suit today on behalf of an Aspen citizens group that has been charged with failing to inform the government of the names of its donors and supporters.

According to the lawsuit, the Common Sense Alliance, which has taken positions on a variety of local issues in the last several years, faces an imminent risk of prosecution after an administrative law judge (ALJ) ruled last Thursday that the organization is an "issue committee" that violated the Fair Campaign Practices Act, which Colorado voters enacted as Amendment 15 in 1996.

The lawsuit contends that the ALJ misread state law and interpreted it too broadly. It further contends the ALJ’s view of state law, if upheld, would violate the First Amendment rights of the Common Sense Alliance as well as numerous other groups that express views on matters of public concern.

Laws regulating elections distinguish between campaigns for candidates and campaigns in support of ballot issues. Groups that are formed for the primary purpose of accepting donations and taking positions on ballot issues are defined as "issue committees" under Colorado law, and they are required to file regular reports disclosing information about their spending and their supporters.

In its two years of existence, the Common Sense Alliance has taken positions on eleven different local ballot propositions on issues that have included home rule charter amendments, tax issues, environmental issues, and public transportation. It has also endorsed candidates for local office, sponsored fora on local issues, and has conducted voter registration drives and get-out-the-vote campaigns.

According to the lawsuit, the ALJ acknowledged that when the Common Sense Alliance formed in 1996, it was not an "issue committee." Nevertheless, the ALJ ruled that the Alliance "evolved" into an issue committee because of its activities in support of a Pitkin County ballot measure in the summer of 1998.

The Alliance opposes the plans of local officials to promote a lightrail system for the Aspen area. In the summer of 1998, Common Sense Alliance launched a successful drive to place a measure on the ballot, which, if passed, would establish a date for cutting off any further studies to advance the light rail idea until a source of funding was in place.

According to the Alliance, some of its supporters and donors insist on anonymity because they are afraid of reprisals from local officials who strongly support the addition of lightrail to the areas’ transportation system.

"The Common Sense Alliance is not an issue committee under Colorado law," said Ed Ramey, who filed the case as a volunteer cooperating attorney for the ACLU. "It was not formed for the primary purpose of soliciting and spending money on campaigns relating to ballot issues."

Ramey further explained that Colorado law determines whether a group is an issue committee by looking at its primary purpose at the time it was formed. "The ALJ’s contrary view means that hundreds of organizations that take positions on public issues could suddenly be subject to special disclosure and reporting requirements depending on how a government official views the organization’s focus at any particular moment," Ramey continued. "Advocacy organizations like the League of Women Voters, Common Cause, and even the ACLU, which have never been subject to the Campaign Practices Act, would be subject to potential penalties under an impermissibly vague standard that poses too great a risk of chilling their constitutionally-protected First Amendment rights to solicit support from their members and spend money to express their views. If the ALJ’s ruling stands, then advocacy groups will never know when or whether some government official might decide that, for some undefined and unspecified period of time, they had ‘evolved’ into an issue organization."

"It makes no sense to apply the law to the Common Sense Alliance," said Jeffrey Evans, the organization’s current treasurer and formerly its chair. "Are we supposed to form a separate organization every time we take a position on a ballot issue? That would have required us to have formed at least eleven separate organizations, all filing regular reports with the government. No one should have to hire a lawyer to express views about issues of public concern."

Under the Fair Campaign Practices Act, the ALJ’s ruling will be forwarded to the Pitkin County District Attorney, who has the option to file criminal charges. Defendants are Pitkin County Attorney John M. Ely, District Attorney Mac Myers of the Ninth Judicial District, Secretary of State Victoria Buckley, and Attorney General Gale Norton.

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