Supreme Court Campaign Case Pits Colorado Ethics Watch vs. Colorado Education Association

This little tidbit I uncovered either shatters the grand Colorado Democracy Alliance (CoDA) conspiracy theory or proves it to be even more convoluted and diabolical than previously imagined. But court documents show two of the Alliance’s core groups — sue-happy Colorado Ethics Watch (CEW) and the Colorado Education Association (CEA), the state’s largest teachers union — on opposite ends of a state supreme court case regarding elections law.

Back in 2008 CEW filed suit against a couple of Republican 527 groups (Senate Majority Fund LLC and Colorado Leadership Fund LLC) claiming that they had overstepped the bounds of campaign finance law by participating in “express advocacy” of state legislative candidates. The administrative law judge ruled against the plaintiffs, and CEW lost on appeal as well. Now the case is headed to the state’s highest court.

CEW’s argument is so absurd based on legal precedent that, well, even CEA has filed an amicus brief defending the Republican groups (so has the Colorado Bar Association, but it’s not as intriguing as the teachers union chiming in). CEA attorney Mark Grueskin summarizes the argument before the Colorado Supreme Court as follows:

Ethics Watch argues for an express advocacy standard that is unique and a departure from the law that voters adopted and the Courts have construed since the enactment of Article XXVIII of the Constitution. [also known as Amendment 27]

Interestingly, in two places in the brief, Grueskin cites the U.S. Supreme Court’s recent Citizens United in defense of his argument.

Attorneys for the Republican 527 groups elaborate in their own brief:

The Court of Appeals correctly held that the Supreme Court has applied the functional-equivalent-of-express-advocacy test only to limit the reach of electioneering communications, not as a stand-alone definition of express advocacy. CEW’s position opposes the Supreme Court’s trend of limiting, rather than expanding, the political speech that can be regulated, and its preference for clear, understandable distinctions. The Supreme Court has rejected CEW’s premise that compliance independently justifies further preventative regulation of speech, and also rejected any attempt to regulate speech that merely attempts to influence an election. Ultimately, CEW’s standard that all speech that “unmistakably advocates” a candidates election or defeat is an impermissible purpose test, which ignores the reasonable alternative purpose of educating voters about relevant issues, even if those issues are associated with a candidate or relevant to an election.

Let’s not kid ourselves. Of course, there’s no sudden political alliance between CEA and Republicans. CEA makes its own substantial amount of contributions to 527 groups on the opposite side of the political fence — including groups that maliciously distort the truth in attacking candidates. But to the credit of the GOP groups and the union (yes, I’m writing something nice about CEA… it’s not the first time!), they both make the reasonable case for protecting free speech in elections.

Now, if CEW were willing to argue against CEA’s opt-out method of collecting automatic political contributions from teacher paychecks, then I’d take the other side. But what we’re talking about is protecting free political speech. In this case I’m glad to agree with the union. Even if it all ends up being part of some grand, byzantine CoDA conspiracy.