Originally published in the Denver Post.
In 2002, the citizens of Colorado, as part of a package of strong campaign finance reform laws, passed laws requiring the disclosure of contributors to ballot measure campaigns.
However, the basic transparency of the ballot measure process has become the most recent target of what some have described as a systematic attack on campaign finance rules. Today, a Federal Court of Appeals in Denver will hear oral arguments in Sampson vs. Buescher, to determine whether Colorado’s citizens have a right to know who is behind the big dollar spending in ballot measure elections.
Described as the fourth branch of government, the ballot measure process in many states, including Colorado and California, has the power to make new laws and alter a state’s constitution. With so much at stake, millions of dollars are spent each election cycle to influence voters concerning issues such as immigration, energy policy, and gay marriage. In 2006, supporters and opponents spent $329 million on just 12 of the 204 ballot measures across the country. In 2008, campaigns for and against California’s Proposition 8 alone cost $60 million.
The Supreme Court has traditionally upheld disclosure laws because they (1) deter corruption—an exchange of money for favors is easily detected when the identity of major supporters are made known— and (2) enable the electorate to make an informed decision by providing it with information on whose money is behind each campaign.
However, in an effort to amplify big-money’s already dominating voice in the ballot measure process, conservative groups are peddling to the Court the oft-repeated fallacy that transparency rules are unnecessary in the ballot measure process. This sham argument is premised on the flawed reasoning that since the subject of ballot measure elections are not candidates, ballot measure elections cannot be corrupted and therefore, the public does not need to know who is backing a ballot measure.
Real life electoral experience proves the opposite. For example, the names of ballot measure committees are often misleading and knowledge of a committee’s financiers is the only way to accurately assess the interests represented by such committee.
For example, in Littleton’s 2007 ballot measure election about a zoning policy favorable to Walmart, disclosure reports, filed in compliance with the very laws being challenged in the Sampson case, showed that a ballot measure committee named “Littleton Neighbors Voting No” was not actually a committee of local neighbors but was instead a committee funded through contributions from Walmart totaling $170,000.
The Brennan Center for Justice filed a friend-of-the-court brief in Sampson disproving the myth that the ballot measure process is not susceptible to corruption. The brief demonstrated that candidates and large donors often use ballot measure committees as loopholes to circumvent contribution limits. Disclosure of the identity of these large contributors is the only way to detect whether candidates and their large contributors are indeed using ballot measure committees as rfronts to channel money to candidates.
For example, in Colorado’s 2006 gubernatorial primary, one candidate for office, Marc Holtzman, created a ballot measure committee as part of his campaign strategy. Although the contribution limit in his race was $500 and corporate contributions were banned, the ballot measure committee took in several contributions of more than $50,000 including one whopping $150,000 corporate donation. During the primary, the committee used these contributions to finance TV, print and radio ads featuring Mr. Holtzman as a spokesperson.
Similarly, in 2004, California governor Arnold Schwarzenegger’s ballot committee accepted up to $1.5 million from a single donor; without the loophole, his maximum donation would have been $21,200. This year, his committee has already received many six figure contributions, including $500,000 from a health care interest group.
These are not isolated examples. The past thirty years provide two lessons on contribution limits. First, large and potentially corrupting contributions will find their way through any loophole around limits, most often by flowing into the least regulated areas. Second, candidates seem to find a way – any way – to use these contributions for campaigns.
A report recently filed by California’s Fair Political Practices Commission (FPPC) found that since enactment of contribution limits on candidates in 2001, there was an explosion in large contributions to candidate-run ballot measure committees in California. Since 2001, these committees raised almost $150,000,000 with some individual contributions exceeding $2,000,000. According to the FPPC, using access to these big-money dollars, “candidates have treated these committees as open-ended slush funds to be transferred at will for purposes unrelated to any ballot measure.”
If this challenge succeeds, special interests and candidates will continue to be able to use ballot measure committees as slush funds, however, such influence-peddling would occur in secrecy, without the public’s knowledge.