By Jonathan Shikes
By Michael Roberts
By Jonathan Shikes
By Michael Roberts
By Michael Roberts
By Michael Roberts
By William Breathes
By Melanie Asmar
In November 1996, Amendment 15 got more votes than any other measure or candidate on the Colorado ballot. Voters approved by a two-to-one margin the package of campaign-finance reforms, which for the first time placed limits on the amount individuals and political action committees can give to candidates for state office.
Since that vote of confidence, however, it's been a bumpy ride for Amendment 15. Repeating a scenario already played out in three other states, politicians and political organizations are suing the state in an effort to overturn the measure. In a trial under way in U.S. District Court, those groups are claiming that the limits Amendment 15 places on campaign donations violate their constitutional right to freedom of speech.
"It did get 66 percent of the vote," says Tim Tymkovich, the former state solicitor general who's been hired to fight the measure on behalf of the Colorado Republican Party. "But 66 percent of the people can't trump the First Amendment."
Three suits naming a total of 24 plaintiffs were filed against Amendment 15 after the election. Those actions have since been combined, and the battlefield has been narrowed to the courtroom of federal district judge Daniel Sparr.
On one side of Sparr's courtroom are a hodgepodge of conservative Republicans--along with one lone Democrat and an array of special-interest groups that includes the left-leaning Colorado Education Association--who are challenging the state's right to limit campaign cash. They're represented by Tymkovich and Ed Ramey, a local lawyer known for his First Amendment work. The Colorado Right to Life PAC has retained its own counsel: well-known Indiana attorney James Bopp Jr., who has represented pro-life groups in similar trials across the country.
On the other side of Sparr's courtroom are the supporters of Amendment 15: lead defense attorney Elizabeth Weishaupl of the Colorado Attorney General's Office, and Denver lawyer Bob Hill, who's being paid by Colorado Common Cause and the League of Women Voters.
The case has received almost no media coverage and has been painfully dry at times. Lawyer Ramey recalls that during the taking of one deposition before trial, the testimony got so tiresome it actually drove the official recorder to tears. "She asked if we could take a break, and I asked if it would be okay to do one more question, and she just broke down crying," Ramey says. "I've never seen that before."
But the trial has had its moments. The groups challenging Amendment 15 have seen their case sidetracked by embarrassing revelations about the laundering of campaign cash by politicians--including at least two of the plaintiffs. Evidence was presented to show how tobacco money has snaked its way into politicians' pockets. The Republican state party chairman called the leader of the Denver GOP a liar under oath. Perennial far-right congressional candidate Pat Miller accused a deputy attorney general of calling her a liar--and then heard Sparr rule that she had presented "no credible evidence" in her testimony. A former CIA analyst was even asked who killed JFK.
The trial, currently in recess, is expected to resume this week. Whatever the outcome, both sides say the case is likely headed for the U.S. Supreme Court. Already it has provided a fascinating--and farcical--glimpse at Colorado politics.
Attorneys for both sides in the case have presented a Byzantine array of legal arguments. But in the end, the case will come down to a legally intriguing exercise: Judge Sparr's single-minded attempt to read the minds of Colorado voters.
Sparr has said from the bench that the crux of the case will be what voters were thinking when they passed Amendment 15. If, as Tymkovich asserts, voters wanted to limit the influence of PACs or corporations, the measure is unconstitutional, because those groups enjoy the same right to speech as individual citizens. If, as defense lawyers argue, voters intended to limit "corrupting influences" or the appearance of corruption, the monetary limits of Amendment 15 might be allowed.
As Sparr has begun trying to get inside the heads of voters, James Bopp has been laboring to get inside Sparr's--with varying degrees of success.
Bopp is no stranger to big court cases. He was the lawyer who spearheaded the "Baby Doe" case in 1982, when the parents of a severely disabled infant decided to let the baby die rather than have surgeons remove a blockage in the child's throat. Bopp took the hospital to court to force doctors to intervene, and the case sparked the federal Child Abuse and Prevention Act of 1984, which requires hospitals to provide treatment regardless of how disabled a child may be. Bopp argued that doctors have no business making judgments about the quality of an infant's life.
Bopp is now general counsel to the National Right to Life Committee and regularly works First Amendment cases in which he battles groups such as Common Cause in court--and in the media. He recently appeared on Court TV to talk about another campaign-finance case currently in front of the U.S. Supreme Court, and he's also battling assisted-suicide laws in Oregon and New York. As in Colorado, where he has joined forces with Republicans for Choice, Bopp has shown a willingness to work with those with whom he disagrees when they have a common goal. During last year's campaign-finance hearings before Congress, he led a coalition that included Emily's List--a national PAC that supports pro-choice female candidates--in an effort to block subpoenas from Tennessee senator Fred Thompson's inquiry into fundraising practices.
Bopp's main argument to Judge Sparr has been that, regardless of how money has flowed to Colorado candidates, there is no evidence of corruption. During the trial's early stage, he objected to a line of questioning about a contribution to a state senate candidate from Lafayette. Defense attorney Hill presented evidence to show that the donation had been laundered in such a way that it was impossible to tell that it came from a group of Senate Republicans--who in turn had got much of the cash from tobacco companies. Bopp argued that the testimony was irrelevant because, he said, Hill had offered no proof that such money laundering affects the voting habits of candidates.
"You don't think," an incredulous Sparr interjected, "that those funds that were allegedly disguised before they arrived with the eventual candidate aren't evidence of the possibility of quid pro quo corruption?"
Bopp said he didn't, but before he could say another word, Sparr gave his response: "I do, so your objection is overruled."
Rulings such as that might give supporters of Amendment 15 reason to think that Sparr will take their side. Sparr, however, has pointed out a problem he'll face in making his decision: The Supreme Court has ruled in other cases that there must be evidence of what amounts to bribery before corruption can be assumed. During a hearing earlier this month, Sparr said the Supreme Court may have been "too narrow" in its definition of corruption. "I don't think you have to prove a politician committed a crime to prove there's a quid pro quo," he said.
The judge then seemed to realize the ramifications of what he was saying: "Heaven forbid. I shouldn't question the Supreme Court."
Before Amendment 15, Colorado was one of only five states that placed no limits whatsoever on contributions to state candidates (politicians were, however, required to disclose who was doing the giving). And even with Amendment 15 in place, Colorado candidates still enjoy significant freedoms. For instance, the measure places a $2 million total spending limit on candidates for governor. But it allows those people to spend more than that as long as they include a line in all campaign advertising acknowledging their flouting of the voluntary limits. Similarly, candidates for the state House of Representatives have a $50,000 spending cap, but it really isn't a cap at all. As long as they come clean about their gluttony, they, too, can spend whatever they want.
However, people and organizations who want to give large amounts of cash haven't fared as well under Amendment 15. PACs, for instance, can receive only $500 from any one individual donor and can in turn give only $1,000 to statewide candidates and $200 to legislative candidates. Individual donors face the same $1,000 and $200 limits. And all candidates must take no more than 20 percent of their entire campaign purse from PACs.
The amendment's patchwork approach reflects efforts by its framers to tiptoe around sensitive constitutional questions. That's because efforts by states to limit the flow of political cash have a less-than-sterling record in the nation's courts. A key moment came in 1995, when a federal court struck down as unconstitutional a reform measure passed by Missouri voters.
"We paid close attention to that ruling," says Ric Bainter, one of the drafters of Amendment 15. Now a candidate for secretary of state, Bainter says he hoped that by studying the Missouri case, he and his colleagues could avoid making the same mistakes. They gave equal attention to an Oregon measure, also passed in 1994, which was later thrown out by that state's Supreme Court.
California, Arkansas and Wisconsin have since passed their own spending limits on state candidates. California's Proposition 208 was thrown out by a federal judge, while parts of the Arkansas law were stricken as others were allowed to stand, and Wisconsin's case is still pending.
Many observers think the Colorado case could give the U.S. Supreme Court its first chance to change case law on campaign-finance reform since 1976, when the court ruled that spending limits were acceptable as long as they were voluntary. "I think there's a better-than-even chance," says Tymkovich, who already has argued two cases before the U.S. Supreme Court, including Colorado's Amendment 2, "that this will go all the way."
In their search for "corrupting influences," defense attorneys have repeatedly stumbled across the strange role played by tobacco companies in Colorado politics. A memorable example emerged when Hill was cross-examining Steve Durham, a former legislator and current GOP consultant. Hill asked Durham about a $6,000 contribution from his consulting company, Colorado Winning Edge, to the Colorado Republicans for Choice PAC. Durham said the $6,000 was not a contribution but was instead a "purchase of services" from Republicans for Choice. He said the money came from the Colorado Senate Republican Election Committee, a special fund of the Colorado Republican Party set up to elect candidates to the Senate.
Durham said his secretary inadvertently included the $6,000 transaction on a list of contributions made by his company. But under questioning from Hill, it became apparent that the $6,000 was a contribution. Indeed, court records show that three days after Durham's company wrote a check to Republicans for Choice, that organization showed up as a $6,000 donor to the campaign of Fran Raudenbush, a state senate candidate from Lafayette. Durham admitted under questioning that Republicans for Choice had no staff members and no ability to provide any "services" other than to act as a conduit for the money.
Tymkovich objected to Hill's questions on the basis that the issue of campaign disclosures went beyond the scope of the suit. But in overruling Tymkovich, Sparr made it clear that he thinks such questions go to the heart of the matter. "As far as the public knows, that money came from Colorado Republicans for Choice, and that's all they know. Isn't that right?" he asked Tymkovich.
Tymkovich answered that members of the public could have found out about the source of the contribution by inspecting public records. But Tymkovich was wrong. Without prior knowledge of the connection to Durham's private company, no one who wasn't involved in the transaction would have had any idea where the money had came from. Even Durham admitted under questioning that if he had been doing research on Raudenbush himself, he would have had no way of knowing that the money originated with Republicans for Choice.
There was something else he didn't know, Durham tells Westword: that tobacco companies provided the single biggest share of the money taken in by the Colorado Senate Republican Election Committee in 1996. All Durham would have had to do to find out, however, was take a trip down to the Colorado Secretary of State's Office. According to records on file there, the CSREC's biggest single contributor was Philip Morris, maker of Marlboro cigarettes, which gave $20,000 (roughly 10 percent of the PAC's total haul). The committee also took in money from the Tobacco Institute and R.J. Reynolds, though in smaller amounts.
The CSREC's disclosure statement makes no mention of spending money on Raudenbush--or, for that matter, on Colorado Republicans for Choice. But it does reveal a series of checks written to Durham's company. According to that statement, between June 1996 and January 1997 the PAC wrote checks to Durham totaling $80,584.
Just what influence Reynolds and the other tobacco companies may have hoped to exert via such a circuitous system is unclear. Raudenbush, who lost the election, says she had no idea that the money flowing into her campaign--in all, she received $12,000 from Republicans for Choice, by far her largest contribution--had ties to big tobacco. In fact, she says that until the trial, she had no idea the money hadn't come directly from Republicans for Choice.
But Jon Goldin-Dubois, director of Colorado Common Cause, says such seemingly innocuous revelations are significant. "What this means is that the tobacco companies were essentially laundering money through people such as Durham and through PACs," he says. "Even if they were following the law as it was before--which it doesn't look like they were--they still were able to use the old law to intentionally hide the true origins of campaign contributions.
"They are trying to overturn this law," Goldin-Dubois adds, referring to Amendment 15. "But the court case is just illustrating how much we need it."
Republicans weren't the only ones shifting around tobacco money on the sly before Amendment 15 outlawed such hidden contributions. Surprisingly, that bit of information was willingly provided by one of the plaintiffs in the suit, state senator Bill Thiebaut of Pueblo, the only Democratic office holder challenging the measure in court.
Thiebaut testified that R.J. Reynolds had given him $1,000 in 1996 and then told him to forward it to Rocky Germano, a Democratic candidate for a Senate seat from Arvada. Thiebaut says he has no regrets about having hidden the source of the money at Reynolds's request. "It wasn't illegal, and if you don't do things like that, the candidates I want to get elected aren't going to get much money," Thiebaut says, adding that he performed similar transactions for plenty of other fellow Democrats in the days before Amendment 15.
Thiebaut says he thinks Amendment 15 compromises his right to free speech. "I wish I could do more for good Democratic candidates, but right now my hands are pretty much tied," he says.
While the lawyers in the case have been mostly civil to each other, serious bad blood exists between two paid experts who've taken the stand.
Herb Alexander, director of the Citizens' Research Foundation in Los Angeles, was called by the Republicans, and he's already testified in the California trial over Proposition 208. He's also been quoted in most of the nation's major daily papers, usually saying that large contributions have no real influence on politicians.
What Alexander hasn't said is that his research foundation gets money from tobacco companies. This fact, elicited under questioning from Hill, hasn't come out in any of the previous trials in which he's testified, nor has it been revealed in any of the articles in which he's been quoted. But Alexander's foundation is funded in part by Philip Morris, and two members of his board of directors work for the tobacco giant. In response, Alexander says that his board is "diverse," as is his funding base, though he won't say exactly how much of it comes from cigarette makers.
Alexander adds that he "takes umbrage" at the implication that his testimony might somehow be colored by the money he's paid by tobacco companies. "I think it's a low blow to even be asked about that," he says.
But a former student of Alexander's at UCLA, Craig Holman, disagrees. Now an expert who testifies opposite Alexander at similar trials around the country, Holman says, "It's a legitimate question to ask where the money came from."
Alexander, though, says he's still mad at Hill for asking about his links to tobacco during the Denver trial. "I despise him for bringing in that information," Alexander says.
Two-time Arvada congressional candidate Pat Miller began the trial as a plaintiff. She's since been removed from most of the claims in the suit--in large part because Judge Sparr couldn't believe what she said.
Under questioning from Weishaupl about apparent inconsistencies with her own fundraising, the staunch anti-abortion crusader responded, "I've been called a lot of things, but I've never been accused of being a liar."
While Sparr didn't call her a liar, he did say he "found no credible evidence in the testimony" that she gave.
The issue was whether or not Miller's PAC, the anti-abortion Citizens for Responsible Government, stands to be harmed by the spending limits imposed by Amendment 15.
Miller, who has lost two bids to unseat Democratic congressman David Skaggs, wanted to show that CRG would lose its First Amendment right to expression if it couldn't make donations of more than $1,000. She said the group had done so in the past, and wanted to do so in the future, but couldn't because of Amendment 15.
However, the defense showed that CRG hadn't reported making any donations of more than $1,000 during the previous six years--in fact, it hadn't reported making any donations of more than $500 and so would not be burdened by being forced to live within the new limits. The defense based its argument on records from the secretary of state, which showed that CRG had been operating well within the new limits long before they went into effect.
But lawyers for the plaintiffs introduced into evidence receipts and other records to show that CRG had made donations in excess of $1,000 as recently as 1996. The problem is that those donations weren't reported, meaning that, if Miller's testimony was truthful, her PAC must have been in violation of the old disclosure requirements.
Sparr chose to believe that CRG had been accurate in its previous reports to the secretary of state, which meant he didn't accept Miller's testimony. To believe her testimony, he said, "would require the court to ignore the credibility of the documents filed with the secretary of state. The court is not inclined to make that credibility leap."
Lawyer Bopp tried to come to Miller's aid by arguing that even if CRG hadn't exceeded Amendment 15's limits in the past, its desire to exceed those limits in the future was legally sufficient to challenge the law on First Amendment grounds. By way of example, he said a person who wants to burn an American flag deserves as much protection under the Constitution as someone who actually burns one.
Sparr disagreed, ruling that judges must review actual cases, not hypothetical ones. The courts, he added, are not a "debating society."
One way lawyers for the Republicans are attempting to prove that Amendment 15 has hampered free speech is by showing that donations to the party are down 44 percent compared with two years ago--according to them, a pernicious result of the measure's spending limits.
Defense lawyers dispute the accuracy of those numbers but say that even if they are correct, there may be another cause for the decline in contributions: Steve Curtis, the GOP's cantankerous new state chairman.
Curtis has been the focus of a number of unflattering news stories in recent months about his arguments with party members over the issue of abortion. In one of those stories, Bruce Holland, the head of the Denver County GOP, was quoted as saying he thought Curtis was recruiting pro-life candidates to run against pro-choice Republican incumbents. But from the stand, Curtis accused Holland of lying. "That's another blatant lie by Mr. Holland, who is trying to discredit me," Curtis said on the stand.
Holland sounds almost amused when told that Curtis called him a liar under oath. "I don't think Amendment 15 is a good idea philosophically, so I shouldn't say this because I know it helps the other side," he says. "But that lawyer is right [about the reasons for the drop in donations]."
With Curtis as state GOP chair, Holland says, "you can hear checkbooks slamming shut all over the state."
When Democratic state representative Ken Gordon of Denver approached the stand to testify during the defense portion of the case, he got lost amidst a knot of lawyers and boxes of court documents. Sparr joked, "You ought to know your way to the witness stand," and then noted for the record that he knew Gordon from the days when he was a state district judge and Gordon was a practicing lawyer.
Even without the judge's disclosure, Gordon's testimony went a long way toward betraying his background as an attorney. Despite his belief in campaign-finance reform, Gordon's lawyerly performance on the stand made it clear Sparr has his work cut out for him in trying to pin people down on just what constitutes political corruption.
Gordon refuses to take PAC money, and the defense called him to show that's it's possible to be a successful politician without PAC support. Still, Gordon testified that he's influenced even by the small donations he gets from individuals. "There is no pure way to raise money," Gordon told the court. He added that he pictured political contributions as a sort of a continuum, with bribery at one end, and the act of simply voting for a constituent's best interests at the other.
During cross-examination, Bopp asked Gordon why, if he really believes that donations cause politicians to act differently, he doesn't feel beholden to the people who give him only $20--or, for that matter, merely cast ballots for him. Gordon said that he does but referred again to his theoretical continuum. "That's at the end of the continuum where the system is working," Gordon said.
However, when asked about the other end of the continuum--the bribery end--Gordon pulled his punches. What about politicians he knows personally whose votes have been directly influenced by campaign contributions? Bopp wanted to know. "In my experience there is a connection," was Gordon's entire response.
Gordon says he was afraid to say what he knew to be true: that he has specific knowledge of legislators who've told him that they've cast votes solely to benefit campaign contributors. Even though such testimony would have bolstered the defense case, Gordon chose to clam up. "I didn't go into that because I knew what the next question would be," he says. "They would want me to name names, and I wasn't willing to betray those confidences."
Despite its name, Amendment 15 isn't an amendment to the Colorado Constitution, but a new law. As such, lawmakers can change it at their whim, and they're already trying. The Colorado Senate has already approved a loophole, now being considered by the House, that has Amendment 15 framers up in arms. That measure would allow registered lobbyists to buy tickets to fundraising dinners for legislators or candidates without requiring candidates to list the ticket as a donation. However, if the candidate gets the ticket from anyone other than a registered lobbyist, he or she is obligated to report it as a donation.
Meanwhile, the federal trial is expected to resume Wednesday, April 15, with testimony from former governor Dick Lamm, who has already given a pre-trial deposition that allegedly details undue influence by contributors. A ruling isn't expected for several months; a final decision may be more than a year off. Both sides predict an appeal no matter what.
"This trial has been amazing," says Pat Johnson of the League of Women Voters, who has been called as a witness and describes the proceedings as a crash course in real-world politics.
More often than not, however, the atmosphere, political and otherwise, has been otherworldly. Johnson, for instance, worked as an analyst for the CIA for 25 years, retiring in 1977. When Bopp cross-examined her, his first words were, "I've always wanted to ask this question of someone under oath: Who killed President Kennedy?"
Johnson hesitated, then said, "You'll have to ask me when I'm not in open court." But this trial doesn't need JFK to have drama, she adds. "It has money laundering, abortion, corruption. What else does anybody need?