In Paul Grant's experience, few things are as costly as free speech. It must be paid for again and again.
John Johnston
Attorney Paul Grant battled Colorado's restrictions on petitions all the way to the U.S. Supreme Court -— and won twice.
Mark Manger
Mark Grueskin has been the go-to guy for groups fighting citizen initiatives — or trying to get their own issue on the ballot.
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Thirty years ago, Grant moved to Colorado from Louisiana, determined to shake things up. He was an engineer and a Libertarian activist, barely out of his twenties, when he decided to run for Congress against incumbent Democrat Tim Wirth. He collected the necessary signatures to petition his way onto the ballot — but was quickly thrown off after Wirth's people objected.
At the time, a state law required an independent candidate to be registered as an independent for a year prior to the election. Grant hadn't been in Colorado that long, and he knew that federal law prohibited such restrictions for federal candidates; a U.S. representative merely has to be 25 or older, a citizen and a resident of his or her state at the time of election. So Grant went to court and ended up getting the law changed.
He went on to challenge Wirth in two elections and Governor Dick Lamm in another. But he soon ran afoul of Colorado election law again — and the Teamsters, the Public Utilities Commission, a trucking tycoon and other powerful interests — when he got involved in a modest effort to open up the state's transportation industry to more competition.
With the aid of a like-minded friend, Grant had launched a small organization dedicated to promoting free enterprise. Deregulating the trucking business, which was controlled by a few big haulers that received great deference from the PUC, seemed like a good place to start. The situation had led to virtual monopolies, including NW Transport, a trucking company owned by future Colorado Rockies owner Jerry McMorris. Removing the industry from PUC control would, in theory, allow smaller operators easier access to the market. Grant started circulating a petition that would put the issue on the ballot.
The effort had two serious problems from the start. One, Grant didn't have nearly enough volunteers to gather all the required signatures. Two, many of the people who supported deregulation were afraid to sign or donate, out of fear of retaliation by the PUC, the Teamsters, or the big companies that dominated the market.
"We ran into a lot of people who expressed support but said they couldn't do anything publicly," Grant recalls.
The backers looked into paying people to gather signatures, but Colorado law made it illegal to pay petition circulators. Grant was convinced that, like the residency requirement for federal candidates, the law was simply wrong. The First Amendment protects speech, particularly political speech, and courts have repeatedly recognized the citizen's initiative process as one of the most sacred forms of political speech.
Grant hit upon what he considered an elegant solution. He hired an "advocate" to speak in favor of the petitions while a volunteer collected signatures. Then the two would trade places every hour: The volunteer would get paid a wage for advocating, while the advocate would volunteer with the clipboard for an hour.
"I was clearly paying for the speech," says Grant, deadpan. "In my mind, I had separated the two activities. But Colorado found it devious, and there was a complaint filed — by a transportation attorney trying to protect the monopoly."
The Office of the Attorney General sent an undercover agent to infiltrate the campaign. Grant was served with a complaint and faced an administrative hearing and possible felony prosecution. The petition drive was stopped cold.
Grant sued in federal court, lost at the trial level, lost again 2-1 on appeal. His attorneys sought a review of the case by the entire Tenth Circuit Court of Appeals, which overruled the previous panel and declared Colorado's ban on paying petition circulators unconstitutional. The state appealed that decision to the U.S. Supreme Court — and was crushed 9-0.
"Colorado's prohibition of paid petition circulators restricts access to the most effective, fundamental, and perhaps economical avenue of political discourse, direct one-on-one communication," wrote Justice John Paul Stevens. "The First Amendment protects [petitioners'] right not only to advocate their cause but also to select what they believe to be the most effective means for so doing."
The landmark 1988 decision Meyer v. Grant mowed down similar bans in several states. "It opened up paid petitioning around the country," Grant notes.
Local officials were far from pleased with the decision. Then-secretary of state Natalie Meyer complained that the Supreme Court just didn't understand the problems Colorado was having with petition fraud. Before long, state lawmakers had come up with a set of new restrictions on petition circulators, requiring them to be registered voters (effectively banning professional circulators who traveled from state to state); to wear special badges that would identify them as paid or volunteers; to disclose what they were paid and who was paying them; and much more.
Grant, who'd gone to law school by this point, decided to challenge the new rules in collaboration with the American Constitutional Law Foundation, a local think tank championed by alternative-fuel guru Bill Orr ("Nobody's Fuel," September 4, 2008). Once again, the wrangle went all the way to the highest court in the land. In 1999 the Supremes voted 6-3 to strike down the most burdensome aspects of Colorado's law, including the registration, badge (the "scarlet letter," as Grant calls it) and financial-disclosure rules, as unwarranted intrusions on free speech.
