Clear the Bench's Matt Arnold: Court win for CO Ethics Watch a victory for big $ over little guy

The political pissing match between Colorado Ethics Watch and Clear the Bench Colorado, which wants to throw the bums off the state's supreme court, was resolved on Friday in CEW's favor. Granted, CEW will have to pay some court costs from a July hearing -- but Clear the Bench's Matt Arnold remains upset about the ruling and would love to appeal it. If only doing so wouldn't cost him so much time and money.

Here are the basics of the dispute, as originally spelled out in the May 6 post "Clear the Bench's Matt Arnold Calls Colorado Ethics Watch Complaint a 'Pathetic Political Ploy:'"

Clear the Bench registered as an issues committee -- a designation that places no limit on donations, although such gifts aren't tax deductible. But CEW felt Clear the Bench should have filed as a political committee subject to donation limits, because "judges are defined as candidates in Amendment 27," Colorado Ethics Watch director Luis Toro said in May.

Nonsense, countered Arnold, who pointed out that Secretary of State's office representatives had recommended the issues committee filing in the first place. Last May, he dubbed the complaint CEW filed against his organization over the disagreement "a pathetic political ploy by Colorado Ethics Watch to scare off donors and intimidate us. But we're not going to run away from the legal hucksterism they're trying to do."

During the first hearing, Administrative Law Judge Robert Spencer ruled that CEW had filed its complaint prematurely, before judges were required to declare their candidacy. For that reason, Ethics Watch was ordered to pay Clear the Bench's legal fees pertaining to the initial procedure, held in July. But CEW refiled the complaint on the meat of the matter -- and after a September 15 hearing, Toro says Spencer decided that Clear the Bench should have registered as a political committee, not an issues committee.

"I think it's a horrible decision," Arnold maintains. "The judge pretty much ignored all the testimony from the Secretary of State's office. There were reams of documented evidence laying out the fact that the Secretary of State's office, after much deliberation, concluded that Clear the Bench is, was and ought to be an issues committee, and that the rules for issues committee do, should and ought to apply to Clear the Bench Colorado."

The judge disagreed -- but because Arnold was following the advice of a state office, Clear the Bench was not ordered to pay a penalty. Toro said such a fine was never the point. Instead, CEW merely wanted to establish the precedent, so wealthy individuals with a grievance against a particular judge couldn't finance an attack campaign with unlimited funds. Arnold doesn't buy this argument.

"In his initial attacks, Luis Toro trumpeted quite loudly his allegation that Clear the Bench should be subject to thousands of dollars of fines," Arnold allows. "CEW was pretty clearly rebuked by the judge about that, and also in his ruling in July, where he sanctioned CEW for their frivolous, groundless and vexatious complaint."

Toro believes the amount of those fees should be fairly small, since he believes they only pertain to the early filing, not the other facts in the case. Arnold's not so sure about that.

"Toro and CEW owes us quite a bit of money dating back from July," he feels. "Although, ironically enough, the judge gave CEW as much or more time to cough up that money as he's given Clear the Bench to refile as a political committee. That's adding insult to injury from my perspective."

In the meantime, Arnold says, "The big issue here is that this ruling is a real assault on accountability and transparency when it comes to judicial retention elections. Luis Toro trumpets this as a great victory for keeping big money out of those elections, but the opposite is true. This guarantees that hidden big money will be even more influential in future judicial-retention elections."

How so?

"Clear the Bench has been completely open, transparent and accountable," Arnold stresses. "We've followed all the rules, and all our contributions are available for review by the public. There's is no question of any corruption, no question of any undue influence or quid pro quo. It's all out there. But these groups that are supporting retention of judges in office, including CEW, don't account for their contributions and expenditures," because they "hide behind the fiction of their actions being an educational effort. CEW says they're advocating for ethics when we all know very well that their purpose is really to attack groups with which they don't agree. That's why this is a victory for big money over the little guy."

At this point, Arnold can either refile as a political committee or file an appeal -- and in his opinion, "the right thing to do is to file an appeal. It's an unjust ruling, and it should not stand. But the question is whether I'll have the resources and the time to do that because of this very late, fourth-quarter change in the rules of the game. It's going to make it very difficult for me to fight this -- and of course, that's been their intent from the beginning."

Not that he plans to halt his campaign.

"There's a myth being promoted by CEW and this coalition of legal-establishment special-interest groups that there are no politics in judicial merit selection and retention. There is a vast amount of politics, but all of the politicking that's been going on in the nominating commissions, in the so-called performance review commissions that come up with these bogus evaluations, has been hidden.

"They're intensely political -- and like cockroaches, they're not terribly fond of sunlight being shined on their activities. That's why you see such a large, concerted effort to attack Clear the Bench Colorado and our efforts to bring this out into the light. But we're not going to stop."

Page down to see Clear the Bench's release about the ruling:

Judge's ruling against judicial reform group Clear The Bench Colorado undermines transparency, accountability in judicial retention vote

Judge's ruling favors entrenched incumbents and big-money special interests

Late last Friday afternoon, Clear The Bench Colorado was stunned by the news that Administrative Law Judge Robert Spencer (as an executive branch employee, answerable to the governor and not subject to a retention vote himself) set aside the documentary evidence, testimony by Clear The Bench Colorado Director Matt Arnold along with the Elections Division director at the Colorado Secretary of State's office AND the clear letter of the law to rule in favor of "Colorado Ethics Watch" (CEW, pronounced "sue" -- it's what they do) in what the same judge had earlier characterized as a "frivolous, groundless, & vexatious" attack (er, "campaign finance complaint").

Despite reliance on over a year's worth of guidance issued by the office of Secretary of State (as confirmed in numerous documents and in witness testimony provided in hearings on 15 September) reached after "numerous" internal policy meetings and much research that Clear The Bench Colorado was, is, and ought to be properly characterized as an "Issue Committee" under campaign finance rules; CTBC's scrupulous compliance with all rules, regulations, and reporting requirements for over a year; and dismissal of CEW's earlier complaint as "frivolous, groundless, and vexatious" -- the judge changed course and found for CEW in their latest round of attacks, changing the rules in the final quarter of play.

Changing the rules at such a late date -- mail ballots go out at the same time Clear The Bench Colorado has been directed to re-file as a political committee -- and in direct contravention of the guidance upon which CTBC has relied for well over a year makes a mockery of the process of citizen civic engagement. As noted by Clear The Bench Colorado lead attorney Scott Gessler,

"That's just crazy, that ruling," said Gessler. "What kind of crazy system is that, when you can't trust what the Secretary of State tells you? [This ruling] means you have to hire a lawyer to do anything- to get involved at all in the political process." (Colorado Independent, 9/25/2010)

From documentation provided by the office of Secretary of State:

Colorado campaign finance and Judicial retention

While judges are considered "candidates" for the purpose of campaign finance law in Art. XXVIII Sec. 2(2) of the Colorado Constitution, the question of the retention of a judge is a yes-or-no question. Therefore, a committee organized for the purpose of advocating the retention or removal of a judge is advocating for a yes or no vote on that question, rather than advocating for the election or defeat of a candidate. A committee organized for such a purpose is akin to a committee advocating for (or against) the recall of an elected official, which would register an issue committee under 1-45-108(6), C.R.S. To that end, a committee established for the purpose of supporting or opposing the retention of a judge or judges is properly registered as an issue committee for campaign finance purposes. Such an entity would not be considered a political committee, because political committees are established for the purpose of "support[ing] or oppos[ing] the nomination or election of one or more candidates" (Art. XXVII Sec. 2(12)(a)).

Adding insult to injury, the judge's ruling is granting "Colorado Ethics Watch" (CEW, pronounced "sue" -- it's what they do) more time to pay Clear The Bench Colorado what they've owed since July than time for Clear The Bench Colorado to re-file under "political committee" status or to appeal the ruling.

Naturally, Colorado Ethics Watch" (CEW, pronounced "sue" -- it's what they do) is trumpeting the ruling as a great victory, declaring in a press release Friday:

"The law does not permit a wealthy few to unduly influence the judicial retention process through large contributions against judges and justices whose rulings they don't like. Ethics Watch prevailed today in setting precedent to keep big money out of judicial elections..."

Ironically, the ruling "achieves" the exact opposite: big-money special interests will now be more prone to attempt to influence judicial retention elections behind the scenes, using vehicles other than the open and accountable "Issue Committee" organization types such as Clear The Bench Colorado.

In fact, big-money legal establishment special-interest groups are already active this year in promoting a "retain" vote for judicial incumbents (including, prominently, the three Colorado Supreme Court justices appearing on the ballot this year). They're just significantly less honest about their intentions...

In a campaign that has been conspicuous for its LACK of big-money interests and "large contributions" (Toro is whining about two -- TWO! -- contributions exceeding $500), acting with complete transparency and absolute accountability to educate voters as to their right to hold judicial incumbents accountable for their performance in office, and to shed light on the records of judicial incumbents at the highest levels in order to provide substantive information on which voters can base an informed decision, CEW's attacks (and the judge's ruling in this case) do the Colorado electorate a great disservice.

CEW's Toro is right about one thing: "Judges are... subject to corruption" via the influence of big-money special interests keeping them in office.

The expenditure of tens of thousands (if not hundreds of thousands) by legal establishment special-interest groups comprised of the very lawyers appearing before the judges they are supporting in office is much more likely to exert "undue influence" and raise the potential for "quid pro quo" corruption.

The Colorado Bar Association (COBAR) has already spent over $50,000 this last month (by their own admission) joining three other legal establishment special-interest groups (likely spending a similar amount, although the exact figures have not been made publicly available) in mounting an "education" campaign (electioneering without using the "magic words" of "vote yes" or "vote NO") to prop up incumbent judges and justices. In one month alone, they've spent more than CTBC has in a year. Combined, these special interests are spending hundreds of thousands of dollars in television, radio, and print ads providing "nonpartisan information about the performance of judges seeking retention" that, curiously, ALL supports a "retain" vote.

Another effort, sponsored by prominent Democrat attorney Mark Grueskin and other partisan attorneys (the "Colorado Judiciary Project") is also spending large amounts (again, because this group formed as a "social welfare organization" their expenditures are NOT publicly available) supporting the judicial incumbents before whom they argue cases. Conflict of interest? Nah!

Ironically, these legal special-interest efforts come on top of hundreds of thousands of taxpayer dollars used to produce and distribute the one-sided and shallow "evaluations" perpetrated by the (taxpayer-funded) commissions on judicial performance evaluation -- which, again, advocate 100% of the time to "retain" Colorado Supreme Court justices in office.

NONE of these expenditures -- hundreds of thousands of dollars to promote the retention of judicial incumbents in office -- are transparent and accountable to the public.

Did Friday's ruling really succeed in "setting precedent to keep big money out of judicial elections..."?

Hardly. It just provided cover for the big money that's already comfortably ensconced in the process -- erecting additional roadblocks to shedding light on the fact, and restoring accountability to the judiciary.

Clear The Bench Colorado has been consistently open, honest, and above-board in educating the public, and has scrupulously followed the rules under Colorado campaign finance laws for well over a year. Forcing CTBC to re-file under a different set of rules - changed in the final quarter - makes a mockery of justice.

Yet another reason that now more than ever -- it's time to Clear The Bench, Colorado!

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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts