Just one week ago, a federal court in Colorado held that the state’s system for enforcing its campaign finance laws was unconstitutional. Moving quickly, the Colorado Secretary of state has enacted temporary enforcement rules, effective immediately.
Under the new rules, any person may file a complaint, just like under the old system. However, the rules now include three protections that attempt to prevent abuse of the system for political purposes.
First, before referring a complaint for a hearing, the Secretary of State’s office will now review all complaints to determine whether the complaint actually identifies a violation and whether it alleges sufficient facts to support the alleged violation.
Second, the Secretary of State can now offer the targets of complaints a chance to “cure” minor violations instead of referring the matter for a hearing.
Third, the Secretary of State’s office is now responsible for conducting discovery and prosecuting the complaint, ending the private attorney general system that existed under the old rules (though complainants may still offer amicus curiae briefs and seek judicial review of the administrative hearing).
In a welcome move for current respondents, all pending complaints and hearings not yet decided will be remanded for Secretary of State review.
In addition to these enforcement changes, the new rules also establish a formal system for seeking advisory opinions on campaign finance issues.
There will almost certainly be more changes coming to Colorado campaign finance law– these rules are only temporary, and the legislature will take up a permanent enforcement solution in 2019. It remains to be seen whether lawmakers take that opportunity to make substantive changes in the law as well.