Maurice Emmer: Guest opinion

The Aspen Times
Aspen, CO, Colorado

Two important elements have been neglected in the discussion of the Aspen City Council’s effort to change our campaign finance law so the source of even small campaign contributions must be reported to the city.

First, it is unconstitutional to enforce even Aspen’s existing campaign-finance law against some resident groups. That is what the U.S. Court of Appeals for the 10th Circuit (including Colorado) decided more than two years ago.

In Colorado, if at least two people in concert spend at least $200 to affect a state ballot question, they’re an association characterized as an “issue committee.” Contribution and spending reporting requirements apply. These include a requirement to report information about contributions of at least $20. Violations are penalized. Existing Aspen city law is virtually identical. A problem with Colorado law is a problem with Aspen law.

In 2010, the U.S. Court of Appeals decided the above Colorado and by implication Aspen rules violated the First Amendment right of association as enforced against one particular “issue committee” (Sampson v. Buescher, 625 F. 3d [10th Cir. 1247]).

In that case, a small group spent less than $1,000 urging action on a ballot measure. Colorado enforced its rules against the group; the 10th Circuit held enforcement of the entire reporting scheme, not just the $20 threshold, violated the group’s right of association.

Would it be unconstitutional to enforce a more stringent Aspen law against a group like the one in Sampson? Absolutely, since the entire reporting scheme is unenforceable against such a group.

The 10th Circuit recognized that the reporting rules are intended to prevent anonymous political messaging (the same excuse council offered for amending our rules). It found that purpose an insufficient excuse for suppressing political association. The court quoted with approval from a New York court: “The identity of the source is helpful in evaluating ideas. But the best test of the truth is the power of the thought to get itself accepted in the competition of the market. … People are intelligent enough to evaluate the source of an anonymous writing. … They can evaluate its anonymity along with its message, as long as they are permitted, as they must be, to read that message.”

Councilmen have said it isn’t right to contribute to campaigns anonymously. They want a rule tougher than the state’s rule. That is a moral, not a legal, judgment. Courts decide the legality, and the 10th Circuit has done so.

Many of our councilmen exhibit little understanding of the legal issues. On several occasions, councilmen have claimed inadequacy to evaluate legal issues and have deferred to those with legal training. What happens if those with legal training purposefully give incomplete if not incorrect legal interpretations? Among those advocating the change is the one member of council with legal training. With him leading the charge without regard to the constitutional aspects, what are the other councilmen to think?

This raises the second element that has not been discussed. Can the city attorney be relied upon to advise council evenhandedly about the constitutional issues of the existing and amended ordinance? We probably won’t know because council typically won’t reveal the city attorney’s advice, hiding behind claims of attorney-client privilege (which could be waived by council). This deprives the public of the opportunity to evaluate whether he is providing sound advice.

Consider the irony: Council seeks to prohibit anonymous messages whose substance all can see and evaluate; it hides from public view the substance of advice it receives from a known source (city attorney). In other words, it is OK for council to make decisions without enabling citizens to see and evaluate their basis, but it’s not OK for voters to receive anonymous political messages that can be seen and evaluated by all.

The city has gotten into legal problems many times before at great taxpayer expense by following undisclosed legal advice that later proves unreliable. This dysfunctional behavior should stop. Council should exercise prudence for a change, stop wading into legal territory it doesn’t understand and leave well enough alone.

Maurice Emmer is a retired attorney who lives in Aspen.