A federal judge in June struck down Colorado’s distinctive law (earlier) under which any private person could file charges of campaign-finance violations. “That is unconstitutional, the court held, because there is ‘nothing reasonable about outsourcing the enforcement of laws with teeth of monetary penalties to anyone who believes that those laws have been violated.'” The Institute for Justice had represented “Strasburg resident Tammy Holland, [who] challenged the system after she was twice sued by members of her local school board for running newspaper ads urging voters to educate themselves about school-board candidates. Even though Holland was ultimately cleared of any wrongdoing, the lawsuits dragged on for months and cost thousands of dollars in legal fees.” [Institute for Justice press release] Following the ruling, the state quickly moved to institute a new process under which complaints will be vetted, and are subject to closer time limits. [Jesse Paul, Denver Post]
Attorney and Denver Post columnist Mario Nicolais writes that at first he thought Colorado’s privately driven system worked well, until it developed into a vehicle for volume filings settled for cash:
…several groups began filing campaign finance complaints solely to line their own pockets and intimidate political opponents. These groups comb through campaign finance filings looking for any small errors and then exploit the complaint system for their own gain. The director for one of these groups, Matt Arnold, coined his work “political guerilla legal warfare (a.k.a. Lawfare).” …
… Because of the byzantine procedure through which Colorado’s campaign finance penalties compound and accrue on a daily basis, the potential fines threatened by the group regularly reached into the tens and hundreds of thousands of dollars. Even when the only errors involved a couple [of] omitted $3.00 transactions. Consequently, the group knew it could demand payments for $4,500 or $10,000. When defendants didn’t pay, the group threatened that “the beatings will continue until morale improves.”
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“byzantine procedures” and the First Amendment do not work so well.
Putting aside the obvious low-level tyranny that this woman suffered, these sorts of results bring the legal system into disrepute. It is understandable that in most cases, judges do not examine civil settlements, but when courts become vehicles for extortion for political speech, judges should look at these sorts of things. But of course, they do not. Our court system has a great deal of coercive power, and often it is abused. That’s a problem. What answer would a judge have to this woman who asked him or her: “I am out thousands of dollars in fees for speaking–you did nothing. Why is that acceptable?” There is no good answer.
This woman had to play defense. She does not get her money back. She had years of stress and anguish—all because what, she wanted to participate in the political process. This incident beings into sharp relief the utter cravenness of one Barack Obama. The Citizens United case was about the criminalization of political speech. Obama, by his actions, shows that he supports locking people up for political speech, and that, by definition, makes him a threat to freedom.
Donald Trump, unfortunately, seems to have some of the same impulses, but the difference is that he appoints judges that will vigorously enforce the rights granted by the First Amendment.
This would be an ideal place to incorporate “loser pays”.