Avoiding impertinent, abusive and irrelevant questions about ballot issues was the right thing to do.
By Seth Richardson
Douglas Bruce, the implacable and much-hated foe of liberal Progressive tax-and-spend big government ideologues everywhere tried hard to avoid being dragged into court to answer impertinent and irrelevant questions about who was behind the now-defeated Amendments 60, 61 and 101. It was a valiant effort that ultimately failed just weeks before the election, when his attackers, Coloradans for Responsible Reform, in the corpus of their attorney Mark Grueskin, succeeded in linking him to the ballot issues in the press.
Bruce insisted that his involvement in the ballot issues was a matter of First Amendment free speech not subject to Colorado’s campaign finance laws, and that his opponents were attempting to drag the issue into court on a fishing expedition deliberately intended to manipulate the vote by impugning the ballot issues by linking them to Mr. Bruce in a blatant personal attack. Bruce was precisely correct in this characterization of the successful witch-hunt by Grueskin & Company.
Now, Democrat Rep. Beth McCann of Denver is proposing amendments to the campaign finance laws to make it more difficult to avoid such fishing expeditions. Quoted in the Denver Post on Friday, December 10, McCann said, “It’s from the charade that went on last year with Doug Bruce avoiding service and making it very difficult for the case that was brought to determine who was financing those three initiatives. It seemed like Doug Bruce was just thumbing his nose at the court system.”
Well, yes, he was, and rightfully so, because the court system was being abused to the benefit his political opponents. Bruce made it “very difficult” for Grueskin to serve him with a subpoena to appear for a deposition, but he did so within the law, as demonstrated by the fact that a contempt citation against him was dismissed.
Nothing in the law requires a defendant to cooperate with the efforts of opposing counsel to serve legal process, and if the papers aren’t properly served, the defendant is under no legal obligation to appear. It’s the plaintiff’s problem to get the defendant properly served, and if he can’t do it, too bad. That’s how it’s always been, and how it should remain.
And, it turns out that Bruce was correct in insisting that who funds or supports a ballot issue is none of the public’s business. So says the United States Circuit Court of Appeals for the Tenth Circuit, in a decision handed down just days after the November 2nd vote.
In a Colorado case that addressed whether a small group of homeowners who spent less than $800 campaigning against an annexation ballot issue in Parker, Colo, (Sampson v. Buescher), violated Colorado’s campaign finance laws, the Court held that as applied to ballot issues, Colorado’s law is unconstitutional.
The three-judge panel said, “Without question, Colorado election laws place burdens on the right to associate to support or oppose ballot issues.” Then the Court went on to explain why disclosures of campaign funding for candidates and for ballot issues have different constitutional justifications.
Citing Supreme Court precedents, the panel came to the obvious conclusion that unlike potentially corrupt politicians who may abuse the public trust by acting in favor of campaign donors, ballot issues cannot be the subject of such quid-pro-quo corruption because they cannot exert any influence other than what is stated in the law itself.
“…when a ballot issue is before the voter, the choice is whether to approve or disapprove of discrete governmental action, such as annexing territory, floating a bond, or amending a statute. No human being is being evaluated. When many complain about the deterioration of public discourse—in particular, the inability or unwillingness of citizens to listen to proposals made by particular people or by members of particular groups—one could wonder about the utility of ad hominem arguments in evaluating ballot issues. Nondisclosure could require the debate to actually be about the merits of the proposition on the ballot. Indeed, the Supreme Court has recognized that “[a]nonymity . . . provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent.”"
Citing a Supreme Court case, the panel took notice of the historical presumption that the voters are capable of examining and analyzing the merits or deficiencies of a ballot issue itself, without reference to the character or political popularity of the proponents.
“But the best test of truth is the power of the thought to get itself accepted in the competition of the market. Don’t underestimate the common man. People are intelligent enough to evaluate the source of an anonymous writing. They can see it is anonymous. They know it is anonymous. They can evaluate its anonymity along with its message, as long as they are permitted, as they must be, to read that message. And then, once they have done so, it is for them to decide what is responsible, what is valuable, and what is truth.”
This is exactly correct. Indeed, it’s good public policy because in the case of ballot issues, it is the focus on the character of the proponents rather than the issue itself that is abusive of the system. Good government depends upon careful scrutiny of the actions of government that are authorized by ballot issues, not upon the public perception of the quality or character of the proponents or opponents. Effective civil discourse on the subject of laws or government actions must focus on the act itself, otherwise the true effects and extent of government authority is masked in the fog of ad hominem attacks.
And that is precisely what Grueskin and Coloradans for Responsible Reform achieved with their abuse of the legal process, in cahoots with the Bruce-hating liberal Press, who focused on the whack-a-mole antics of the process servers trying to find Mr. Bruce while studiously avoiding any substantive discussion of the ballot issues themselves.
The ongoing controversy about Bruce’s involvement in Amendments 60, 61 and 101 prove the utility and necessity of the 10th Circuit’s ruling. Bruce is still facing a trial in Denver District Court over the mess. Hopefully he’ll persuade the District Court of the wisdom of the 10th Circuit Court of Appeals’ ruling and the case will be dismissed. It certainly should be.
Grueskin and the Coloradans for Responsible Reform’s witch-hunt for Douglas Bruce should further serve to expand the 10th Circuit Court’s ruling to exempt all proponents or supporters of ballot issues from disclosure rules.
Why? Well, in part because requiring disclosure on the part of supporters of a particular ballot issue violates their fundamental right to a secret ballot, and in some cases places them in physical danger from opponents.
Precisely this sort of threat was recently observed in California, where the names and addresses of people who signed petitions in favor of Proposition 8, which reserved the term “marriage” for use by heterosexual couples, were subjected to harassment and physical and economic attack after their names were posted on the Internet by radical gay activists.
Just as one’s vote is to be kept secret, one must be allowed to anonymously support ballot issues. This anonymity is essential to our fundamental liberty to be free of coercion and harassment for our political opinions and votes.
While requiring disclosure in the case of candidates has at least some (but not much) legitimate governmental objective of reducing the potential for quid-pro-quo corruption, that rationale simply does not apply to ballot issues.
Who supports a ballot issue is, and should be, no one’s business, and certainly not the business of the public. Only the merits of the issue are important, and they are supremely important, so any law that serves to shift the focus of the public debate away from the language of the ballot issue itself must be repealed in the interests of good government.
The abuse of Douglas Bruce, and the abuse of the political process perpetrated by Grueskin’s clients is ample demonstration of why Rep. McCann’s proposal must not only be defeated, but why the General Assembly should take action to explicitly exempt campaign contributions or actions in support of ballot issues from the campaign finance laws.
© 2010 Altnews