19 February 2009

Colorado Amendment 54 Litigation Continues

The Colorado Independent has a lengthy update on the progress of litigation in invalidate Colorado Amendment 54, a "pay to play" measure passed by Colorado voters last November.

Colorado Amendment 54 amends the state constitution in a way that largely precludes not only public contractor businesses, but relatives of public contractors, public sector unions and people affiliated with non-profits that receive state grant money from financial involvement in electoral politics. It also bans public contractors from making campaign contributions in areas broader than simply ballot issues for projects upon which they intend to make bids.

The primary issue in the case is whether these campaign finance restrictions, which must be narrowly tailored to legitimate governmental issues to be valid despite First Amendment protections for free speech, are constitutional. The nexus between many of Amendment 54's requirements and pay-to-play conduct is very weak. Multiple commentators, including yours truly, suggested before voters even approved Amendment 54 that on the merits, Colorado Amendment 54 appears to go beyond what is permitted by the First Amendment.

Multiple collateral issues are also relevant to the case.

The Plaintiffs, like those in all public law cases, must first show that they have sufficient individualized harm from Amendment 54 to give them standing to bring suit, must establish that the issue is ripe for court resolution in the absence of any enforcement action, and must navigate the question of taking on the statute "on its face" which entitles it to more deferential review, or "as applied" which leads to more searching review of the statute's constitutionality but requires a showing that the Amendment has indeed been applied in a particular way. Many suits challenging the constitutionality of statutes and state constitutional provisions, end up delayed, as the litigation concerning Colorado Amendment 41 gift ban did, or dismissed, over these kinds of general public law issues.

Another issue is the Plaintiffs manage to clear these hurdles at the trial court level, is whether any preliminary injunction preventing the law from being implemented, will be issued during the pendency of the litigation.

Then, there is the issue of a remedy on the merits of the suit, if there is some win for the Plaintiffs.

There is little doubt that the core provision of the Amendment, which prohibits public contractors from making contributions in connection with ballot issues funding projects upon which the will bid would be constitutionally valid, standing alone. A similar statute was upheld in Connecticut.

But, a key question is what the remedy should be if the Plaintiffs prevail in having some or all of the rest of the statute declared unconstitutional. A court could invalidate the entire Amendment, could "blue pencil" Amendment 54 by invalidating only "severable" unconstitutional parts of Amendment 54, could interpret the Amendment in a judicially binding way that while not necessary the plain reading of the law gives it a meaning that would be constitutional, or could provide some combination of these remedies.

In sum, absent a consent decree, and the Colorado Attorney General, who is defending the case, has signaled an unwillingness to go that route, the Amendment 54 litigation will probably be with us in Colorado for a long time.


Steve Balboni said...

Do you have any thoughts on the possibilities of an injunction? I'm being told that an injunction could come down as soon as April. It's almost time to start gearing up for 2010 and A54 is the turd in the fund raising punch bowl for campaigns.

Andrew Oh-Willeke said...

After Amendment 41 (where a preliminary injunction was reversed on appeal and that case was remanded for further discovery and for Independent Ethics Commission action), a trial court may be gun shy on that issue.

If I were a Plaintiff, I would seriously consider not asking for one, in order to get a full record on the merits to support me before creating an appealable issue.

A permanent injunction after a trial on the merits in say, September, might be strategically wiser, than putting the case on hold based upon only a preliminary injunction hearing in April. This would allow donations to made made pre-election without fear of a need to remand them if an appellate court acted otherwise, before any appellate ruling, and would force an appellate ruling to address the merits once and for all, rather than bobbing and weaving on procedural points.