Tenth Circuit Invalidates Colorado Law That Lets Contributors Give Twice as Much Money to a Major Party Candidate than to Anyone Else

On January 23, the Tenth Circuit overturned a Colorado campaign finance law that lets contributors give $400 to a candidate for the legislature who is nominated in a primary, but only $200 to a candidate who is nominated in a minor party convention, or with the independent candidate petition procedure, or who is a write-in candidate. The decision is Riddle v Hickenlooper, 13-1108, and is written by Judge Robert Bacharach, an Obama appointee, and co-signed by Judge Neil Gorsuch, a Bush Jr. appointee, and Bobby Baldock, a Reagan appointee. UPDATE: here is a newspaper story about the decision.

The decision overturns the U.S. District Court decision, which had upheld the law. Although all three Tenth Circuit judges agree, Judge Gorsuch wrote separately to discuss the appropriate level of scrutiny. The basis for the decision is equal protection. It is very rare for minor parties, independent candidates, and their supporters, to win a constitutional election law case on equal protection grounds; most laws striking down ballot access restrictions and other laws that injure minor parties and independents are won on First Amendment grounds.

The decision equivocates on whether the law is subject to strict scrutiny, or intermediate scrutiny, but concludes that the law is unconstitutional under either standard. The panel’s decision says, “Here the state of Colorado has created different contribution limits for candidates running against each other, and these differences have little to do with fighting corruption.” The concurrence says, “The only reason I can imagine for Colorado’s challenged contributory scheme is a bald desire to help major party candidates at the expense of minor party candidates…A state cannot adopt contribution limits that so clearly discriminate against minority voices in the political process without some ‘compelling’ or ‘closely drawn’ purpose – and Colorado has articulated none.”


Tenth Circuit Invalidates Colorado Law That Lets Contributors Give Twice as Much Money to a Major Party Candidate than to Anyone Else — No Comments

  1. If Colorado were to adopt the Top 2 Open Primary it would resolve the problem. The fundamental cause is that different candidates are treated differently based on how they seek election.

    Under Top 2, you could have a limit of $400 for the whole election cycle. It would be up to the candidates to determine how and when they expend it.

  2. Top 2 is one more EVIL bogus *reform*.

    When will SCOTUS detect the EQUAL in 14th Amdt, Sec. 1 applying to EQUAL ballot access laws and gerrymander math ???

    How many VAGUE adjectives and adverbs in ALL of the MORON election law court cases since 1968 ???

  3. You don’t need a top two to reign in donations. The legislature could just change the law, which isn’t likely to happen.

  4. But Richard…why does this matter? You’re already on record as believing campaign spending doesn’t have any effect at all on how people vote, right?

  5. Your statement is not true. I have said that if a candidate has enough money to get our his or her message, and it is a winning message, than that candidate doesn’t need to outspend every opponent. The Colorado law prevents a candidate from raising the money needed to get out the message.

    My example was Jesse Ventura, who had a good amount of money when he was elected Governor of Minnesota. He had a decent amount of money because he and the Reform Party had public funding. So he was able to win, notwithstanding that he was outspent 10:1 by each of his major party opponents.

  6. With Top 2, the legislature would be forced to permit all candidates to have the same funding opportunities.

  7. Ahh…Jesse Ventura again.

    Tell me Richard, if Ventura’s low budget campaign is the model for success, why has there been no stampede toward campaigns which raise only “a decent amount of money” to get out the candidates’ “winning” messages?

    Was Lee Atwater wrong? Is it only the positive message that wins voters’ hearts? Is that your belief? I didn’t watch “Hillary: the Movie” to its end. I ran out of popcorn. But now I wonder…was there a segment in there toward the end somewhere telling viewers about how wonderful Mitch McConnell’s politics are?

    In this decade, if a candidacy like Ventura’s got within sniffing distance of a lead in the polls, Super PAC money would bury it. Humphrey and that other nitwit made a political miscalculation and ignored Ventura, but that doesn’t validate the absurd contention that money doesn’t influence the outcome of elections.

  8. I’ve never said money doesn’t influence the outcome of elections. I’ve said that after a certain amount of money is raised, even more money is often not helpful and can even be counter-productive. In 2010, Meg Whitman, Republican nominee for Governor of California, outspent Jerry Brown 4:1. That excess of money, over $100,000,000, didn’t help her at all. It probably hurt her, because of all the publicity about how much she was spending.

    Some states have voter pamphlets that are mailed by the government to all the voters. They contain statements by the candidates. This is a very good idea, and if every state did that, and didn’t charge the candidates for their ballot statement, the need for lots of money would decline even further. Public funding, if it is not discriminatory, would be another very helpful reform.

  9. Oh Richard…really!

    Go back and read your own posts. You accused me of thinking the American voting public is “stupid” because I think their votes can be influenced by massive spending on behalf of (or more particularly, in opposition to) a candidacy.

    Somehow, the wealthy people who collectively spend billions trying to influence the outcome of elections don’t seem to be as enlightened as you are.

    Stupid, stupid wealthy people.

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