CleanSlateNow Action's Stance on Fair Elections Amendments

Here is our take on the six features originally laid out by the sponsors, with the three pieces we suggest commenting on marked with a * and the most important concern marked with **:

(*) Ban Anonymous Donations

• We suggested this change while working with the Clerk’s office on a clean-up bill last year, and we are happy to see this proposed change for the Fair Elections Act. Every municipality we have worked with to pass campaign finance reform since Denver passed the Fair Elections Act has banned anonymous donations. Anonymous contributions deprive voters, residents, and the campaign finance office from being able to track how candidates are funding their campaigns, and we encourage the banning of anonymous campaign contributions in Denver elections.

(**) Spending Restrictions and Prohibited Expenditures

• This is the most troublesome proposed change in the bill to amend the Fair Elections Act. We don’t have a problem with the proposed restrictions, and we believe most of them are already covered for all candidates by the Fair Elections Act’s original language, mirroring previous, standard language which prohibits the use of campaign funds for anything other than “the purpose of influencing an election.” We do have a problem with restricting how those opting in for Fair Elections can use their campaign funds without applying the same restrictions to all candidates. If the greater specificity the sponsors seek is a good idea, then it should be applied across the board. If it can’t be applied across the board, it shouldn’t be applied to only some candidates. Either an expenditure is a legitimate campaign expense, or it is not. All candidates should be held to the same standard when it comes to how they spend their campaign funds.

• The new restrictions would prohibit the purchase of alcoholic, marijuana, tobacco products, and prepaid credit or gift cards of any kind, gifts valued over $50.00, payments of fees, fines, or penalties to the city, or reimbursing contributors for their contributions, and participating candidates will have to reimburse the city for funds used to purchase personal or real property valued above a threshold amount determined by the clerk’s office (covering purchases like laptops, for example).

•  We don’t object to adding restrictions to the use of campaign funds, but we do object to setting up two standards of acceptable campaign expenditures, particularly for a bill that aims to simplify and unify the code.

• While the Fair Elections Act was intended to elevate potential candidates who might not have the same access to wealth that was previously necessary to run for office, this amendment applied only to Fair Elections candidates treats these candidates as second-class, some lower order of candidate that needs to be restricted. Campaign expenditures are either legit or they are not. They can’t be legit for some folks and not for others, for some campaign funds and not all campaign funds.

• It is though we are saying – as the sponsors have said in committee meetings – that we don’t want campaign funds spent on these items, but it’s too hard to get the "A-list" candidates to comply, so we’ll make a show of restricting the “lower class” candidates, the "B-list," because we can, because we have leverage over them. If a given function is not legit, restrict it. If you can’t restrict it across the board, let it go.

• The sponsors argue that because city employees are restricted from spending city funds on the restricted items above (alcohol, etc.), candidates running for office and thereby seeking to become city employees should have their campaign funds subject to the same restrictions as city employees face with city funds. But these candidates are not receiving funds as an employee of the city, they are being given voter-approved matching campaign funds to use like any candidate for municipal office can. We urge City Council to remove this component of the bill unless it can be equitably applied to all candidates for municipal office.

(*) Neutralizing Debates

• This is a deceptive heading since debates have always required neutrality. Nevertheless, this section addresses the biggest actual problem we faced in the first cycle under the Fair Elections Act. Though debates were required to be ADA accessible during the 2023 cycle, there was at least one case when the venue for a debate was not accessible. The sponsors and other council members are trying to strengthen the requirements around debates, but they have not finalized a plan yet. They are considering options including contracting with Channel 8 or another independent contractor, and they have given estimates ranging from $150,000 to $330,000 in new costs to do so. (There were essentially no costs last cycle since the debate sponsors took on any costs.)

• The bill sponsors have proposed paying the new debate expenses out of the FEF, which was meant to cover anticipated costs in matching contributions and administrative expenses, namely employing campaign finance staff members to oversee the implementation and management of the Fair Elections component of elections. The estimated costs are higher than the amount of money that remained in the FEF at the end of the cycle in 2023, so using FEF funds to take on a new, unanticipated expense that the bill sponsors are pursuing would jeopardize the matching funds available for candidates.

• We would like to see council provide clarity on imposing additional expenses, and we would suggest that funds to replace community sponsors with a contracted agency or agencies should come from sources other than the FEF.

• Denver voters approved a funding mechanism based on the estimated matching funds and administrative costs associated with the FEF, and to add a significant new cost without providing a source for additional funding to cover those costs is detrimental to fulfilling the original intent of the voters. 

• Otherwise, discussions around debates seem to be making progress, and we’re confident the Clerk’s office has taken steps to ensure there are no lapses in accessibility in the future. Ensuring accessibility is probably the most important of the proposed changes, addressing the only issue that was in fact a problem during the last cycle. We are approximately 18 months from the first FEF matching funds payout, and roughly two years from the FEF debates, so there should be no urgency to rush this through before getting it right.

• We would like to see it done correctly and don’t feel that the plan is fine-tuned to the point that it’s ready to be passed as part of the ordinance. We encourage council to take the time to get this piece right, and we urge resolving the unanswered questions about the debate plan before passing an ordinance with unclear consequences, unknown costs, and unidentified funding sources.

Unify and Simplify the Election Code

• The sponsors state that the existing language is confusing and cumbersome. We didn’t hear of candidates being confused by the language during the first cycle with the Fair Elections Act. The new language has been extremely hard to evaluate because the sponsors did not offer a traditional redline draft that tracks each change in language. Reorganizing the ordinance doesn’t, on its own, do any damage, but we have noticed several minor changes in language that have bigger consequences than may have been intended. We are continuing the laborious task of cross-checking their unwieldy drafting method to identify any significant changes in language that are hidden through their process, rather than highlighted through a traditional redline process that clearly tracks the changes.

Administrative Hearing Officers

• This is another component that seemed to be an attempt to fix things the Clerk’s office has already fixed. The Clerk’s office has been integrally involved in the discussions about all the proposed changes in the bill, and they are happy with the language they have negotiated in this area, as are we. It’s not clear that the changes address existing problems or improve the hearing process, but neither do the changes damage the process.

Equalizing Maximum Contributions

• This was the most troublesome of the original proposed changes, restoring big money to the coffers of candidates who do not opt in for Fair Elections, and thanks to your actions, it has been completely eliminated from the bill.

I am writing you in regard to the most recent proposed changes to our campaign finance laws by Councilmembers Sawyer and Watson. Unfortunately, I will not be able to attend Tuesday’s Finance and Governance committee as we will be conducting the first round of a required Risk-Limiting Audit of the General Election results. However, representatives of my office will be present and prepared to answer questions on my behalf. 

First, I wish to express thanks to Councilmembers Sawyer and Watson, as well as Assistant City Attorney Anshul Bagga for including our input over the past month to make changes to the initial draft of the bill that we could not support. We appreciate the openness to our feedback and collaboration. Unfortunately, despite that work, the bill is not in a form we can support at this time for the reasons listed below. 

Contribution Limits 

This bill makes changes to voter-approved contribution limits and adds new restrictions on Fair Elections Fund candidates. These changes require a supermajority to pass. Our office believes that we can uphold the spirit of the Fair Elections Fund with or without these changes, but we caution that this is a departure from the intent of the program’s sponsors and voter intent. The voters chose to lower contribution limits to reduce the influence of money in politics. The bill increases contribution limits for most candidates, with the largest increase for candidates who do not participate in the program. 

Drafting and collaboration process 

While we acknowledge there is room for improvement to Denver’s campaign finance regulations, we feel strongly that a complete re-write is unwarranted. The bill sponsors have explained that no redline was provided because the entire section was rewritten, which unfortunately makes it extraordinarily difficult to sift through word-forword and ensure items weren’t inadvertently removed or reworded in a way that could have unintended consequences. While my office and our City Attorneys have worked diligently in the midst of the General Election to review multiple drafts over the past month, we did not receive the latest version until Wednesday afternoon. The existing draft still does not show amendments to current law, and the latest version includes changes we were not notified of or consulted on. We remain very concerned about the scope of changes, unintended consequences, and drafting errors. 

Timing during the Nov 5 Presidential Election 

The proposed bill draft does not modify any upcoming campaign finance deadlines, and thus there is no pressing timeline by which it must be considered. It is well known and understood that our office resources and time are focused on delivering secure and accurate elections for the 2024 Presidential General Election, which include conducting post election audits and certification as required by law. We have asked the sponsors multiple times to delay this bill out of respect for our administration of the 2024 Presidential General Election to provide us additional time to thoroughly review and suggest changes, but those requests have been denied. 

We appreciate that the sponsors have said they will continue to accept non-substantive changes from our office after committee. However, if the bill is presented to the Finance and Governance committee on Nov. 19, we respectfully request that the Finance and Governance committee vote against moving the legislation forward at this time. Please feel free to contact me if you have any questions. 

In Solidarity, 

Hon. Paul D. López, Clerk and Recorder 

City and County of Denver