Proposed Revision Undermining the Will of the Voters

I am writing on behalf of CleanSlateNow Action to share some of our concerns about the revision to the Fair Elections Act offered by Councilmembers Sawyer and Watson.

CleanSlateNow Action is a campaign finance reform advocacy group, and along with CoPIRG, Common Cause, The League of Women Voters, Represent Us, Colorado Ethics Watch, and others, we spent years researching, drafting, consulting with City Council, and promoting the Fair Elections Act – originally known as The Democracy For The People Act – as a citizens’ initiative that we ultimately collaborated with City Council on to refer it to the ballot. 

I appreciate Councilmember Sawyer inviting me to talk with her about the proposed bill, but as I told her when we reviewed the bill earlier this month, this is not a bill that CleanSlateNow Action can support. The stated goals of the bill are completely counter to the will of the voters, who passed the Fair Elections Act with 71% of the vote and an emphatic win in every precinct in the city.

The biggest concern is the counter-intuitive attempt to put more big money back into campaigns after Denver residents unequivocally voted to get big money out of local politics. We were given a draft of the bill earlier this month with a set of proposed increases in contribution limits for those not participating as Fair Elections candidates, and a new version was published last week as part of the agenda for Tuesday’s Finance and Governance meeting with the limits raised even higher – from $400 per donor under current campaign finance law to a proposed $770.20 in the most recent version from the new bill sponsors.  The maximum contribution Fair Elections Fund (FEF) candidates can take under the Fair Elections Act is 1/2 what non-FEF candidates can take, or $200 for district candidates.

The revision seems to be a solution in search of a problem. The results of the survey of Council members by the bill sponsors did not identify any glaring shortcoming in the first cycle under the Fair Elections Act or signal a necessary call to action. The Clerk and Recorder’s survey with more than twice the respondents – including both winning and losing campaigns – yielded similar results.

• 73% of respondents said the Fair Elections Act influenced their decision to run;
• 82% said the Fair Elections Act made it easier to run for office;
• 100% of respondents said they would use the Fair Elections Fund if they ran for office again.

Councilmember Sawyer said the changes in limits were “something that we did based on the experience of non-FEF candidates like myself vs. FEF candidates like the person who ran against me.”  Her subsequent statement that no one else with a similar experience shared similar concerns leaves her campaign as the only example she used to drive the proposed revision.

In the example Councilmember Sawyer provided, the non-FEF candidate raised $71,631.69 in donations while the FEF opponent raised $23,852. The average non-FEF donation was nearly twice the amount of the FEF candidate. Through the Fair Elections Fund, they were able to spend within $1,000 of each other. The non-FEF candidate won the election with 65.3% of the vote to the FEF opponent’s 34.7%. Given the positive outcome for the non-FEF candidate in the only example offered, it begs repeating the question other council members have asked: What is this revision solving for?

While Councilmember Sawyer has claimed “similarly situated candidates are being treated differently,” this is not the case. All candidates are given the same opportunity to opt in as Fair Elections Candidates, and the way candidates choose to fund their campaigns is up to them.  

• All candidates have the option of whether to maintain their higher limits or opt-in as Fair Elections candidates and accept lower limits on donations while giving up PAC and special interest money. It can be tough to give up the larger donations, but the fact that Denver residents resoundingly expressed their desire to get big money out of politics and focus on small-dollar donors makes it a worthy challenge to accept, knowing that opting-in reflects the values expressed by the voters.

• Denver residents felt so strongly about the importance of focusing on lower-dollar donations that they voted to invest $2 million a year to provide matching funds on donations up to $50 from Denver voters to enable all candidates with demonstrated community support to have access to the ballot without the requirement of first needing access to private wealth and special interest dollars.

• The source of the donations is significant, and $450 from a single donor or special interest PAC is not equal to $450 from a voter-approved municipal donor match. Voters wanted to take out the outsized influence of wealthy donors, PACs, and special interests and invest municipal funds in ensuring fair elections that minimize the influence of larger donations. Proposing to allow non-participating candidates to raise their contribution limit from $400 for a council district candidate to $770.20 from a single donor or special interest PAC defies logic. How does that respect the will of Denver residents and their decision to make Denver elections more fair and equitable by eliminating corporate and large-dollar donations and by authorizing municipal funds to help improve access to the ballot from a diverse field of candidates more accurately reflecting the population of our city?

• The proposed “solution” to a “problem” that hasn’t been identified would undermine the expressed will of the people, undo their Fair Elections Act, and return big money to Denver elections in direct opposition to the ordinance adopted by 71% of Denver voters.

We have additional concerns about the unconventional approach to tracking changes – the bill sponsors never provided a red-line version of the proposed revision to the code – making it nearly impossible to identify what has changed. We found at least 48 changes in the language in a 9-page sample, many substantive, all unmentioned – and probably unintentional. We are concerned about unintended consequences from a rushed process that lacks transparency.

We also have concerns about the way the restrictions on the use of campaign funds has been handled. 

• Denver campaign finance law already prohibits the use of campaign funds for any purpose that is not a legitimate campaign expense directly tied to the campaign’s purpose of electing a candidate to office.

• If Council wants to further specify what is and what is not a legitimate campaign expense, they should be doing so for all candidates, including candidates not participating as Fair Elections candidates alongside candidates who or are participating as Fair Elections candidates. To establish two classes of candidates with two sets of rules about how candidates of different classes can use their campaign funds would be a step backwards in terms of establishing equity in Denver elections.

• The bill sponsors have argued that city employees are restricted in how they spend city funds, but candidates for office are not city employees. When the city provides matching funds from the Fair Elections Fund, those funds become campaign funds and are subject to the same regulations and restrictions as any candidate’s campaign funds. Voters did not ask for municipal funds to be treated any differently than campaign funds are treated across the board.

• The restrictions are redundant in prohibiting the use of campaign funds in ways that are already prohibited. If greater specificity is desired, Council should approach that from a perspective that applies to all candidates competing in the same arena for the same position.

Regarding both topics of Debates and Hearing Officers, the Clerk’s Office has already taken steps to address the issues the proposed revisions seek to address, and we would encourage Council to trust the Clerk’s Office as they fully implement the changes in the second cycle of Fair Elections.

The banning of anonymous contributions is a good move, but it’s not clear that the intended result is achieved, given inconsistent and probably unintentional changes to the language.

The significant issues with nearly every aspect of the revisions make it impossible and irresponsible to approve the bill as written, and we urge a “No” vote if the bill is introduced in the Finance and Governance Committee or, at a later date, to City Council as a whole.

Councilmember Torres – City Council President at the time – put it well when the bill was under discussion at the June Budget and Policy meeting.

“This was a citizen-initiated effort that voters approved,” Councilmember Torres said. “I remember the clear objectives were getting candidates who would reject corporate dollars and diversifying the pool of candidates who could run and who saw that as a potential for themselves. Anything apart from a legal or administrative issue feels like the people who won making personal judgments on what the next group of people who run would be able to tap into or not, which feels a little exclusive. I would caution us on any of that.”

Thank you for your attention to our concerns as Denver residents active in bringing forth this significant campaign finance reform introducing publicly funded elections to Denver. I’m happy to speak further with you about these issues or any other concerns that come up regarding the Fair Elections Act. We anticipate an ongoing process of refining the legislation from cycle to cycle to make it stronger and more effective, but we urge a “No” vote on revisions that so clearly counter the will of Denver voters.

Sincerely,

Owen Perkins
President, CleanSlateNow Action
(303) 881-8881 (cell)