By Matt Masich, LAW WEEK COLORADO
DENVER — The Colorado Supreme Court ruled this morning that Amendment 54, passed by the state’s voters in 2008, is unconstitutionally vague and overbroad. The amendment banned sole-source government contract holders from making political donations, and banned their broadly defined immediate family members from making contributions on their behalf.
“[W]e find the Amendment’s deficiencies so pervasive that we must nullify the Amendment in its entirety,” the 4-1 majority ruled, holding that the ballot measure violated the First Amendment. Justice Nancy Rice wrote the opinion, with Chief Justice Mary Mullarkey and Justices Michael Bender and Gregory Hobbs concurring.
Justice Alex Martinez dissented, writing that the unconstitutional portions of Amendment 54 can be discarded, “leaving behind a meaningful enactment, albeit reduced in scope.” Justices Nathan Coats and Allison Eid recused themselves and did not participate in the opinion.
The amendment, championed by Republican CU Regent Tom Lucero with support from the conservative Independence Institute, was pushed as a move to end pay-to-play politics. Critics said it was designed to curtail political contributions from labor unions.
Two groups of plaintiffs, one composed of unions and the other of nonprofit leaders, filed a lawsuit against the state challenging the amendment shortly after it took effect in January 2009. The plaintiffs said the amendment unjustly prevented them and their families from making political donations.
Denver District Court Judge Catherine Lemon issued an injunction stopping the amendment from being enforced until an appellate court could rule on it. The Supreme Court’s ruling today effectively struck the amendment from the state constitution.
“The authors of Amendment 54 tried to silence political speakers they don’t like, but they ran into a little roadblock called the First Amendment and, fortunately for all of us, they have failed,” Mark Grueskin, attorney with Isaacson Rosenbaum who represented the union plaintiffs, said in a statement.
“Amendment 54 would have restricted the political speech of thousands of individual Coloradans and organizations, and we are pleased that the Supreme Court agreed,” said former Colorado Supreme Court Justice Jean Dubofsky, who represented the nonprofit plaintiffs. Doug Friednash and Michael Davis of Greenberg Traurig also represented these plaintiffs.
Lucero, who managed the campaign to get Amendment 54 passed, called the decision “tremendously disappointing,” though not surprising
“We were hopeful that the whole thing would be upheld,” Lucero said. “We modeled it after a number of other states that wanted to address the issue of pay-to-play and transparency in government and competitive bidding.”
Lucero, who is running for the Republican nomination to challenge U.S. Rep. Betsy Markey in Congressional District 4, said he doesn’t have time to push another pay-to-play ballot initiative but would be “absolutely supportive” if others try it.
John Suthers, Dan Domenico and Maurie Knaizer of the attorney general’s office represented the state.
“We knew this was going to be a tough case going in,” said Mike Saccone, spokesman for the attorney general’s office. “We were aware Amendment 54 has some cause for constitutional concern, so the Supreme Court’s decision today was not unanticipated.”
Today’s decision is likely the final death knell for the amendment.
“Hypothetically, it could go up to the U.S. Supreme Court,” Saccone said. “However, at this point it’s unlikely.”
Both the opinion and the dissent are published below.
In other coverage:
Pueblo Chieftain: In a ruling released today, the Colorado Supreme Court struck down Amendment 54, the 2008 constitutional amendment designed to bar campaign contributions from anyone who has sole-source government contracts. The court said the amendment, which won narrow approval by voters, violated the First Amendment’s right to free speech as it relates to campaign finance law.
Associated Press: The Colorado Supreme Court has upheld a decision by a Denver judge to put a hold on most of a voter-approved ban on some political contributions, siding with unions and nonprofit groups that challenged it as unconstitutional.
The Denver Post: A voter-approved Constitutional amendment barring campaign contributions from unions and some state contractors was today ruled unconstitutional by the state Supreme Court. The decision wraps up a 16-month-long fight over the constitutionality of a law that opponents said curbed free speech rights and which threatened to chill donations to political candidates.