The Case For Having Political Parties Take Direct Action

I am a minor Democratic party official, a "precinct organizer" in my neighborhood. I've previously served as the county treasurer of the Democratic Party of Denver. I've waded my way through almost all parts of the Democratic party organization, attending multiple state conventions and assemblies and county party reorganizations. I've also seen the legislative process up close, as an intern in Congress in college, and as a law partner of a state legislator in a two partner law firm.

U.S. political parties are, by design, weak and historically haven't been trusted. The U.S. has one of the most candidate centered political systems in the world and pushes political parties to the side as much as possible, despite their central role in the legislative process and as organizing forces in the electoral process.

U.S. political parties have only limited control over who runs under their banner in elections. Political parties have some money that they can use to support their candidates in elections, but the U.S. campaign finance system heavily favors funding individual candidates and ballot issues, in particular elections, over campaign finance mediated by political parties. Political party platforms aren't worth the paper that they are printed upon and are almost completely disregarded by the officials holding elective office whom that political party helped to get elected. 

In many municipal elections, all candidates are non-partisan and political parties are removed from the process entirely.

Colorado's political parties are stronger than average. They play an outsized role in nominating candidates for elected office through the caucus-county and district assembly-state convention process. And,  most vacancies in state elected officers are filled by vacancy committees made up of political party officials. But, Colorado political parties still usually raise only barely enough money for their bare minimum operating expense requirements and contribute little money to getting their party's candidates elected.

Also, in Colorado, like both major political parties in almost every U.S. state, political parties engage almost entirely in a single activity - participating in electoral politics by trying to nominate good candidates with the right political agendas, and by trying to get out the vote for those candidates come election time.

This is important work. And, because it is important work, a county like Denver, with about 250,000 voters who are registered to vote as Democrats, manages to convince several hundred voters who are registered to vote as Democrats to do what it takes to get the job of trying to elect Democrats to elected office done at the grass roots.

But, like most non-legislative wings of major political parties in the U.S., a lot of that volunteer effort is squandered on long, cumbersome, bureaucratic meetings at which the party organizes itself into several layers of political party bureaucracy at the block, precinct, sub-house district, house district, senate district, congressional district, county, and state levels. Immense effort is thrown into soliciting and compiling resolutions and party platforms that are ultimately passed as an after thought and ignored by the elected officials who actually exercise power within the party. The meetings are many hours long, and become an exercise in mastery of Robert's Rules of Order, related to internal organizational matters of only marginal importance.

Some of it is mandated by state law and is unavoidable. But, much of it elaborates the required structures to a far greater extent than is required by law.

The somewhat rigid organizational structure of the party, which tracks the rather involved long ballot structure of the partisan elected offices in a typical U.S. state, also creates a situation where inevitably, some places have lots of people who want to be involved but there is a shortage of positions to utilize them, and other places have positions in the structure that go vacant or are only intermittently filled.

The focus on filling pre-ordained slots in this political structure in long, parliamentary procedure filled meetings also undermines potential resources of people who would like to be politically active in another way. Almost all people who want to be politically active care passionately about policy and changing the way that our world works for the better. But the tasks that political parties have for them to perform does little to nurture and satisfy these passions and connect the work they are doing to the larger causes that they care about.

But, while political parties must play a role in nominating candidates and even filling vacancies in political offices, nothing requires them to limit themselves to this bare minimum.

In the 19th century, political parties also routinely engaged in various forms of direct action. They sponsored newspapers. They had "ward healers" who went out in the community to help people, often immigrants, who might otherwise fall through the cracks because they didn't understand how to access government programs or because there were no government programs that directly addressed certain needs in the community. They helped unemployed people find jobs. They helped grieving families with no money conduct funerals for a deceased family member. They connected people who had legal claims to lawyers who could enforce those rights. They connected disgruntled workers with union organizers and helped elected officials identify work place problems that legislation could solve in way more organic and effective that modern "town meetings" that are often held only for show. They connected people who had various needs to government and charitable programs that addressed those needs, that the people in need were unaware of. They helped people deal with recalcitrant bureaucrats and red tape with the assistance of elected officials from the party in what is now known as "constituent service" and is usually mediated directly through elected officials. They did all manner of favors to directly address people's needs and in exchange won the loyalty of people in their communities.

In places like Denver, we are already very good at keeping turnout high and reliably in favor of Democratic candidates for public office, and for vetting those candidates. And, the demographic makeup and underlying attitudes of people in a large central city mean that even when the party is run in a mediocre manner, its candidates are still going to win elective office. It may be very inefficient and squander potential volunteer efforts and enthusiasm, but it has a base of party members large enough that it can achieve its core purpose despite its outdated, cumbersome, and inefficient structure.

But, it could do better. It could streamline the bureaucratic processes to a bare minimum, dispensing with some of the generic and unnecessary parts of Robert's Rules of Order based proceedings by tailoring them to its narrow task. It could centralize the level at which volunteer efforts are organized so that excesses of volunteers in places where they are available could more naturally be diverted to the places where their efforts are needed the most. For example, rather than organizing at the precinct level, it could make the based level of its organization the house district and have house district level party officials, collectively, carry out the tasks of precinct organizers for the entire house district.

But beyond that, county and state political parties could engage in more direct action and coordination. It could develop corps of modern day "ward healers" to help people who have trouble navigating complex bureaucratic governments or just fall through the cracks. It could arrange regulate meetings between those ward healers who have encountered the problems people are facing on the front lines in their daily lives with elected officials and constituent service staffers for them who have the power to address through problems from positions of power over government workers and through new legislation, if necessary. It could arrange meetings between ward healers and other charitable organizations and people like immigration and personal injury lawyers to help them know where to turn when people have particular needs that government doesn't currently address.

The most acclaimed Democratic Party political leader in recent times, President Obama, got his start as a community organizer. And, every county Democratic party political organization should follow his example and have community organizers, who might also be ward healers, who help communities come together to identify problems that can be solved, in part, through direct action, in part, through legislative action, and then help those communities to solve the problems that the community identifies.

Maybe in a county where this is needed, that may mean helping women who aren't aware of what is available, learn about and gain access to reproductive health providers like Planned Parenthood. 

Maybe a community needs help finding ways to put young men who aren't in school and are unemployed find paths for themselves that don't involve gangs and crimes (something that has been identified as the main problem driving the COVID era crime surge that was often attributed to police brutality protests instead).

Maybe a community needs to organize to protect tenant's rights, or to help people re-entering the community from incarceration to get government issued IDs, or to locate legal representation for low income people with immigration issues.

These are volunteer opportunities that would be snapped up by people who care deeply about policy issues and want to make a difference, and would make it worth the while of those volunteers to also devote some time to the unavoidable minimum of bureaucracy and the bureaucratic process.

And, these volunteers would also be energized by the opportunity to share what they have learned from their direct action, directly with elected officials in a way that so often is reserved for paid lobbyists in the status quo.

Actions speak louder than words, and this kind of activity would also dramatically increase the credibility of the Democratic party with people who accuse the party of conspiring with Republicans on behalf of monied interests insure that change doesn't happen, when in reality, they are thwarted by gridlock in a system designed to strongly favor the status quo over political change most of the time due to the other party's ability to stymie their efforts, especially at the federal level which is most visible.

Political tactics like widespread incorporation of direct action, community organizing, and facilitating the flow of information between common people on the front lines and elected officials, could help the party achieve a level of dominance and effectiveness that few people today imagine could even be possible, just as the political machines of the 19th century did using similar tactics.

Of course, I'm not advocating a return to the cheating, corruption, and political violence that 19th century political machines used to achieve their ends. But none of those things are inseparable from the concept of having political parties do more than play a supporting role in an electoral process that is fundamentally designed to be candidate driven.

Also, if this kind of direct action could increase the credibility of political parties generally as constructive and positive contributors to the political process. Public opinion might grow more favorable towards giving political parties are larger role in selecting their own candidates and in funding their campaigns for public office.

The Scope Of The Franchise And Voting Habits Have Consequences

tl;dr 

The American system of representative democracy utterly ignores the needs of people who don't vote  (such as children, young people, non-citizens, institutionalized people, and people of color), not because it is a flawed implementation of a pure model of representative democracy, but because it is working as a pure representative democracy is intended to. There are, however, some reforms and policies and approaches that can mitigate the harms caused by these intrinsic flaws of representative democracies.

The Political Theory Context

Critiques Of Representative Democracy Due To Flawed Implementation

It is trendy in political discussions these days to focus on the ways in which, in U.S. politics, the desires of the people (often summed up by the preferences of the median person eligible to vote) are undermined, in the formal electoral and legislative process, undermining a pure representative democracy model.

Two of these flaws receive particular attention in discussions of our political system.

The undue influence of money in politics that undermines pure representative democracy.

Sometimes, this undermined by monied special interests, often described as "corporate" (when what is really the heart of their ire is the influence of the rich and the influence of big business on politics without regard to their actual corporate form of organization), especially through campaign contributions and political spending.

Discrepancies in electoral laws and legislative rules from pure representative democracy.

Sometimes, this is undermined by subtle flaws in the design of our the formal electoral and legislative components system like the electoral college, unequal representation of U.S. states relative to population in the U.S. Senate, the filibuster and other anti-democratic U.S. Senate rules, gerrymandering, the use of single district plurality voting with primaries instead of systems like "instant runoff voting", bad U.S. Supreme Court rulings that become entrenched, and abuses of Presidential powers like the veto power, the pardon power, and executive branch discretion to undermine the intent of Congressionally enacted legislation or resolutions.

Unfair political tactics that undermine pure representative democracy.

Sometimes, this is undermined by unfair political tactics. 

One of the most common unfair political tactics is when political candidates and people advocating for them, lie to and misleading voters, in the course of political campaigns and political discussions, in ways for which they are not held accountable, when this causes voters to vote for candidates and ballot issues that select outcomes that those voters do not actually favor.

Problematic Implications Of Representative Democracy When It Works As Intended

The focus in political discussion on problems with representative democracy that undermine pure representative democracy diverts attention from the fact that our flawed representative democracy works as intended to a much greater extent than is widely appreciated. 

Also, many people who participate in political discussions and debate have only a dim understanding that "perfect" democracy and a political economy that produces a "good society" are not naturally produced by pure representative democracy. The very ideal of pure representative democracy is itself flawed.

(Note that the concept that there is such as thing as a "good society" distinct from what democratic majorities favor is an idea that I take as an axiom for the purposes of this post as this deontological political concept is beyond the scope of this already long and theoretical post.)

As a result, people pay less attention to the problems with our system of formal representative democracy at the electoral and legislative level when it works as intended.

Core Tenants Of Pure Representative Democracy

One the theories within the realm of political theory, which is generally empirically accurate, and is at the heart of the American representative electoral and formal legislative democratic process is that the formal American political process causes the government to adopt policies that reflect the preferences and interests of the people who vote for elected officials who are the people who have an ultimate say over what policies are adopted.

At a superficial, shallow and naive level, this seems like a good thing and is what most people mean when they argue in favor of making representative democracy work as intended. But, even pure representative democracy is only a means to an end and has its own inherent flaws even when it works as intended, as discussed below

The Median Voter Theorem

The most direct description of the American political process working as intended, which also has quite a bit of empirical support, is the median voter theorem. The median voter theorem is that: "a majority rule voting system will select the outcome most preferred by the median voter."

A Pure Representative Democracy Selects For Outcomes Favored By Voters And Not Meaningfully Opposed By The Median Voter

A more subtle aspect of the political system tending to reflect the policy preferences of people who vote is that lots of policy choices that benefit one minority subgroup of voters are not strongly in conflict with the outcomes preferred by the median voter. There are lots and lots of issues and policies upon which the median voter has no clear opinion or preference.

When the preferred outcomes of non-majority groups of people who vote do not conflict meaningfully conflict with the preferred outcomes of the median voter in ways that policy makers can comprehend, these outcomes also tend to be selected. This is true even when the non-majority groups of people who vote tend to not vote for the candidates who win when voting for elected officials.

Indeed, in our slightly "flawed" actual representative democracy relative to a pure representative democracy model (in a reality that is not necessarily bad), intense outcome preferences of non-majority factions of voters often (contrary to the political theory of the Federalist Papers) often prevail in having their preferred outcomes selected over the weak outcome preferences of diffuse majorities and the median voter.

The Corollary Is The Outcomes Favored By Non-Voters Are Almost Completely Ignored

There is no representative democracy in which everyone who is subject to the governments policy choices votes. 

The Franchise Is Not Universal.

The scope of the franchise (i.e. the right to vote) has expanded dramatically since representative democracies first came into being in the early modern period in Europe, but there is no representative democracy that includes everyone, and it is necessarily true that there never will be one that does.

Children, people who are too incapacitated to vote, non-citizens, citizens who reside somewhere that doesn't have elected officials allocated to them, certain people who are incarcerated or have civil disabilities from past convictions for crimes, and entities that aren't natural persons, aren't legally entitled to vote in some elections. It will never be the case, for example, that babies get to personally cast ballots in elections because they lack the ability to do so.

Not Everyone Who Has A Right To Vote Does Vote.

There will also always be people who have the right to vote, but do not do so.

Sometimes people spoil their ballots and deny themselves meaningful vote, or fail to cast a ballot by mistake or due to inadvertence.

Sometimes people are busy and stressed and don't vote as a result, even if they would like to, because the would be voter can't allocate that time and those resources to do so when this provides no immediate benefit to the would be voter, and produces no immediate penalty to the would be voter.

Sometimes people don't vote (at all, or in a particular political race or on a particular ballot issue) because it takes time and resources (e.g. from media source access to mental space to think about something) to understand the choices on the ballot in a way that would reflect the would be voter's wishes, and the would be voters can't allocate that time and those resources for something that provides no immediate benefit to the would be voter, and produces no immediate penalty to the would be voter.

Sometimes people don't vote because the election doesn't seem salient to them, or they don't feel that their vote will make a difference. And, sometimes they are right about this conclusion when it comes to the direct election outcomes of the vote they could have cast. For example, a vote for President in a state that leans strongly in favor of one candidate or the other in today's winner take all electoral college system, won't change the outcome.

Sometimes people don't vote or spoil their ballot as an act of protest against the political system in general.

The Outcomes Favored By Non-Voters Are Almost Completely Ignored

In a pure representative democracy model, political theory concludes, in a conclusion that has empirical support, outcomes favored by non-voters are almost completely ignored, no matter how intense they may be, relative to the slightest whim of the median voter or when the median voter is indifferent, to the whim of any non-majority group of voters who has an opinion about an issue.

The fact that a representative democracy favors the preferred outcomes of non-majority groups of voters whom the median voter does not particularly oppose is most strikingly revealed when the extent to which outcomes salient to them are selected is compared to the extent to which the preferred outcomes of non-voters, no matter how intense, are selected.

Agency, Trusteeship and Indirect Impacts

This doesn't mean that anyone's interest are utterly and completely ignored in a pure representative democracy or a real one, just that they are highly marginalized.

The interests of non-voters aren't completely ignored, even though they are highly marginalized, because voters may acts as agents or trustees by preferring outcomes that benefit non-voters, either selflessly out of moral obligation, although usually much less intensely than their own personal self-interest, or because the well being of non-voters has indirect impacts on them even though the impact on a voter is much less intense.

For example, a voter might favor an outcome that is preferred by a homeless non-voter, either out of moral obligation that the voter feels towards the homeless person, or because the person's homelessness indirectly impacts them by reminding them that their city allows people to sleep on the streets which makes the voter feel guilty. But, these moral and indirect influences on the outcome preference of voters are much less intense than those of homeless people themselves, who have an extremely intense life or death interest in policies related to treatment of homeless people.

Footnote: Indirect Impact Through The Median Voter Theorem

The indifference of representative democracy to non-voters is also manifested through the median voter theorem discussed above. The preferences of non-voters doesn't enter into to the determination of who the median voter is, while the preferences of a voter, even one whose viewed differ from the median voter, shifts the determination of who the median voter is in favor of people whose preferred outcomes are more similar to theirs than they would be if that voter had not voted.

For example, suppose that the median voter is electing representatives who decide how much money to spend on public schools per student, a continuous policy variable, and voters favor a range of values spread almost continuously on a curve from $500 per student to $30,000 per student. If 20% of voters who otherwise wouldn't have voted favor spending of $30,000 per student, the funding among favored by the median voter will shift from the 50th percentile preference of the other 80% of voters to the the 62.5th percentile of the other 80% of voters. This might, for example, shift the outcome selected, to the extent that the median voter theorem holds true, from $5,000 per student to $7,500 per student. Thus, even though the 20% of voter who wouldn't otherwise have voted don't get their preferred policy outcome, the fact that they voted will increase per student spending on public schools by 50%.

The Empirical Reality Of Representative Democracy Working As Intended For Non-Voters

As I note above, in the political theory part of this post, for all of the American flaws of the American political process relative to pure representative democracy, it is usually true that the formal American political process causes the government to adopt policies that reflect the preferences and interests of the people who vote for elected officials. And, this sometimes impedes our ability to secure a "good society."

Colorado, which has a system of representative democracy that is closer to pure representative democracy than all but a handful of U.S. states, for a variety of reasons including low levels of corruption relative to most other state governments, a healthy political culture, and reforms to the formal electoral and legislative process that have not been adopted elsewhere, is a good place to illustrate this fact.

In the American political system, and in Colorado, in particular, people who don't have the right to vote get absolutely screwed in political policy making on a systemic basis over long periods of time.

These people include children (especially children without parents who vote who can be a proxy for them in the political process), non-citizens, disenfranchised people with felony records, and people who are institutionalized (such as some mentally ill or otherwise institutionalized people).

Furthermore, groups of people who have the right to vote but, on average, don't exercise it very consistently (often due to barriers in the process or society that exist to their ability to do so) like young people, the poor, the homeless, and people of color, get seriously slighted. 

But, people who vote reliably like homeowners in rural and suburban areas who regularly attend church, and senior citizens, tend to have their political preferences overrepresented.

Potential Remedies To The Intrinsic Flaws Of Pure Representative Democracy

There are various ways to reduce the intrinsic flaws of pure representative democracy. These include taking some of the following steps from this non-exclusive list:

* Expand the franchise, for example, to non-citizens who reside in a place with elected representatives, to people with criminal records, and so on.

* Reduce barriers to getting information needed to cast a meaningful vote (something that Colorado does well) and to casting ballots (something else that Colorado does well).

* Decentralize decision making so that more than more people get outcomes closer to their preferences because the median voter in their local area has preferences closer their own than the median voter in a more centralized decision making unit of government. But, federalism is an imperfect solution because some policies need to be implemented uniformly at a high level to be effective, and it harms non-majority people located in a smaller decision making unit, and it harms people who don't reside in that jurisdiction who are visiting that area.

* Enact bills of rights and protect other legal rights like private property and contract rights vis-a-vis majoritarian political decision making to preserve key deontological moral principles that the political process is intrinsically prone to ignore. Pay particular attention to protections from discriminatory policies directly particularly a non-voters.

* Remove certain kinds of policy decisions from the majoritarian political realm and instead vest them in the non-majoritarian economic realm and the non-majoritarian intrafamily and religious domains. Milton Friedman was right in his observation that allocation of power in favor of the rich and powerful relative to the poor and the weak, is usually more unequal in the political sphere than it is in the economic sphere.

* Develop a political culture in which moral empathy and concern for non-voters is high, and the indirect impacts of policies that help non-voters are better and more widely understood. 

* Give representatives of non-voters power in forums outside the political process. These include, for example, the diplomatic rights of foreign countries to act for the benefit of their expatriates, and the power of non-profits and lawyers enforcing fiduciary duties in a fiduciary capacity (perhaps in class actions or public interest litigation) to legally enforce legal rights of non-voters and to demand fairness in the treatment of non-voters.

* Give extra votes to people who are good proxies for non-voters so that the interests of non-voters can receive more weight (especially on continuous variable policy decisions like budgeting decisions). For example, parents might be able to cast votes for the minor children, guardians of adults might be able to cast voters for their adults, and sponsors of legal immigrants might be able to cast votes for the non-citizens whom they have sponsored. But, this is an imperfect solution since these proxies would never be perfectly selfless in their voting choices and will never perfectly and definitionally understand the true preferences of those for whom they are proxies.

Blaha and Frazier Fail To Make Colorado GOP Senate Primary

The primary in the race to be the Republican candidate to oppose incumbent Democrat Michael Bennett will have just two candidates:

* Daryll Glenn, an African-American former military office who was the sole candidate to make it on the ballot via the caucus process (and who will command the top line on the ballot as a result) who has raised almost nothing for his campaign so far, and

* Jack Graham, a retired insurance salesman and former CSU athletic director who has raised more money than any other candidate and is one of the most liberal GOP candidates in the state (and was a Democrat until not so long ago), who got onto the ballot by Petition.  By the end of March he'd raced about $300,000 and loaned himself another $1,000,000, although a big chunk of that was spent to get on the ballot via the petition process.

Neither of them have ever previously held any elected office.  CORRECTION: Glenn in an El Paso County Commissioner.  Graham is a first time candidate.  I apologize for the inadvertent error. Glenn's political experience may give him an edge over Graham in addition to his conservative bona fides.  Advantage Glenn. END CORRECTION.

These are the only two candidates who will appear on the ballot because the other three candidates who tried to petition onto the ballot Keyser, Blaha and Frazier all failed to submit enough signatures to the Colorado Secretary of State to get on the ballot.  Both will probably appeal this decision, but Blaha and Frazier each have bigger shortfalls than Keyser did and will be hard pressed to win an appeal.

An unnamed legal expert thinks Keyser will get back on the ballot when a judge rules in his challenge tomorrow.  I am far more skeptical.

Primary election ballots must be turned in by voters by June 28, 2016, and given Colorado's penchant for mail in ballots, many will be cast far sooner.  The remainder of the Republican U.S. Senate campaign in Colorado, now that we finally know who will be on the ballot (subject to appeals in the next few days) will be highly compressed.

The primary will tell whether conservative politics and political experience (which clearly favor Glenn) or money and name recognition (which favor Graham) matter more in the GOP primary.

Incumbent Senator Michael Bennet has lots of things going for him in this race.  He has a mountain of campaign funds.  He has more and more relevant political experience than either candidate.  He can legitimately say that anything that the unpopular Congress has done is not his fault.  He can benefit for Hillary Clinton's coattails and from the generally higher Presidential year voter turnout that usually favors Democrats.  He has a statewide campaign network in place and ready to go.  He doesn't have to fight off a primary contestant so had can campaign as a moderate Democrat just as he has governed.

On the other hand, neither Glenn nor Graham are your run of the mill Republican candidates. The political winds seem to be favoring outsiders this year.  And, no race other than the Presidential race will get more free media this year in Colorado, so a lack of funds is somewhat less of a handicap.

Still, both of these candidates are clearly from the Republican B team and both face long odds to win in November this year.

And Then There Were Four

Just one candidate for the GOP nomination to the U.S. Senate race in Colorado against incumbent Democrat Michael Bennett made the June 28, 2016 primary ballot via the caucus process: Darryl Glenn, who made his career as a military officer before retiring.

Four more candidates have tried to Petition onto the ballot. So far, one has made it, Jack Graham (the retired CSU athletic director and insurance salesman, not the famous Texas pastor), a moderate Republican who used to be a Democrat (who made it onto the ballot even though 43.4% of his signatures were invalidated), and one has failed, John Keyser.

At valid petition must signatures from 1,500 signatures in each of the state's seven Congressional districts from registered to vote Republicans who have not signed any petitions previously reviewed by the Colorado Secretary of State Williams (who happens to be a Republican) in the race.

Keyser was 86 signatures short in the Third Congressional District and 29.8% of his signatures were found to be invalid. Keyser has five days to appeal the decision and plans to do so, but he has less than even odds of prevailing in that attempt.  He would need to validate 6% more petition signatures to get on the ballot.  What went wrong?

"A prolific signature gatherer wasn't registered in the district he/she was supposed to be registered in," said one source close to Keyser's campaign. "So the sigs were 'valid' but collected by the wrong person.” . . .  One-third of Keyser's rejected signatures were thrown out because of problems with the petition circulators, not the petition signers themselves, according to documentation from [Colorado Secretary of State] Williams' office.

Two more candidates: Robert Blaha (a Colorado Springs businessman who has never held political office) and Ryan Frazier (a former city councilman from Aurora) are still waiting to have their timely submitted petitions reviewed by the Colorado Secretary of State.  Announcements for each of those campaigns are expected later this week.

This is good news for Darryl Glenn, leaving him one less competitor. This is bad news for Jack Graham, who needs to split the vote of Republican conservatives to have a shot at the nomination.

And, it may give Blaha and Frazier chills because high invalidation rates and the fact that someone who signed more than one Petition will be invalidated in their count even if it was valid in a previous count, means that it will be a close thing for either to be found to have a valid petition.

Blaha and Frazier each turned in only a thousand more signatures than Keyser did (about 17,000). Graham turned in about 22,786 signatures. Keyser turned in only 16,067 signatures. A slightly higher invalidation rate for either Blaha or Frazier than Keyser could keep that candidate off the ballot (again, hurting Graham, but helping Glenn and any other candidate who makes the ballot).

In terms of campaign finance, Blaha, who has raised more money than the other conservative candidates and can self-fund, has the edge.  Frazier has raised very little and Darryl has raised even less. Graham leads the fundraising race so far and can also self-fund, but his political moderation hurts him in the primary.

In a two way race, Darryl probably wins, despite his extreme shortfall in cash relative to Graham. In a three or four way race, any of the candidates on the ballot could win on any given day, with Graham faring better in a four way race than a three way race. Frazier is probably the front runner if he makes the ballot, simply due to higher name recognition than his competitors from previous attempts to win higher office, again, despite his lack of funding.

Keyser had led the fundraising raise among conservative candidates in the GOP race until he was eliminated today.

None of the candidates have much of a real shot against well funded, moderate incumbent Democratic Senator Michael Bennett in a year where he will also probably benefit from Presidential coattails and strong general election turnout. Indeed, they are only in this race at all because more prominent Colorado Republicans with a better shot at winning decided not to even try to beat Bennett.

Interestingly, this GOP race for statewide office has two African-American candidates (Darryl and Frazier), and Graham, a rare moderate Republican candidate, any of whom would be greater threats to Bennett than Blaha who is a conservative GOP nominee out of central casting and unlikely to attract much interest from swing voters in the general election.

Colorado was also one of the states most supportive of Ben Carson's candidacy, and has previously elected an African-American Republican to be Colorado Secretary of State.  The Colorado Republican party is just a little bit different than the Republican party organizations of the American South.

A Glimmer Of Decency From The GOP

In a year where Republican Presidential nomination race front runners Donald Trump and Ted Cruz have made racism, xenophobia and broad brushed attacks on Islam as a religion hallmarks of their campaigns, it was refreshing to see South Carolina's Republican Governor Nikki Haley's response to President Obama's State of the Union address echo the President's central theme of inclusiveness across the boundaries of race, national origin and religion as a defining element of what America is about.

That Haley's reiteration of what should have been mere platitudes recited by the President in his address have been widely interpreted as attacks on Trump and Cruz, is an indication of just how far the Republican party has gone astray.

Her voice has come across as a voice in the wilderness, at a time when the notion of a "moderate" Republican has increasingly become an oxymoron.

The Republican party is fundamentally less interested in policy and more interested in ideology than the Democratic party, and unfortunately, at the level of the Republican base, a lot of that ideology displays the darker side of human nature.

Furthermore, on a bipartisan basis, an important source of the shift from pragmatic results oriented politics to highly partisan "principle" guided politics, can be traced to misguided campaign finance reforms developed from the progressive era good government effort to reduce the power of political party machines that favored contributions to candidates or independent special interest PACs over contributions to political parties which are arguably the cleanest money in politics today.

It would be incredibly reassuring to see the emergence of a wider consensus vision for America within which politicians argue over ways and means of achieving that vision, that Haley's response offered a rare glimpse of.  But, it seems unrealistic, given the revealed inclinations of Republican voters so far in the current election cycle's primary season, to believe that this will be attainable anytime in the near future.

Here's what the State of the Union address had to say about the state of American politics:

That’s why we need to reject any politics that targets people because of race or religion. This isn’t a matter of political correctness. It’s a matter of understanding what makes us strong. The world respects us not just for our arsenal; it respects us for our diversity and our openness and the way we respect every faith. His Holiness, Pope Francis, told this body from the very spot I stand tonight that "to imitate the hatred and violence of tyrants and murderers is the best way to take their place." When politicians insult Muslims, when a mosque is vandalized, or a kid bullied, that doesn’t make us safer. That’s not telling it like it is. It’s just wrong. It diminishes us in the eyes of the world. It makes it harder to achieve our goals. And it betrays who we are as a country.

"We the People."

Our Constitution begins with those three simple words, words we’ve come to recognize mean all the people, not just some; words that insist we rise and fall together. That brings me to the fourth, and maybe the most important thing I want to say tonight.

The future we want—opportunity and security for our families; a rising standard of living and a sustainable, peaceful planet for our kids—all that is within our reach. But it will only happen if we work together. It will only happen if we can have rational, constructive debates.

It will only happen if we fix our politics.

A better politics doesn’t mean we have to agree on everything. This is a big country, with different regions and attitudes and interests. That’s one of our strengths, too. Our Founders distributed power between states and branches of government, and expected us to argue, just as they did, over the size and shape of government, over commerce and foreign relations, over the meaning of liberty and the imperatives of security.

But democracy does require basic bonds of trust between its citizens. It doesn’t work if we think the people who disagree with us are all motivated by malice, or that our political opponents are unpatriotic. Democracy grinds to a halt without a willingness to compromise; or when even basic facts are contested, and we listen only to those who agree with us. Our public life withers when only the most extreme voices get attention. Most of all, democracy breaks down when the average person feels their voice doesn’t matter; that the system is rigged in favor of the rich or the powerful or some narrow interest.

It is very hard these days not to believe that "the people who disagree with us are all motivated by malice, or that our political opponents are unpatriotic."

To some extent, my worry is the opposite of President Obama's here.  I worry far more than we have taken tolerance too far.

I worry that we have not adequately condemned acts like those of the armed militia occupying a federal wildlife refuge in Oregon as not just illegal, but unpatriotic and treasonous, which is defined in the United States Constitution as taking up arms against your own country.

I worry that we have been far too tolerant of Donald Trump's outrageous blanket condemnations of Islam as a religion that betrays our bedrock national principle of freedom of religion, and slanderous characterization of Latin American immigrants as rife with dangerous criminals when all empirical evidence points to the opposite conclusion.

The First Amendment bans the use of government's coercive powers to restrict free speech, but it places no bounds on the bully pulpit or public condemnation of people who espouse abhorrent beliefs.  I worry that the political establishment, especially on the right and among Christians whose teachings have been misrepresented by politicians, has been lax in disowning these extremists, like Donald Trump and Ted Cruz and Judge Moore and the Colorado Springs Planned Parenthood killer and the Oregon militia.  Too often, instead, political and religious leaders have embraced and lauded these figures.

If our nation can rally around condemnations of these kinds of figures, the center cannot hold and our nation's political future is bleak.

There are people who argue that Republicans espousing views like those of Nikki Haley in her response to the State of the Union address this week, and Evangelical Christians who adhere to the social gospel are a silent majority.  I hope their right, but I doubt that it is true baed on survey evidence and the like.

What If Colorado Ballot Issue 65 Were Adopted?

Colorado Ballot Issue 65 directs Colorado's state and federal legislators to draft and advocate for a campaign finance constitutional amendment. While it would not be binding even if it was passed, at least some of Colorado's legislators would feel some obligation to at least try to comply with the voter's wishes if it did pass.

What kind of language could someone like me who is very concerned about protections for political speech as a core of our democracy live with? I gave it a shot and came up with the language below as a starting point for discussing the kind of language that might reasonably balance the right to free political speech with concerns about the undue influence of monied interests in American politics.

Overview

The core ideas in the draft, which is set forth verbatim at the bottom of this post, are mostly designed to fairly narrowly constitutionally overrule the notion of corporate personhood in the context of campaign contributions, an issue embodied in the controversial Citizens United case decided by the U.S. Supreme Court.

Sections 1 and 2 provide that a law may constitutionally insist that campaign contributions be traceable to specific, disclosed natural persons and may impose reasonable, uniform, per contributor limits on their contributions to any given political race.

Note that the draft amendment allows any natural person to make contributions in any U.S. political race, even if the person isn't personally allowed to vote in that particular political race or any political race. By implication, however, this language authorizes governments to prohibit of campaign contributions by corporations, unions, non-profits and governments, although it does protect the right of entities to act as intermediaries who bundle contributions from disclosed U.S. voters.

It does not apply prior to the point in time at which a candidate gains ballot access, and does not apply to political speech that does not advocate for particular candidates or pertains to ballot measures. The distinction between ballot measures and candidate races flows from the notion that ballot language can't be "bribed" or influenced by campaign contribution money after it is adopted and show favoritism, while candidates may. Also, the distinction between generally policy discussion and advocacy for ballot measures is muddier than the distinction between advocacy for political candidates.

Section 3 provides political opinion made at a disclosed person or entity's own expense in their own publications, or at no expense financed by a contributor, may not be regulated, even if that person is not otherwise entitled to vote in any election.

This key definitional distinction between contributions and one's own speech is a safe harbor for such traditional political speech forums such as newspaper opinion pages, op-ed columns and letters to the editor, and for church and entity newsletters, websites and blogs.

The existence of this exception largely turns the limitations on campaign finance into time, place and manner restrictions. The distinction between media speech and "corporate" political speech is inherently problematic. There is no obvious reason that Rupert Murdock's media empire should benefit from a safe harbor, while Ben and Jerry of ice cream fame should be highly restricted in the extent to which their corporation may have a political voice.

Section 4 provides that campaign finance law violations may not be used to change electoral results or deprive someone of their political rights.

Fines for campaign finance violations must be proportionate to the office and incarceration for a campaign finance violation must be short. Thus, they must be purely collateral matters whose enforcement can not effectively be used to suppress political dissent or add uncertainty to disputed elections.

A lurking issue here that is not addressed concerns issues related to selective enforcement by winners of elections. For example, a President or state Secretary of State who wins an election might vigorously enforce campaign finance laws after the election against violators who opposed members of his political party while ignoring violators who support members of his political party. Colorado's current Secretary of State, Scott Gessler, has been accused of precisely this kind of behavior. Yet, in general, illegal contributions to election losers who are most at risk of prosecutions for campaign finance violations, are categorically people who made contributions that won't have an ongoing detrimental impact on the political process, while illegal contributors to election winners who are categorically more likely to pose the very kinds of risks that campaign finance laws were designed to address are likely, on average, to be the subject of more lenient and less diligent enforcement efforts. 

The institutional arrangements which might mitigate this important risk are too intricate to include in an amendment to the U.S. Constitution.

Sections 5 and 6 address federalism issues.

Section 5 clarifies issues of subject matter and long arm jurisdiction of courts where campaign finance laws are enforced. Section 6 provides that campaign finance laws for elections to offices and ballot issues in a particular governmental entity may only be enacted by that governmental entity and are subject to any constitutional limits established by that governmental entity's constitution.

I don't expect that either of these sections are particularly controversial beyond the controversy over the substance of the limitations allowed. These provisions are common sense rules of the road that are helpful because there are a number of other alternative rules of the road that could also be fought over if an express statement weren't included.

Is this good policy?

Is it good to suppress anonymous political speech?

One aspect of this proposal, about which I am ambivalent, is that it effectively criminalizes a significant chunk of anonymous political speech. Yet, this kind of speech, in the form of documents like the Federalist Papers, that was pivotal in our country's founding and is also very important to the political arm of any revolutionary political movement.  One of the important features of the free political speech and democracy is to make democratic processes more attractive than extra-legal action and these proposals have the potential to bias political movements against buying into the democratic process.

This harm is mitigated by the fact that it applies only once the choice to proceed via the democratic process has been made by candidates and advocates of ballot measures and the candidates and proponents of the ideas behind the ballot measures have thus already escaped the most obvious routes by which they could be suppressed. A call for a revolution or new set of policies that wasn't on a ballot anywhere isn't governed by this amendment. Neither is an expression of opinion about specific pending legislation that voters do not have a direct say upon. Hence, it has no impact on grass roots lobbying of already elected officials.

Is it good to suppress overt corporate or union political contributions?

Another aspect of this proposal is that it deprives entities, which already lack a right to vote of their own, of even the possibility of a meaningful collective voice. Why shouldn't what the Federalist papers called "factions" and specifically contemplated would play an important role in American politics, have a voice in their capacity as "factions" rather than merely through members of that faction.

Is it so bad that a union or corporation be able to use its economic power to express its opinion on a candidate or ballot issue?

Often a disclosed union or corporate campaign contribution will have practical value to a voter by helping a voter to evaluate which corporations and unions believe that they will be helped or hurt by a candidate or ballot measure, something that can help both supporters of the corporate or union position and opponents of the corporate or union position.

For example, in school board elections, knowing the institutional affiliation of donors to school board candidates is often the most informative way to learn the policy leanings of candidates whose public statements are often vague or indistinguishable from other candidates.

When contributions are made by natural persons who are affiliated with a corporation or union, people who want to trace the source of the money have to do large numbers of mini-private investigations to connect the dots that would otherwise be obvious if direct corporate or union contributions were allowed. Breaking contributions down to natural persons can be effective at limiting the capacity of wealth to give someone excess political power, but it can actually undermine the disclosure aspect of campaign finance regulation.

Do contribution limitations make politics cleaner?

A core belief that drives a large share of all campaign finance regulation is the belief that campaign contributions can be used to effectively bribe candidates who eventually do get elected to take legislative action on their behalf, thereby distorting the political process. Most campaign finance reform advocates (e.g. Common Cause) see campaign contribution limitations as just one form of anti-corruption legislation. The trouble is that the way that campaign contributions influence the political process is considerably more complicated.

For one thing, more often than not, campaign contributors use their money to back candidates who have already adopted political positions that favor them before they even considered running for public office.

The conventional notion of a bribe involves the use of money to change how someone would act, but in the case of campaign finance, the purported recipient of the bribe is getting money to do what he or she would have done anyway in most cases.

Requirements that campaign contributors be "independent" of the candidate in some situations and not coordinate with the candidate aren't all that effective at addressing the fact that monied interests often prefer one candidate to another and can use their funds to advance their preference effectively without any interaction with the candidate at all. Indeed, they may be able to take actions that are more effective when the candidate can truthfully deny any involvement in the actions of their proxies and even complain about those proxy actions, than they could have been if the candidate that they favor could be held more directly responsible for their advertising conduct.

Campaign contributions also don't bribe voters.

Generally speaking, campaign contributions are not used to provide personal gain to any outcome determinative number of voters. They may be used to hire a few sign making companies and pay money to television stations and newspapers (in both cases, the same companies and media outlets often receive money from both sides of many races), and to hire campaign workers who may feel some loyalty to the person who paid them money for their services but often supported the candidate or issue before they were hired anyway.

Direct bribery of voters as an important political tool pretty much died with progressive era civil service, government procurement, and anti-machine politics election law reforms by the 1920s at the latest, except for a certain amount of pay to play politics by construction companies looking for road building bids and municipal bond industry officials. Indeed, campaign contributions are generally spent on mailings and political advertisements that annoy the voters they are targeted at, even when they are effective. When it comes to imparting personal economic gain to voters, campaign advertisements (which is where most of the money goes) are almost "anti-bribes" that low the personal utility of a voter.

The impact of campaign contributions is almost entirely dervived from the content of the speech it directs at voters. And, one of the core ideas of American political theory is that voters should be making decisions influenced only by political speech.

Keep in mind also, that a great many voters actually have less information about the candidates that they will be voting upon than would be optimal.

While a considerable amount of money is spent on political campaigns, a lot of the spending by candidates themselves goes towards name recognition advertising that more often than not even deliberately fails to disclose or downplays the candidate's political party affiliation.

Almost no private campaign contribution funds are devoted to the kind of comprehensive, even handed evaluation of candidates and ballot measures (especially below the top of the ticket) that would be most useful to voters - non-profits good government groups (like the League of Women Voters), government agencies (like the bodies that prepare the information packets that Colorado voters receive), unpaid or minimally paid bloggers, and the mass media continue to have a near monopoly on this kind of analysis.

People who dislike unlimited campaign contributions also tend to dislike "negative campaigning" and "attack ads", despite the fact that this kind of advertising tends to be the most effective in swaying voters. The sense that too much money is spent on political campaigns is driven to a considerable degree by the feeling that these kinds of ads have negative value because they can be misleading and because the undermine the civility of the political process.

There is, of course, no necessary connection between misleading campaign advertising and the amount of money spent on political advertising.

Campaign contribution limits also have institutional effects that are the opposite of those intended from an anti-bribery perspective. They force candidates for public office to spend money time raising money and make candidates beholden to more contributors. Since almost all contributors have more money than the vast majority of rank and file voters, widening the necessary base of contributors makes all candidates more beholden to the wishes of the class of people affluent enough to make some kind of political contribution relative to the wishes of people who can't make any political contributions, since a contributor whose political views are at odds with the vast majority of people affluent enough to contribute at all can't contribute enough to allow a candidate to ignore other members of that affluent class of individuals.  Put another way, campaign contribution limits favor the upper middle class to the detriment of rich progressives whose views are at odds with most of the rest of the upper class and upper middle class.

There are other ways that campaign contribution limits are problematic, not least among them being how very hard it is to prevent loopholes from swallowing the general rules restricting campaign contributions and spending in any meaningful way consistent with any kind of even minimal protection of First Amendment rights related to political speech.

For all those reasons, I do not believe that campaign finance regulation, in general, and campaign contribution limitations, in particular, do much good. Narrower efforts to limit the political influence of big corporations are even more futile.

But, lots of people, particularly liberals, have personal political world views that see a class of politicians controlled by corporate money and power as the root of most of the world's social ills, and if you believe this, crude campaign contribution limitations and a ban on corporate campaign contributions is the natural lynch pin of any plan to achieve progress on any other issue by political means. To those people, I would say that while this makes lots of superficial sense, it simply is not an effective tool to achieve that end and there are lots of process tools that would be much more effective (like finding ways to dramatically increase the share of eligible voters who actually vote through changes in the political process).

Draft Campaign Finance Amendment Language

Section 1: The Constitution of the United States of America, as amended, shall not prohibit Congress, State or an elected governing body of a federal territory, commonwealth or district, from passing laws requiring all contributions to another, that are used to advocate for or against, in the name of anyone other than the contributor, a candidate who has been authorized to appear on the ballot in for any elective office in a specific election be traceable by members of the public to one or more publicly disclosed natural persons, subject to such exceptions or exclusions as are provided by such a law. This amendment does not apply to political discussion that does not advocate for or against a candidate who has been authorized to appear on a ballot for a specific election for a specific office.

Section 2: A law permitted by Section 1 of this Amendment may set a limit, which is uniform for elected to the same legislative body or the same legislative office, on the maximum amount of contributions subject to such disclosure requirements that a natural person may make in a single election cycle for that office, in connection with a particular elective office, provided that this limitation may not be unreasonable small relative to amounts spent to advocate for or against candidates of that kind before the law was adopted, and provided that the amount is adjusted for inflation accruing after the law is adopted in each new election cycle. In the case of any candidate for the United States House of Representative, the United States Senate, or a ticket of candidates for President and Vice President (and any electors pledged to such candidates), an initial limit on contributions shall be not less than $5,000 per person per election cycle for that particular elective office.

Section 3: Neither Congress, nor any State shall make any law that prohibits or require disclosure from any person, or for profit, non-profit or cooperative entity with a substantial existence and purpose apart from political advertising and advocacy, in connection with the any publication in a publication controlled by that person or entity, of that person or entity's own opinions regarding any candidate for any office, for which that person or entity does not receive separate payment from any contributor, which are disclosed as that person's opinion or as the entity's own opinions or as the opinion of a disclosed editorial board of an entity. Likewise, neither Congress, nor any State shall make any law that prohibits or require disclosure from a person or entity whose opinions regarding any candidate for any office are published with no expense to the person or entity stating the opinion, if the publication of this opinion is not paid for by any contributor.

Section 4: No penalty for a violation of a law authorized by this amendment shall alter in any way the outcome of any election. No fine or monetary penalty or forfeiture for any particular violation of such a law shall not be in excess of (1) the actual cost including attorneys' fees in bringing the action, (2) three times the amount of any contribution made in excess of the limits established by law, and (3) the full amount of any contribution which would have been lawful had it been disclosed. No one may be incarcerated prior to trial solely for a violation of such a law and any criminal penalty for a violation of such a law shall be more serious than a misdemeanor, shall not cause a forfeiture of the political rights of the person so convicted before or after conviction, and shall not be punishable by more than six months of incarceration.

Section 5: The federal courts of the United States of America with jurisdiction over all or part of the geographic area in which resident voters are entitled to vote on the candidate with respect to which a contribution is made, shall have jurisdiction over any action to enforce any such law against anyone, anywhere in the world, provided however that the courts of a State shall have exclusive jurisdiction over any action by a State or subdivision of a State or any natural person or any entity to enforce any such law enacted in that State against a resident of that State.

Section 6: This amendment does not pre-empt provisions in state or local or territorial or commonwealth or district organic documents or constitutions prohibiting such laws. No State, or elected governing body of a federal territory, commonwealth or district shall pass any law requiring the disclosure or, of limiting, contributions to advocate for or against a candidate for the United States House of Representative, the United States Senate, or a ticket of candidates for President and Vice President (and any electors pledged to such candidates), regulating in any way contributions to advocate for or against a candidates for elected office in any jurisdiction other than its own.

2012 Colorado Ballot Issues and Election Preview

Colorado State Ballot Issues in 2012

There are three state ballot issues this year in Colorado.

* Vote Yes on Issue S.

Issue S would amend the state constitution to modernize the state civil service system, a measure that made it onto the ballot only because it had bipartisan support and has no organized opposition. It is a carefully drafted good government measure that every voter should support. But, similar efforts have failed to pass in the past.
 
* Vote Yes on Issue 64.

Issue 64 is a carefully and thoughtfully drafted measure that would legalize recreational possession of marijuana for personal consumption at the state level in a taxed and regulated manner by people aged twenty-one and older that is parallel to Colorado's medical marijuana regime. Denver has already taken this step at the local level, and localities would retain considerable regulatory authority of the recreational marijuana industry. Due to the local control elements of Issue 64, the commerical side of the marijuana trade would likely be similar to gambling when the dust settles - it would be legal in perhaps a dozen jurisdictions and the rest would prohibit it out of NIMBY concerns and miss out on the economic benefits of deregulation.

Medical marijuana laws in Colorado which President Obama originally decided not to interfere with and has hence given the go ahead for federal law enforcement agencies to subject to incremental efforts to curb, would remain unchanged and have been a great success overall. Medical marijuana has not increased crime, has made treatments shown to work in published academic studies for certain conditions available to people who benefit from them without criminalizing them, has pushed disputes in the supply chain to the courts rather than the streets, gave the state's commercial landlords a critical boost in the middle of a real estate downturn, has generated considerable tax revenue from people who want to pay taxes and want to be regulated, and almost every single dollar spent on medical marijuana goes straight back into the Colorado economy to pay for labor reducing unemployment and strengthening the local economy. Medical marijuana has not driven up use of other drugs and even I, a strong proponent of it, don't disagree that some of the early prescriptions for it had a very thin medical basis and were basically recreational with a doctor's blessing.

There is no doubt that all of the commerce authorized by Issue 64 would be illegal under federal criminal laws and that federal law pre-empts state law in this instance. There is federal case law directly on point. The President could devote immense resources to having the federal government pick up the state and local slack in marijuana enforcement. But, few other states provide a more likeable test case for ending the drug war at least in part through decriminalization.

Marijuana is substantively less addictive and harmful to the public than alcohol and many other criminalized psychoactive drugs. Marijuana can be home grown preventing it from giving rise to large scale interstate drug trafficing rings. Colorado has a successful recent history and adminstrative skill set for regulating the industry reasonably. And, marijuana prohibition has grown publicly unpopular nationwide and in particular in Colorado. Also, the passage of Issue 64, even if the federal government chooses to enforce marijuana laws in the state leaves the specter of jury nullification as a likely possiblity in every single marijuana prosecution and a few jury nullification acquittals could quickly dampen federal interest in taking a crackdown approach.

Even if all that happens under Issue 64 is that Colorado successfully shifted the budgetary burden of enforcing marijuana prohibition from state and local government to the federal government, this is a win for Colorado taxpayers.

* Vote No on Issue 65.  But, what the voter's decide doesn't really matter.

Issue 65 urges state and federal legislators to pass a U.S. constitutional amendment legalizing campaign finance contribution dollar limitations, something the the Citizens United case, prior cases, and one follow up case, decided by the U.S. Supreme Court under the First Amendment to the U.S. Constitution severely limit.

This measure is mostly irrelevant. It is a preference polls or suggestion that has no binding legal effect. Unlike many ill conceived proposals that Colorado Common Cause has helped to draft, it doesn't have the minutae of details that leave room for mischief. Most people agree with the concept of campaign finance limitations, although the U.S. Supreme Court hasn't been wrong in concluding that there are grave threats to constitutionally important issues of political free speech that are implicated by campaign finance limitations. Drafting a suitably narrow constitutional amendment that has real effect while not closing the door to vigorous democratic debate when ill intentioned politicians implement is a difficult and perhaps insoluable problem.

I personally think that campaign finance contribution limitations are a fundamentally flawed approach to addressing the problems of excessive influence by economically powerful individuals and institutions. Laws requiring transparency in campaign financing, moderate levels of public funding for election campaigns, and improved election laws are much better solutions that are far less prone to being hijacked or gamed. But, because this measure is merely a suggestion and lacks the poor drafting endemic to campaign finance measures, my opposition to Issue 65 is more tepid than almost any other campaign finance reform proposal that I have seen.

In a best case scenario, if Colorado and other states start to pass the measures, the constitutional amendment Colorado's state and federal legislators are urged to adopt never passes, but the U.S. Supreme Court crafts a judicial loophole to its First Amendment case law that provides a workable option for addressing the campaign contribution excesses almost akin to bribery that has undermined the faith that so many people do have in the political system.

Major Federal Partisan Race Redux

* Vote For Democrats in All Federal Elections

Polling suggests that every bit of campaigning effort in Colorado will matter this year. It is almost impossible for Romney to assemble the necessary 270 electoral votes without taking Colorado, and Colorado is a true swing state this year in which neither candidate has a lead so strong that it can shift hands in a matter of days. Romney needs to win essentially every toss up state and some Democratic leaning states to win the Presidency or tied up the race to throw it to the House of Representative to resolve.

Close Congressional races in the 3rd (Southern and Western Colorado), 6th (South and East suburban Denver and Aurora more or less), and 7th (North and West surburban Denver) all have the potential to go either way and influence which party has a majority in the U.S. House of Representative and by how much. This is the first election cycle after redistricting for these seats, so there is considerable uncertainty regarding how the incumbents will fare in new and less favorable districts (in the 3rd and 6th with Republicans hold) and in a new and somewhat more favorable district in the 7th (which Democrats hold). Odds makers favor the incumbents in all three of these races, but not heavily.

Colorado State Legislative Race Redux

* Vote For Democrats In All State Legislative Elections

Republicans currently hold a one seat majority in the sixty-five member Colorado State House, in which all seats are contested every two years. Since this is the first election cycle after redistricting and the quality of data and analysis at this level is much patchier than at the Congressional district level, more uncertainty is lurking.

Democrats have a more firm hold of the Colorado State Senate going into the election, only half of incumbent state sentators face voters this year, so the election is far less likely to change control of the state senate.

In both cases, the state legislative redistricting maps are widely viewed as favoring Democrats and Democrats are helped by the increased voter turnout in Presidential elections, so the advantage should be with Democrats in state legislative races this year.

Colorado Local Ballot Issues and Local Candidate Races

There are a number of notable local ballot issues and candidate races this year.  Many seek voter authorization for new spending and debt authority for local governments, which TABOR (the taxpayer's bill of rights) obligates governments to obtain before the taxes are levied and the debt is incurred.  Most of the time, I concur with the elected officials proposing these measures that the revenue or debt is needed.  Most voters most of the time agree with me on this point.

A number of District Attorney districts have contested DA races this year, the most interesting of which is the contested seat to fill the seat left open by controversial 18th Judicial District Attorney Carol Chambers who is term limited, where the Republican Sheriff of Araphahoe County and a recent former Republican District Attorney have endorsed the Democratic Party candidate in the race.

There are also a variety of other notable ballot issues and candidate races.

These will be discussed in a future post coming soon.

Colorado Judicial Retention Elections

In Colorado, almost all judges are nominated by blue ribbon committees, appointed by the Governor, and then subject to "retention elections" after two years in office and then after a longer period of time based on the particular judgeship in question.  One Colorado Supreme Court Justice (Justice Coats) and a number of Colorado Court of Appeals judges face retention elections this year statewide.  There are also a host of retention elections for the state's general jurisdiction court judges (District Judges), some speciality court judges in Denver, and many limited jurisdiction court judges (County Court Judges).

If a majority of voters casting ballots on retention cast no votes, the judge is not retained, and a vacancy is created for the Governor to fill (there is some slight variation in the pattern in Denver).

A state commission interviews every judge facing a retention election and surveys lawyers, court officials and non-lawyer litigants regarding the judges facing retention elections and reports the results and makes a recommendation.  In all but the most egregious cases, the recommendation is to retain the judge and usually the recommendation is unanimous.  The results are distributed in a pamphlet sent to every voter who votes on the judge in question.  These recommendations generally say almost nothing about the ideology of the candidate except to sometime disclose a perception of a prosecution or defense bias in criminal cases.

Often informal pressure from the commission or decisions not to seek retention or to retire from the judicial ethics body in the state keeps judges who would not receive retention recommendations from facing voter's wrath.  The appointment process also keeps most of the most volatile and unqualified candidates for judicial office who might be elected by voters or appointed by a purely political process in other states from ending up on the bench in the first place.

Judges can also be removed by impeachment in Colorado, but this almost never happens.  It is far more rare even than losing a retention election.

Most non-retention votes are driven by a personal controversy the judge is embroiled in with ethical dimensions, or by a controversial and unpopular decision in a very small number of high profile cases that the judge was involved in (even if the decisions were legally correct), rather than an overall pattern of subpar performance.

I am not a personal fan of the judicial retention election part of Colorado's judicial personnel process, even though I have nothing but praise for the manner in which it appoints its judges and have a guarded but positive view of the judicial discipline process. 

I would favor a process that is more selective in deciding which judges should face retention contests and one with more informed decision makers.  For example, I would prefer a system in which the Colorado Supreme Court, which is most informed about the matter, rather than the general public, made retention decisions regarding Colorado Court of Appeals judges.  Similarly, I would favor a system in which Colorado Court of Appeal judges made retention decisions for District Court judges, and in which District Court judges made retention decisions for County Court judges in their district.  I would leave voters with a say only over Colorado Supreme Court judges and over judges facing retention elections specifically flagged either by recall petitions with thresholds similar to those for DA or statewide or county official as the case might be, or by some threshold of performance set by the judicial retention commission for voter review (perhaps anything other than a unanimous vote to retain).  Thus, rather than having dozens of judicial retention elections on the ballot each year about which few voters know anything, there would be just a handful of the most salient  races statewide every year.

But, while these elections clutter the ballot and rely on usually ill informed opinions, the overall judicial appointment and removal process in Colorado is still one of the best in the nation overall.

In general, my attitude is to set higher standard for judicial retention than the state commission that makes retention election recommendations, and to vote no on retaining a judge whenever there are any signs in the judicial commission report that a significant minority of any class of people do not favor a judge's retention or there are any other material shortcomings in the judge's performance.  I also vote not to retain judges whom I have personal knowledge of any case in which the judge's performance has been questionable.  And, when as this year, I have a Governor I trust to make new appointments wisely, I vote not to retain judges who may be exemplary in the non-partisan components of their jobs but whose judicial ideology I am familiar with and disagree with on the merits. (See also this 2010-2011 summary of Colorado Supreme Court Justice ideologies.)

It is for the last reason that I will be voting not to retain Colorado Supreme Court Justice Coats.  His is by all accounts an ethical and diligent judge.  Unlike Wisconsin where they have had physical brawls in the Court chambers, every member of the Colorado Supreme Court conducts himself or herself in a civilized and professional manner.  Justice Coates also never fails to articulate a basis for his rulings in opinions that are at least par for the course for an appellate judge.  But, I disagree with his judicial ideology and approach to legal interpretation.

The most common split in Colorado Supreme Court is a five to two split with five "moderate liberals" in the majority, and two "conservatives" in the minority (there are plenty of cases that are decided unanimously and all manner of other voting alignments turn up now and then, the divide is not universal or monolithic).  I read a great many Colorado Supreme Court decisions.  With only very rare exceptions, I usually feel that the five judge faction's substantive judicial determination is a better intepretation of the law on the merits than the two judge minority faction.  The judges in that two judge "conservative" faction are Justice Eid and Justice Coats.  Between the two, Justice Eid is a bit sharper in her legal analysis and writing (on the writing score she is the rivial of any U.S. Supreme Court justice in recent memory) but ideologically in about the same place as Justice Coates. 

Both of these Justices, in my opinion, are somewhere to the ideological right U.S. Supreme Court Justices Kennedy and former U.S. Supreme Court Justice O'Connor, and somewhere a bit to the ideological left of U.S. Supreme Court Justices Thomas, Scalia and Alito.  These two judges are probably the closest match ideologically to Chief Justice of the United States Wiliam Rehnquist.

In my view, it is legitimate to make a judical retention election decision based on on judicial ideology and mode of legal interpretation, even though the commission that makes retention election decisions doesn't consider this factor and even though that commission has unanimously recommended that he be retained and did not receive exceptionally high level of dissent in the surveys regarding his performance.  Indeed, the real reason to have judicial retention elections, in my view, is to allow the public to weigh in on issues of judicial ideology.

It is much harder to weigh Colorado Court of Appeal judges because they write so many opinions, because they set on many varied panels that make their rulings harder to analyze, and because there are so many more of them.  Nothing in the judicial retention commission report suggests that any of them should not be retained, all were unanimously recommended for retention, and at least one of them, Judge Casebolt, I have a personally high opinion of him (I notice his opinions because he was formerly an attorney at a firm were I worked a long time ago).

I may address judicial retention elections for notable trial judges and for other members of the Colorado Court of Appeals, in a future post.
 
Colorado Voter Registration Redux

In early September, Republicans had a 72,585 voter edge in that category - or 4.6 percent. One month later, that edge has shrunk to 30,347 voters - 1.6 percent overall. 

From Fox 31 via Colorado Pols.

The Republican voter edge going into the election is really greater than raw voter registration numbers would suggest, because Republicans vote more reliably than Democrats.  Democratic voter registration gains are a combination of hard work registering voters and the fact that there are more unregistered voters to register.  Overall, there are about 3.6 million registered voters in Colorado.

Despite their voter registration edge, the difficulty that Republicans face going into the election is that independents have in recent years in Colorado, more often ultimately voted for Democrats than for Republicans.

Colorado Election Administration

Ballots will begin to be mailed to non-military voters this Monday, October 15 (at least where I live), and votes will begin to be cast the next day, three weeks before the November 6, 2012 election day. This greatly limits the impact of any "October surprise" on election outcomes in Colorado, but the most fickle voters also tend to be procrastinators, so there is still considerable room for last minute factors to influence voting outcomes.

Republican Secretary of State Scott Gessler has been severely criticized for his handling of a variety of election administration issues and of his own financial and ethical dealings with the Colorado Department of State by the state county clerk's assocation (whose executive director is a former Republican Clerk and Secretary of State), and the press, and rightly so.  Most recently, as many as thousands of voters seeking to register to vote may have been denied that opportunity on the October 9, 2012 registration deadline for this year's Presidential election due to entirely foreseeable computer hiccups in his office's voter registration system.

So far as I know, a high profile fight over mailing ballots to inactive voters (a term far to rigorously defined under Colorado election law) remains in play in the courts, just days from the date for mailing ballots.

Gessler's highly hyped claim that there were as many as 11,000 non-citizens on Colorado's voter rolls in the end revealed less than 200 possible non-citizens on the rolls many of whom may be exonorated in uncoming hearings, while harassing thousands of legistimate voters.  Only 35 people over the court of five elections, no more than eight in any one county, were found to have been possible non-citizen voters and these cases again, are instances where hearings have not been held and government paperwork errors could be at fault.  Republican misconduct in the voter registration process in the 2012 election has produced more fraud and that is being prosecuted.

Doug Bruce Convicted Of Felony Tax Fraud and Attempted Bribery

Colorado Pols summarizes the breaking news regarding Taxpayer Bill of Rights initiative (TABOR) author and former state legislator and county commissioner Doug Bruce's felony tax fraud and attempted bribery conviction this afternoon. He was convicted of not reporting about $190,000 of interest earned by a sham non-profits that he used as his own funds over a three years period (2005-2007).

Bruce's pro se defense (he is legally trained and was a deputy district attorney in California for six years, but has never been admitted to practice in Colorado and chose to represent himself in this case), was in typical Bruce style, "unconventional" a.k.a. delusional. He acted like a tax protester who didn't respect the court rather than someone making a bona fide claim of innocence of the charges against him.

Bruce faces up to six years in prison and a hefty fine at a February 13, 2012 sentencing date, in addition to any civil liability he may have for unpaid state taxes, interest and penalties. Of course, the Court would also have any number of other sanctions available to it at sentencing, such as probation. Leniency wouldn't be uncommon for a non-violent, white collar crime defendant with no meaningful criminal record (in 1995, he served eight days in jail for contempt of court), and a record of public service and civic involvement. But, the nature of his defense and his unwillingness to accept responsibility or even to acknowledge the wrongfulness of his actions makes this less likely in his case than in other white collar criminal cases.

An appeal from Bruce is almost certain, but is unlikely to prevail.

The prosecution was made in state court, but the federal government has every right to prosecute him on nearly identical civil and criminal federal tax evasion charges if it wishes to do so.

Bruce tried to evade subpoenas and faced investigations related to civil campaign finance non-disclosure charges in 2010. He was ultimately not held in contempt of court in September, 2010, after a several day long trial in which he was represented by an attorney, although he was ordered to provide testimony in that case. In December of 2010, in the same case, a charity he founded ("Active Citizens Together") was fined $11,300 for campaign finance violations in connection undisclosed initiative contribution.

He has also recently been accused of engaging in the unauthorized practice of law in Colorado and served with an order to show cause why an injunction requiring him to refrain from doing should not enter in June of 2011, while he was representing himself in a TABOR related lawsuit that he brought. He filed a bombastic answer in the case, Colorado Supreme Court case no. 10UPL058 aka case no. 11SA154, on July 7, 2011. The civil Colorado Supreme Court case in which a petition was filed on May 23, 2011, is currently pending against Bruce in the Colorado Supreme Court and requests fines as well as the injunction.