Colorado School Board Recall Election Raises Questions about Campaign Finance Disclosures and the Role of Outside Money

By: Eric Speer

A county school board recall election in Colorado has brought focus once again to the influence of outside “dark money” on local political races. And campaign finance observers say that much of it will never be traced back to its source because of a confluence between IRS reporting regulations and a 2002 amendment to the Colorado constitution.

Jefferson County, or “JeffCo” as it is commonly referred to even by state agencies, is a political swing district west of Denver. On November 3, conservative school board members Ken Witt, Julie Williams, and John Newkirk were recalled in a landslide. The recall election had grown into a national political spectacle and a battleground for the future of education policy. The three incumbents were elected in 2013 and became the majority bloc on the five-member board. During their tenure, they advocated for key components of conservative education reform: performance-based pay for teachers, voucher systems, and charter schools, to name a few. They are perhaps most notorious though for seeking to change the Advanced Placement United States History curriculum to be more “patriotic,” by focusing less on topics like “civil disorder.”

Historically, school board campaigns have been funded by individual contributions along with various committees, such as independent expenditure committees, candidate committees, and the union-supported small donor committees. But this year, outside nonprofit groups became the biggest contributors to the race. These groups are technically not connected to the candidates and as such are subject to different spending and donor disclosure rules.

Conservative group Americans for Prosperity and the libertarian Independence Institute, swooped in to support Witt, Williams, and Newkirk with their considerable war chests. Commonly called “C4s” because of their tax designation, 501(c)(4), these “social welfare” groups are not-for-profit entities, which are, at least ostensibly, independent from candidates, but spend millions of dollars nationwide to influence elections.

Controversy surrounding C4s centers on their ability to hide donors’ identities. By law C4s are not required to disclose contributions to their organization. This is because nonprofits such as Americans for Prosperity (AFP) are not supposed to have political action as their primary purpose and may not specifically endorse a candidate. In the JeffCo election, for example, AFP ran ads asking citizens to call and thank the conservative incumbents for their policy positions, but did not explicitly tell people to vote for them or to vote against the challengers.

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This secrecy is compounded by the fact that campaign committees are required to report contributions far less frequently in odd-year elections. Because of 2002 amendment to Colorado’s constitution, committees are only required to disclose expenditures in mid-October and then again in mid-January of the following year. This means that spending during the vital period a month before the election is unknown until many months later.

School board elections have typically not been seen as “big elections,” but that perspective is sure to change after this year’s influx of outside money and the national attention that the JeffCo recall election has garnered. Colorado’s race serves not only to illustrate the nation’s polarized and competing ideologies regarding American education, but is also likely to stoke the debate about campaign finance disclosure.

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