By: Helen L. Brewer

The U.S. Supreme Court has long held that spending money on political campaigns is a First Amendment right. Donations to, and expenditures by, campaigns—according to the Court—are political speech. As such, the First Amendment protects this money from government regulation. Laws can only place limits on campaign money if there is a risk the money will cause quid pro quo corruption or the appearance of such corruption. Therefore, despite the First Amendment’s protection of campaign funds, individual donations to candidate campaigns can be limited by the government. This prevents an individual from donating mass amounts of money to a campaign in exchange for special treatment when the candidate is elected to office.

If, as the Supreme Court tells us, an individual’s donation to a political campaign is speech, what does it mean when the campaign an individual donates to in turn uses the donor’s money to support a completely different, unrelated cause?

Coloradans who donated to a group called Official Recall Colorado Governor Jared Polis (Official Recall) found themselves in this situation when Official Recall abandoned its efforts to recall Governor Polis and disbursed the money it collected from donors to its own staffers and other political campaigns. Official Recall solicited donations to support their effort to collect petition signatures to force Colorado to call an election in which voters would have the opportunity to remove Governor Polis from office. Official Recall never collected any signatures, and when other groups attempting to recall Governor Polis abandoned the effort, so did Official Recall.

By this time, Official Recall had collected about $114,000 in donations. In September, Official Recall’s campaign finance report showed it distributed $11,000 of that money in “board gift[s]” to several of the group’s top-tier staffers. Additionally, the group made several donations of a few thousand dollars each to groups like the Boys and Girls Club. Perhaps most notably, Official Recall donated $30,000 to Colorado for Trump.

All this money came from individuals who donated to Official Recall for the purpose of removing Governor Polis from office. Instead, however, those individuals’ money was spent in support of Donald Trump and other initiatives the donors never intended to spend their money on. One Colorado woman, Starle Brethauer, donated to Official Recall and was so appalled at this use of her money that she filed a complaint with the Colorado Secretary of State. Brethauer said she “‘[felt] like [she] ha[d] been lied to’” when Official Recall repurposed her money for a completely different cause. However, as the Secretary of State noted in a motion to dismiss the complaint, Colorado law does not require an issue committee like Official Recall to use the money it raises in support of a recall election. Colorado law thus provides no remedy for people like this woman.

Regardless of one’s political preferences or partisan affiliation, it is unappealing to imagine donating to a campaign for or against a candidate only to have one’s money re-routed by that campaign to support a different candidate. To people like the complainant in Colorado, this is an underhanded use of the donor’s money. And according to the Supreme Court, the donor’s money is actually the donor’s speech. When Official Recall repurposed campaign contributions, then, it effectively forced its donors to speak in support of campaigns the donors might never have supported of their own free will.

Colorado recently called itself a “national leader” in transparent campaign finance after passing a serious of robust campaign finance disclosure laws. According to Supreme Court caselaw, disclosure like this should be enough to prevent harmful, shady dealings in elections. But when a debacle like the one surrounding Official Recall occurs in a state that has done everything the Supreme Court allows to prevent corruption in elections, one is left to wonder whether the Court’s anti-quid pro quo corruption standard does enough to protect the integrity of our elections.

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