Political ads: "Magic words" ruling that boosts 527s disappoints Colorado Ethics Watch

Luis Toro.

The Colorado Supreme Court has ruled that political organizations dubbed 527s can spend unlimited funds for state candidates as long as the ads they're financing don't include so-called "magic words" such as "vote for" or "defeat."

The decision is a disappointment for Colorado Ethics Watch, which began pressing the case since 2008.

As CEW executive director Luis Toro explained in the December 2010 post linked above, spots that steer clear of the terms specified in Amendment 27, passed in 2002, are categorized as issue ads. As such, the institutions that fund them aren't required to register as political committees or be subject to donation limits even if the commercials in question obviously advocate on behalf of an individual candidate.

To challenge this interpretation, CEW filed a September 2008 campaign finance complaint against the Senate Majority Fund and Colorado Leadership Fund. The following November, Administrative Law Judge Robert Spencer dismissed the case, and the Colorado Court of Appeals affirmed his decision in March 2010.

In the interim, the U.S. Supreme Court issued its landmark Citizens United v. Federal Election Commission, which erased corporate funding limits for political broadcasts on First Amendment grounds. But because that decision nixed a "magic words" standard, CEW's Toro felt jurists at the Colorado Supreme Court, who agreed to hear the case in late November 2010, might follow the same logic.

The 2012 Colorado Supreme Court.

Things didn't work out that way. As Toro reads the opinion, the justices "said that when voters enacted Amendment 27, they intended to put this rather technical 'magic words' test into the constitution. So the Supreme Court interpreted the case in a very narrow way."

Too narrow, by Toro's way of thinking. "To take a commercial example, if the magic words for a hamburger ad are 'Buy a hamburger' and a McDonald's ad only says 'I'm lovin' it,' then it wouldn't be considered an ad. But it's an ad -- and so is a commercial for a Senate candidate even if it only says to call her and tell her how great she is instead of telling you to vote for her."

Toro notes that "this ruling does not apply to the electioneering communication laws that kick in thirty days before a primary and sixty days before a general election. This was about the rest of the time." During the electioneering period, he goes on, "there's an equivalency test, where all you have to do is mention a candidate. But there may be future battles over that. It seems like everything's fought out in the campaign-finance world."

Right now, the 527s, and their big money donors, appear to be winning. But CEW isn't surrendering. In Toro's words, "this doesn't reduce our commitment to fighting for transparency in elections. We're going to keep on doing what we've been doing."

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