U.S. District Court grants plaintiffs Preliminary Injunction

This is a stunning, and probably costly defeat for the City of Longmont.  But a victory for the 1st Amendment. 
Here’s a link to the entire document.

And a Denver Post article.
…more on this to come.

Van Dusen wrong about point of lawsuit

Longmont City Council candidate Bill Van Dusen wrote a guest opinion in the October 18, 2009 Longmont Times-Call entitled “More transparent campaigns make for more informed voters“.  Some of his positions were just shot down by a federal judge in the Preliminary Injunction that was just handed down in the case of Western Tradition Partnership, et al v. The City of Longmont  (full disclosure, I’m also a plaintiff in this ongoing case)

His piece was a veiled attack on former Longmont mayor Julia Pirnack in reference to an earlier piece she wrote about the importance of anonymity.  He even goes as far as justifying Longmont’s draconian requirements in the ridiculously written Independent Expenditure portion that was just deemed null and void by the judge in this case.  His example?  Another terrible piece of legislation called the McCain-Feingold Act, the very law that has brought us 527 groups and the fiasco we find ourselves in every election cycle.

If you read through his op-ed it’s full of items the judge took apart in his order for this injunction.  He also completely misses the point of why this lawsuit was filed, at least from where the judge found myself to have “standing“:  The red herring he throws out is that he thinks it’s all about people trying to hide their identity, that’s on overly simplistic view of this that anyone who went to the trouble of reading the legal briefs or attended the court dates would have known better.  He obviously didn’t, along with a bunch of people who are chiming in with absolutely no idea of what they are talking about.

I even said in court I would be more than happy to make any report and not hide my identity if it were similar to what candidates had to do, which is report at set dates throughout the campaign.  But instead, I have to file within 72 hours, make sure each affected candidate is notified (which I assume would take Certified Mail to truly accomplish), put on the flier (or whatever it is) the name of the registered agent (tough to do when an individual can’t be considered a committee nor can have a registered agent) AND design into the flier all of this and the dollar amount before going to print.  All things that are nearly impossible to determine beforehand (don’t forget possible postage) – and the judge agreed.
Sorry I had to go through that entire diatribe to explain it, but some people, apparently Mr. Van Dusen included, just don’t get it.  He appears to be fully onboard with the Fair Campaign Practices Act, and it bothers me (and should bother you) that he doesn’t even question what might need to be questioned.  That’s not a sign of a leader in my book.  We’ve had enough of the “go along to get along” type of politicians around here.  Enough already. 
Maybe Mr. Van Dusen should stick to his specialty in tax law and not constitutional law.

Karen Benker tries to use Election Law to punish free speech

The freedom of speech and the freedom of the press are precious rights worth defending. That’s why we should all be alarmed with how Council woman Karen Benker is using Longmont’s campaign laws to intimidate people who express their opinions and report information critical of elected officials. Continue reading…

Fissinger’s Friday night document drop

It appears Longmont City Council at-large candidate Kaye Fissinger has learned a trick from her fellow travelers in the White House:  dump bad news late on Friday to avoid the news cycle.  Nice try, but no such luck.

It appears that Ms. Fissinger, or whoever is filing her reports, made a few boo-boos on their initial campaign report on October 13th (you can see it here).  In what basically was an admission of guilt (several times over), she made an amended report on Friday October 16th (which can be seen here).  Didn’t hear about it?  Well, now you have.  And I’m sure the Election Committee when they meet on Monday October 19th to look over campaign reports will see these mistakes.

The rumor mill

A couple of months back there was this rumor going around about two candidates in particular getting shady under the table contributions from outside organizations.  Those two candidates were Karen Benker and Kaye Fissinger, the organizations were MoveOn.Org and ProgressNow (or ThinkProgress).  After seeing the initial campaign reports, those rumors appeared to be just that, rumors.  But Ms. Fissinger’s amended report re-opens the possibility these rumors were true.

It’s expensive to violate the LFCPA

Something that wasn’t reported in the initial report were three so-called loans Ms. Fissinger made to herself.  The dates and amounts of these loans were: 8/20/09 $579.35, 9/4/09 $231, 10/9/09 $94.54 – totaling $904.89.  As you can clearly see, these were all made before the 10/13/09 reporting date.  If this money was received through some intermediary, like one of the organizations above, this would be what the Longmont Fair Campaigns Act (LFCPA) classifies as a “conduit“.  Section 2.204.211(C)4 of the LFCPA has a penalty for “acting as a conduit” at $400 for each violation.  $400 x 3 = $1,200 fine.



But let’s say it was an honest mistake in reporting, that there was no shady conduit-like contributions.  Failing to file a contribution falls under 2.04.211(C)5, the penalty is $100/day for each violation.  3 violations x 3 days = $900 fine.


What else was possibly violated?  2.04.207(A)1(c) was also violated for 3 days as the incorrect amounts were reported for total of contributions reported (loans), expenditures made (incorrectly denoted in original campaign report as “In-Kind Contributions), and balance of funds at end of reporting period (off by $25.95).  There are no specific fines for these types of mistakes entered on campaign reports, so 2.204.211(C)13 (“Any violation of this Act not otherwise set forth herein”) may need to be applied, which is $100.  The Election Committee needs to determine how many of these “not otherwise set” kinds of violations occurred.  There are at least three violations in this area = $300 fine.

Lastly, 2.04.204(G) (promissory note or report on a form filed with City Clerk for candidate loan to themselves) was also violated.  2.04.207(A)1 of the LFCPA states this shall be reported on the 21st day before the election.  The penalty for not filing this report 2.204.211(C)1 is $400/day, 3 days elapsed before this report was made.  The Election Committee needs to determine if this is three (3) separate reports (although they each have different dates as noted above) or one(1) report of three (3) loans.  The total fine is either $1,200 or $400.


The Longmont Fair Campaign Practices Act was amended to get this kind of shady campaign activity out of our local elections.  It’s ironic (but not really) that someone like Ms. Fissinger, who essentially screamed from the podium in favor of this ordinance, will probably be the first to be found in violation of it.  By my math, there’s the potential for $3,600 in fines.  Maybe it’s time for a new round of “loans“.


As an aside, none of the above violations are part of the lawsuit or possible preliminary injunction of the LFCPA by the plaintiffs in the case (which includes myself).  So even if the judge in this case grants us a preliminary injunction, the above possible violations can still be acted on from the Election Committee.  The others brought forward by Karen Benker would be subject to the injunction as they pertain to Independent Expenditures.

GUEST EDITORIAL: Julia Pirnack on the First Amendment

Under the guise of promoting “transparency” in campaigns, this summer the City passed legislation that I believe violates first amendment protections. I am one of the plaintiffs in the lawsuit over the Longmont “Fair” Campaign Practices Act because it threatens freedom of speech and has direct negative impacts on our community’s ability to discuss policy issues and candidates. Freedom of speech means just that: freedom to discuss what you wish without undue regulation and oversight. While some exceptions have been allowed, the first amendment to the U.S. Constitution is clear: no law should be made infringing on free speech.

During my last months as Longmont’s mayor, a few people made it their business every week during council meetings and almost daily in the blogs, to launch personal attacks, lies and innuendo against me, other council members, businesses and others. At the time, many people asked me why I chose not to use my discretion as mayor to suppress attacks during meetings. My answer was always the same – people have the right to express what they wish, even though I may have thought their speech was politically motivated, downright deceptive or derogatory in the extreme.

If we set up laws, committees or regulators of “rightness,” we empower them to decide what we should hear based upon their own biases and motivations. We lose the battle to maintain our freedom to speak without threat of retribution or fines. Rather than government oversight, it is up to each listener to be their own regulator – for each individual to judge the value of the speech, its truth, and yes, the character of those speaking. 

Many years ago, a singular piece of federal legislation was proposed for adoption. This legislation was of such importance that one citizen decided extraordinary amounts of personal time and money must be dedicated to persuade the public on its merits. He decided to publish a series of papers promoting adoption of the legislation. For whatever reason, he wrote anonymously. He contracted with printers and enlisted a couple of personal and political friends to assist.

This series became the famous Federalist Papers written by Alexander Hamilton, John Jay and James Madison, supporting adoption of the U.S. Constitution. Thomas Jefferson wrote that the Papers were “The best commentary on the principles of government which was ever written.” 84 papers were published under the pseudonym “Publius.”

Had Hamilton tried to publish the Federalist Papers in Longmont today, under the Longmont “Fair” Campaign Practices Act he would have been threatened and “… fined for [his] political views” (August 2009 City Line) to the tune of $200 per day, because he didn’t report to the City clerk first, note on each paper how much they cost (he didn’t know how many he would publish), and notify candidates and committees of his activities. As a people, we have forgotten that good arguments have the real power to persuade and that no amount of regulation, red tape and reporting will promote public understanding.

Instead of clarifying the City’s position on the lawsuit’s allegations, our City posts threats for non-compliance in newsletters and on TV, and our City attorney plays politics, shown clearly in the Times Call article of October 3rd. The article states City attorney Mei finds the timing of the lawsuit “curious” and wonders why plaintiffs wouldn’t just ask the clerk what they can or can’t do. “Instead, they chose to make this into a much bigger deal.” Sorry Mr. Mei, but I think first amendment violations by City government are a big deal.

Resolving the violations in the LFCPA would benefit everyone in Longmont, not just one faction or another – that is the whole point. Rather than follow their current lawsuit-happy path (note the City demanded that this local issue be removed to federal court), there is a simple, lower cost option for the Council to pursue. Acknowledge that there may be legitimate concerns, roll back the amendments to the LFCPA that violate first amendment rights and ask the election commission to craft a piece of legislation that passes constitutional muster. If the “curious” summer amendments to the LFCPA really weren’t politically motivated by some members of our current Council, they should not have any problem with taking another look at legitimate citizen concerns.

One way to get even with your political enemies

Politics in Longmont are getting more political by the minute. Latest example is the work of the City Council’s handpicked Election Committee, which met for the first time on Oct. 12 to determine which complaints out of several filed by a disgruntled councilwoman against her political enemies were worthy of pursuit. They accepted two for further action. Unfortunately, by the committee’s lawyer telling the committee members–who at the next step will serve as both judge and jury–that they should assume “that all facts stated in the written complaints are true,” this quasi-judicial process has the markings of a kangaroo court.

Bolstering that assumption are two more items: the committee’s willingness to accept amendments to complaints already filed (where do the accusations end?); and the possible prejudice of an Election Committee member who intimated that she may have already made up her mind about one of the complaints, a complicated political issue involving a poll, saying the complainant’s name was used “as many as five times.” Keep in mind that the Longmont citizens who are defendants in this process are presumed innocent until proven guilty. The complainant promises to keep using this special committee to file more charges. Who’s the next victim of Longmont’s repressive Fair Campaign Practices ordinance?

Percy Conarroe
Res. Bldr. County 44 yrs.,
7 of them in Longmont.

Longmont residents sue City Council over attacks on free speech

NEWS RELEASE
For Release: September 18, 2009
Contact: Bob Askey
Phone: (303) 416-4307
Email: longmontleadership@gmail.com

Longmont residents sue City Council over attacks on free speech
Council warns citizens: “Don’t get fined for your political views”

LONGMONT – On Friday the Longmont City Council’s Fair Campaign Practices Act drew a lawsuit alleging that it violated First Amendment rights of individuals and organizations.

“Unfortunately, the Longmont City Council passed an incredibly restrictive set of campaign finance laws. This is a blatant attack on free speech. It limits the ability of citizens to discuss and criticize their elected officials, making it harder to hold politicians accountable – which we consider an egregious abuse of power.” said former Mayor Bob Askey, speaking for one of the plaintiffs.

“It might as well be called what it really is: The Longmont Incumbency Protection Act,” Askey added.

In August, the City of Longmont followed up with a warning notice in all utility bills, declaring that citizens could be fined for exercising their free speech, and it further directed that readers to “contact the city clerk” before engaging in any political communications.

“We think the city grossly misrepresented their own law, attempting to enforce it in an unconstitutional manner. The warning creates a real threat of prosecution for those trying to constitutionally exercise their right to free speech” said Scott Gessler, the attorney representing the plaintiffs.

The lawsuit challenges several provisions in the city code, including restrictions on electioneering communications, compelled notices on political advertising, and regulations applying to groups that were never intended to act as political committees.

“One has to wonder why the Council is so worried about free speech,” said Donny Ferguson, of Western Tradition Partnership. “This city council has attacked private property rights and then attempted to interfere in neighboring communities’ growth plans, and we believe people should know about that. Once they won office, this council tried to silence opposition by making issue discussion a minefield.”

Plaintiffs on the suit are Western Tradition Partnership (a grassroots non-profit focused on land and natural resource issues), Longmont Leadership Committee represented by former city Mayor Bob Askey, Longmont Area Realtors, former Mayor Julia Pirnack, and activist/blogger Chris Rodriguez who runs LongmontAdvocate.com.

To learn more about Western Tradition Partnership, visit www.blog.westerntradition.org
To learn more about the Longmont Area Realtors, go to www.longmontrealtors.com
To learn more about the Longmont Leadership Committee, go to www.longmontleadership.com
Chris Rodriguez’ blog can be found at www.LongmontAdvocate.com

City Council opposed to openness in government? (Times-Call guest opinion, published 9/10/09)

Wow, it has been a busy couple weeks in town on the 1st Amendment front for the City Council Bloc of 4 and its surrogates! Both the city and its supporters are suddenly actively seeking to prevent and stifle exchange of information and free expression of ideas.

In an attempt to disenfranchise the citizens of Longmont by eschewing a public, permanent record of city business as called for by the city charter, they’ve called to quit publishing city notices in the newspaper. Instead, they are tossing around the idea of internet only, or putting it in the City Line with your electric bill (which only comes once a month, I believe).  Continue reading…

Longmonts Fair Campaign Practices Act challenged

The new Longmont Fair Campaign Practices Act (LFCPA) apparently has some detractors.  I received a copy of the following complaint:

———————————————————————————-

CITIZENS FOR LIBERTY
Longmont Colorado

Mayor Lange,

Be advised that the Longmont Fair Campaign Practices Act (LFCPA) is an egregious violation of the Consitution of the State of Colorado, as well as an odious assault upon the rights and citizens of Longmont and Colorado.
The Citizens for Liberty is currently preparing a legal challenge to this ordinance.
Refer to: Colo. Const. art. II, sec.10; cf. Colo. Const. art. XXVII, sec. 5
The City of Longmont is hereby directed to immediately withdraw this ordinance.
The City of Longmont is cautioned to seek competent legal counsel, and citizen input, before attempting to unconstitutionally restrain the rights of citizens.
You have been advised and warned.
Arlo Fenointer
Director
Citizens for Liberty
———————————————————————————
I don’t know if this person or group really exist, I’ve never heard of them nor has anyone else I’ve asked.  I’m not so sure of the validity of any of the above, but that’s not to say someone else out there might be thinking the same thing.  I have some serious issues with parts of this new ordinance which I will spell out one at a time – mostly unintended (I hope and assume) consequences.
After sending several questions and concerns to the Election Committee, and going through this ordinance over and over, I’m coming to the opinion that the effect of these new rules, intended or not, will stifle citizen involvement in the campaign process.  I think more people will feel the rules are so complex and convoluted that it’s just not worth their effort to get involved, unless they have an attorney on retainer at all times.  I’ll give you specific examples in the weeks ahead.
I didn’t like that the budget for their “special counsel” had to be as high as it was ($10,000 for now), but considering what may be to come, they might need every penny of that and then some.  The Election Committee and City Clerk may not answer certain questions pertaining to the ordinance, except with the disclaimer “I’m not an attorney” and refer it to the City Attorney or Special Counsel.  The fact they are concerned about the money for this special counsel tells me they expect legal challenges, or questions they just can’t or wont answer.
Which brings me back to the beginning of this story: If they have to have an attorney on hand all of the time, and all of the murkiness of this ordinance (in my and others opinions), maybe it wasn’t written as well as previously thought.  Or maybe people are realizing that if read literally this ordinance is not very citizen friendly.