Jimmy’s Denver Gazette Column | The gaping hole in Jena Griswold’s ‘firewall’
Written by Jimmy at the Crossroads on May 7, 2021
When it comes to campaign finance complaints, Secretary of State Jena Griswold 2021 seems to forget Griswold 2019. Contrary to her past pledges and the law, she is now a “Final Decision Maker.”
According to a December 2020 memorandum, Griswold is one of four Final Decision Makers on campaign finance complaints, along with her deputy, legal/policy director and chief of staff.
I’m confused. Unless something’s changed, the relevant law is clear about who gets to make the “final agency decision.” “ ‘Deputy secretary’ means the deputy secretary of state,” statute says, “or the deputy secretary’s designee.” I guess Griswold’s appointed deputy (currently Christopher Beall) can name his boss as his “designee” if he wants?
But I’m getting ahead of myself. Let’s go back to 2018, when Tammy Holland won her lawsuit against then-Secretary of State Wayne Williams in federal court. Holland challenged the old campaign finance enforcement law, which had permitted third parties to file complaints with the secretary of state’s office.
Without any screening, complaints were automatically referred to an administrative law judge (ALJ) within three days, to be followed by a hearing within 15 days. In his ruling, District Court Judge Raymond Moore declared the law unconstitutional. With the enforcement process tossed out, it fell upon the SOS to create a temporary one.
Williams decided that, once any campaign finance complaint was filed, the elections division would investigate and determine whether there were sufficient grounds to move forward. They could also dismiss the filing or offer a chance for the accused to cure it. If the elections division decided to proceed, it would go to the ALJ and ultimately to the deputy SOS for final order.
As an elected official himself, Williams opted for a firewall to keep the secretary and politics out of it – clearly a wise precaution. Later, his process was largely codified by the legislature in SB19-232. Testifying before the Senate in favor of the bill, Griswold stressed the need for fairness in adjudicating campaign finance disputes.
“I agree with your assessment that our rules have to be fair and nonpartisan…Democrats, Republicans, independents, so that’s a top concern for me is making sure that everybody can really have faith in our system,” Griswold 2019 testified.
So, why is Griswold 2021 a “Final Decision Maker?” She certainly understands the value of a firewall. Indeed, throughout her testimony, Griswold 2019 stressed the “firewalls internally to make sure that as decisions are being made by the civil servant staff, [they are] firewalled against the appointed staff.” What’s changed?
When SB19-232 became law, only two significant things changed: the deputy would get to approve staff recommendations for dismissal, and the department of state could conduct campaign finance audits. But the deputy or the deputy secretary’s designee gets to be involved in this process. Clearly, if the SOS herself could be involved, the statute would have mentioned that. It doesn’t. Implication: Firewall the secretary of state.
Recently, outgoing communications director Betsy Hart insisted Griswold is “firewalled” from “the decision whether to investigate and prosecute campaign finance complaints [that] are made by civil servants on the Campaign Finance Enforcement Team.” Notice how she excluded Griswold’s status as a “Final Decision Maker” – the most pivotal role.
Last year, the Colorado Democratic Party was found to owe $12,000 in overdue filings. The secretary’s office agreed with an ALJ’s recommendation to reduce the fine to $50. Such merciful treatment doesn’t seem to apply to conservative groups, however.
Consider one of several examples. In 2020, the department fined the conservative Stop the Wolf Coalition for failure to file as an issue committee and subsequent late fees. Initially, the ALJ recommended a $1,000 fine. Instead, SOS charged…$22,000. Yes, the deputy or designee makes the final decision, but why such an excessive fine? Even worse, the Coalition can’t appeal.
Oh sure, they’re allowed to appeal. In her testimony, Griswold 2019 emphasized, “(I)t’s also really important to remember…any final agency decision on campaign finance can be appealed to a district court.”
Yet what if you can’t afford it? Reportedly, the nonprofit already owes its attorney, former SOS Scott Gessler, nearly $60,000. Thus, the ability to appeal a crushing fine has been robbed because they can’t afford representation.
The crux of Holland vs. Williams was that campaign finance laws shouldn’t be used to pummel political enemies. Now the pummeling may well be coming from the SOS against her enemies, armed with significant taxpayer resources. The private complainant doesn’t have to do anything – even foot the bill.
In less than three years, Griswold is already on her third deputy, legislative liaison and legal/policy director, as well as fifth chief of staff. As of April 29, she’s pursuing her third communications director. Perhaps she added herself to the list of “Final Decision Makers” to be certain at least one person will actually be around?
Either way, Griswold 2019’s devotion to “making sure that everybody can really have faith in our system” seems to have gone out the window. Some firewall.