Kathleen Curry’s campaign finance case sees another delay

“I have to keep fighting this, because it’s not right”

With more than a year and a half already spent in litigation, former state representative Kathleen Curry is facing another delay in her case to get the campaign finance laws thrown out that restrict the amount independent and third-party candidates can raise in an election cycle.
In 2009, Curry, a Democrat-turned-independent candidate for House District 61, learned that as a third-party candidate, she would be able to collect only $200 per donation for the general election, while a major party candidate could collect as much as $400 from the same donor.
Although Curry ultimately lost her bid to run a successful write-in campaign as an independent, running with a financial handicap was a matter of fairness that she felt couldn’t go unchecked. So she—along with Joelle Riddle, Gary Hausler and the Committee to Elect Kathleen Curry—asked the court to overturn the state’s campaign financing law.

“If you don’t test these things in court they will just continue,” Curry says. “It affects the viability of any third-party candidate trying to offer the voters an alternative.”
According to Curry’s lawyer, Bill Zimsky, who has worked on behalf of third-party candidates in the past, Colorado’s laws are in violation of both federal statute and the U.S. constitution.
The issue was enough to propel the case to the Tenth Circuit Court of Appeals, which then passed it onto the Colorado Supreme Court for being a state matter rather than a federal one.
Then, after one of the state’s seven Supreme Court justices recused himself for a perceived conflict, the six remaining justices heard oral arguments September 27. At the end of the hour-long hearing, the case appeared to be leaning Curry’s way, with the state’s attorney claiming that Curry was so successful in her independent campaign, she didn’t need the extra money.
In hearing the oral arguments, the justices were also looking at whether or not a campaign contribution given in one election cycle is necessarily given for that election cycle, or if it is appropriate for a donation given in a primary, for example, to be used in a general election.
“How can you give a contribution to someone for a primary election and they get to spend it in the general election?” one justice asked. “That’s the part I’m not understanding.”
The state’s attorney responded that it was like money given for a birthday, but not spent on the birthday. The argument clarified the state’s position that there is no requirement that money given for one election is used for that election. But the state’s lawyer kept emphasizing that candidates who could face a contested primary would need the extra money.
In a brief, Zimsky pointed out, “Over the last three election cycles, out of the 590 primary elections involving offices subject to the [statutory] campaign contribution limits, only 63 [10.7 percent] involved contested elections.”
For those who didn’t face a contested election in the primary, the justices confirmed that all of their campaign contributions could be used in the general election. For third-party candidates who got onto the ballot with a petition, the state reasoned the additional funding wasn’t necessary, which seemed to frustrate a few of the justices.
Primarily, three of the justices engaged the lawyers from both sides in their questioning. And while they pinned down the state, as well as Zimsky, about the arguments they made and seemed interested in the topic, they ultimately decided not to rule on the case. Instead, they kicked it down to the Tenth Circuit Court of Appeals, which had sent it up in the first place.
“We were shocked that they didn’t rule. They punted the ball back to Fed district court that already punted it once,” Curry says. “But at least the case is still alive and that means we still have a chance. At least they didn’t rule against us.”
Zimsky says he expects the Tenth Circuit Court to rule on the substance of the issue, but he doesn’t know when and he doesn’t know how the justices will rule.
But as the legal back-and-forth continues, Curry sees other independent and third-party candidates gearing up for another election cycle in which they’ll be able to collect only half as much as their Democratic or Republican counterparts.
“For me this is about choices for the voters. They’re not happy with current governmental structure. If you can get more third-party candidates to run viable campaigns, it might make some improvement. But they cannot run viable campaigns if they can’t collect an equal amount of donations [as the major party candidates]. I don’t want special treatment, I just want an even playing field,” Curry says. “And I have to keep fighting this, because it’s not right.”