Colorado Observer Questions CEW’s motives, mission

Valerie Richardson of Colorado Observer writes a compelling piece on what is really behind CEW’s ethics compliant. Watchdog Group? Litigation Machine? Turf war?

You Decide

Colorado Ethics Watch: Left-Wing Litigation Machine or “Nonpartisan” Watchdog?
May 29, 2012
By Valerie Richardson

Critics accuse CEW of filing meritless complaints and lawsuits against conservatives in a deliberate effort to drain their time and resources

DENVER–When Jessica Peck found out earlier this month that Colorado Ethics Watch had filed a complaint against her with the Internal Revenue Service, she was stunned, outraged–but also strangely flattered.

Peck serves as executive director of the Open Government Institute, a fledgling non-profit aimed at promoting government transparency, but she’s also well known in political activist circles and one-time legislative candidate.

Being targeted by Colorado Ethics Watch signaled to her that her five-month-old group had arrived.

“It’s part of the game,” said Peck. “When Ethics Watch hit us with a complaint, I thought, ‘Wow, that’s pretty good. They must think we’re important.’ I actually think it’s flattering that the left thinks we’re some sophisticated machine.”

Whatever the merits of the complaint, Peck’s biggest crime may have been her Republican registration, according to CEW’s legion of conservative critics. Founded in 2006, CEW identifies itself as a non-partisan watchdog group that “uses high-impact legal actions to hold public officials and organizations accountable for unethical activities.”

The reality, say critics, isn’t quite as high-minded. They accuse CEW of engaging in partisan politics by filing meritless complaints and lawsuits against Republicans and conservatives in a deliberate effort to divert time and funding from their campaigns or missions.

What really annoys conservatives is that as often as not, it works.

Independence Institute president Jon Caldara, who’s no stranger to lawsuits as part of his work on ballot measures, says it doesn’t matter whether the complaints have merit or not–they still accomplish the goal of forcing the defendant to fritter away funding.

“I’ve won each and every one of them [lawsuits], but it zaps you. Any little complaint, and I spend $100,000 like this, which is money I could have been using on the campaign,” said Caldara on his weekly KBDI-TV show, “The Devil’s Advocate.” “It’s not really about winning a lawsuit. It’s a political tool to drain your opponent. I’ve been the victim of this. This organization, Colorado Ethics Watch–that’s really their bread and butter.”

CEW executive director Luis Toro insisted there is nothing frivolous about its legal challenges, arguing that the group has logged more wins than losses in its six-year tenure. He described the recent rash of conservative complaints against CEW on programs like “The Devil’s Advocate” and KOA-AM’s “The Mike Rosen Show” as an attempt to change the subject.

“We’re trying to win the case. It’s a complete mischaracterization to say we’re picking losing fights to drain resources,” said Toro. “When you don’t have another defense, you blame the messenger. Every time we take action, we know we’re going to get criticized for it, and that’s okay.”

Nobody has tangled with CEW more than the Hackstaff Law Group, a Denver elections law firm. In February, the firm scored a unanimous decision before the Colorado Supreme Court against a CEW-filed lawsuit against two pro-Republican 527 committees, the Senate Majority Fund and Colorado Leadership Fund.

The Republicans may have won the battle, but their attorney, Hackstaff’s Mario Nicolais, makes the argument that CEW won the war. The lawsuit took four years to resolve, at a cost of untold thousands in legal fees. The publicity surrounding the case also muddied the reputations of the Republican fundraisers and, by extension, Republican candidates.

What Nicolais found especially galling was that CEW could have filed the same lawsuit against virtually identical 527 fundraising groups run by the Democratic Party–but didn’t.

“I don’t think they [CEW] have ever brought a lawsuit against a Democrat. They just issue statements,” said Nicolais. “The lawsuit we won in February–they brought these claims against Republican groups when Democrat groups were doing exactly the same thing.”

Toro responded by ticking off a list of recent CEW actions with no partisan tint, such as its opposition to a recent bill giving certain groups quicker access to election records under the Colorado Open Records Act.

In March, the CEW won a decision by the Colorado Independent Ethics Commission when it ordered the Public Trustees Association of Colorado to pay $2,944, the maximum fines, for violating the state gift ban after the group paid for rooms at a Black Hawk hotel for 32 county public trustees.

“The Public Trustees Association is a bipartisan group. The Denver Post paid attention to the story, but political types ignored it because it doesn’t fit the narrative,” said Toro. “You have to be careful not to let the narrative overrun the facts.”

Has CEW ever brought a lawsuit against a Democrat or liberal group? Nicolais says he can think of one example: In 2008, CEW filed a legal challenge against Denver District Attorney Mitch Morrissey–but the focus of the lawsuit was the Democrat’s refusal to launch an ethics investigation against Republican state Sen. Andy McElhany.

Toro insists his group doesn’t look at party. “It’s not about what political party you are, it’s about making sure Colorado has a strong ethics laws and strong open-records law,” said Toro.

CEW represents the first and only state affiliate launched by Citizens for Responsibility and Ethics in Washington (CREW), led by Melanie Sloan, whose resume includes working for committees headed by Democratic Congressman John Conyers, Sen. Charles Schumer and then-Sen. Joseph Biden.

Like CEW, CREW has come under fire for what critics describe as a liberal agenda in non-partisan clothing. “Washington is split when it comes to CREW’s claim that it is nonpartisan. Some find it to be a helpful watchdog organization and others suggest it is more of a vicious attack dog,” said the Daily Caller in a Sept. 20 post.

CREW may be best known for its annual list of the “most corrupt” members of Congress, which inevitably features more Republicans than Democrats. The lone exception was its 2009 list, when it listed seven Republicans and eight Democrats, in a year when Democrats outnumbered Republicans 256-178 in the House and 55-41 in the Senate. The 2011 edition features 10 Republicans and four Democrats.

CREW and CEW are listed with the IRS as non-profit 501(c)3 organizations, meaning they cannot engage in partisan politics. According to its 2010 tax returns, CREW reported $3.1 million in revenue; of that, $245,582 went to its Colorado project.

Non-profits are not required to release the names of their donors, but in The Blueprint, authors Adam Schrager and Rob Witwer identify CEW as part of the network spearheaded by the Colorado Democracy Alliance and funded by the wealthy Democrats who comprise the so-called “Gang of Four.” One of CEW’s three full-time staffers was previously employed by the Gill Foundation, founded by multi-millionaire and “Gang of Four” member Tim Gill.

Toro advised against putting any stock in the book, noting that it was published in 2006, the same year CEW was founded. “To ask us in 2012 about 2006–I think that’s not the appropriate way to look at it,” said Toro.

On one score, both CEW and its critics agree: The increasing complexity of state and national campaign-finance laws, made more so by a string of court decisions, have made it more difficult than ever to figure out who’s giving the money and where it’s going.

Toro contends that the proliferation of rules has created a demand for greater oversight by independent groups such as CEW. His critics argue the maze of campaign laws makes it too easy for campaigns to run afoul of the rules, or at least appear to do so, thus making them vulnerable to legal challenges.

“That’s why CEW exists–because the rules are so complicated,” said Nicolais. “It’s a dramatically effective tool.”

Critics of CEW have taken to pronouncing its acronym “sue,” because “that’s what they do,” says Nicolais.

But Toro maintains that his group fills a void. He noted that the state Independent Ethics Commission may give advice, hear complaints and issue findings, but it relies on private groups like CEW to bring the actions in the first place.

“We’re not here to try and litigate constitutional law,” said Toro. “We’re just trying to enforce the ethics laws Colorado already has.”