Campaign Integrity Watchdog LLC v. Colorado Secretary of State.
2025 COA 18. No. 24CA0128. Fair Campaign Practices Act—Campaign Finance Complaints—Investigation and Enforcement—Separation of Powers—Due Process.
February 20, 2025
Campaign Integrity Watchdog LLC (Watchdog) is a limited liability company that pursues private enforcement of campaign and political finance matters. Alliance for a Safe and Independent Woodmen Hills (Alliance) is a “political committee” under Colo. Const. art. XXVIII. Watchdog filed a complaint against Alliance with the Colorado Secretary of State (secretary) in 2022 under CRS § 1-45-111.7, alleging that Alliance failed to file an annual report, failed to maintain an active registered agent, and failed to file an amended committee registration. The Elections Division moved to dismiss Watchdog’s complaint pursuant to § 1-45-111.7(3). The deputy secretary dismissed Watchdog’s complaint. Watchdog appealed the deputy secretary’s dismissal order to the district court, arguing that § 1-45 111.7 was unconstitutional and that the deputy secretary erred by dismissing its complaint. The district court affirmed the dismissal of Watchdog’s complaint.
On appeal, Watchdog contended that § 1-45-111.7 is unconstitutional under the Colorado Constitution because it conflicts with Colo. Const. art. XXVIII, § 9(2)(a). Colo. Const. art. XXVIII governs campaign and political finance and gives the secretary authority to administer and enforce its provisions. In Holland v. Williams, 457 F.Supp.3d 979 (D.Colo. 2018), the US district court held that art. XXVIII, § 9(2)(a)—which allows complaints alleging a campaign finance violation and requires referral of such complaints to an administrative law judge (ALJ) for a hearing and decision—is facially unconstitutional. The secretary has thus been prohibited from operating in accordance with section 9(2)(a) since 2018. A new campaign finance enforcement scheme replaced section 9(2)(a)’s requirement that campaign finance complaints be automatically referred to an ALJ at CRS § 1-45-111.7. Under the new statute, the Elections Division handles initial review of campaign finance complaints. Because the secretary cannot enforce section 9(2)(a), there is no conflict between that enforcement mechanism and the new enforcement mechanism in § 1-45-111.7. Therefore, Watchdog has not proved beyond a reasonable doubt that § 1-45-111.7 is unconstitutional on its face on the ground that it conflicts with § 9(2)(a).
Watchdog also argued, as a matter of first impression, that § 1-45-111.7 is unconstitutional on its face because it violates the Colorado Constitution’s separation of powers doctrine and its due process principles. However, when, as here, the final agency decision is subject to judicial review, agency adjudicative procedures do not violate separation of powers principles. And Colorado courts have rejected similar due process arguments—that the use of executive-appointed ALJs and panels rather than judicial branch officers violated the fundamental right to a fair hearing—in the workers’ compensation context. Accordingly, Watchdog failed to prove beyond a reasonable doubt that § 1-45-111.7 is unconstitutional on its face on the grounds that it violates due process.
The court of appeals declined to address Watchdog’s undeveloped as-applied challenge to § 1-45-111.7.
Watchdog further contended that the district court erred by affirming the deputy secretary’s dismissal of its complaint, arguing that its complaint alleged sufficient facts that Alliance failed to (1) file a mandatory report in May 2022 and (2) maintain an active registered agent. First, Alliance is not eligible for termination and had not been terminated under the secretary’s rules, so the Elections Division lacked authority to sua sponte exempt it from mandatory reporting requirements. Accordingly, the district court erred in holding that the deputy secretary did not exceed his authority because it agreed that Alliance was not required to file a report in May 2022. Second, Watchdog’s allegations regarding Alliance not having a registered agent were that the agent had fled Colorado and been disbarred. The court agreed with the district court that these allegations, without more, were insufficient to show that Alliance did not have a registered agent.
Because the campaign finance enforcement mechanism in § 1-45-111.7 is constitutional and Alliance had a registered agent, the order was affirmed in part. Because the secretary erred by dismissing the allegation that Alliance had failed to file reports required by Colorado’s campaign finance laws, the order was reversed in part and the case was remanded for further proceedings.