On the August 25 broadcast of PBS affiliate KBDI Channel 12's Independent Thinking, host Jon Caldara and guest Shayne Madsen, a Colorado election attorney, misled viewers about the origin of a controversial “emergency rule” adopted by Secretary of State Gigi Dennis (R). While Caldara professed to have “been reading the newspaper reports about this,” neither he nor Madsen explained that the rule change to which they referred reportedly was requested first by lawyers for Republican gubernatorial candidate Bob Beauprez's campaign, the Colorado Republican Party, and the Republican-backed Trailhead Group, and that Dennis subsequently adopted it “in its entirety.” Rather, Madsen said of the new rule, "[T]his is not the product of just a political appointee or politically elected person."

Caldara is president of the conservative Independence Institute. Madsen previously represented then-Colorado Secretary of State Donetta Davidson's (R) office in the contentious 2003 redistricting case. Caldara's other guest on the show, Ben DeGrow, is a policy analyst at the Independence Institute.

The Denver Post reported August 23 that Dennis adopted several rules that “appear to make it more difficult for Democratic campaigns” and “were issued just two and a half months before the November election.” According to the Post, the rule Caldara and Madsen discussed for the duration of the program requires “groups that have membership dues” -- such as labor unions -- to get “written permission from each member to transfer the dues to a political or small-donor committee.”

Despite repeatedly discussing the origins of this rule change, Caldara and Madsen never mentioned media reports indicating it was initiated by GOP-affiliated lawyers. As Colorado Media Matters has noted, the opening paragraphs of an August 24 Denver Post article reported:

Republican Secretary of State Gigi Dennis made controversial changes to Colorado campaign-finance rules after requests from lawyers who work for the state GOP, gubernatorial candidate Bob Beauprez and a powerful Republican political committee, records show.

The attorneys filed documents with Dennis' office in February requesting limitations on the campaign activities of some traditionally Democratic groups, such as unions and small-donor committees.

The Post article went on to report that Beauprez campaign attorney Scott Gessler and attorney John Zakhem, who counsels the Trailhead Group political committee and the state Republican Party, “proposed requiring groups to get written permission from each member to transfer dues to a political or small-donor committee.” This proposal, the Post reported, “was adopted in its entirety by Dennis.”

The Post also reported that “Gessler acknowledged politics played a role”:

Lawyer Scott Gessler, who does work for Beauprez and his campaign, and attorney John Zakhem, who counsels both the GOP's Trailhead Group political committee and the state Republican Party, said they made the in-person requests to Dennis on behalf of themselves, not a client.

But Gessler acknowledged politics played a role.

“It was not my sole motivating factor to help Bob Beauprez, but was I conscious of it? Yes,” he said. “The rules are riddled with exceptions that help out Democratic constituencies.”

An August 25 Rocky Mountain News article similarly reported, “The language in one new provision [adopted by Dennis] was taken verbatim from a recommendation by GOP attorneys John Zakhem and Scott Gessler.”

Discussing the new rule on Independent Thinking, Madsen asserted that Dennis “has a very competent professional, nonpartisan staff, so this is not the product just of a political appointee or politically elected person.” Neither Caldara nor Madsen acknowledged that, according to media reports, the rule was not written by Dennis's “nonpartisan staff” but, rather, by Republican attorneys. As Colorado Media Matters has noted, Dennis was appointed to her current position by Gov. Bill Owens (R), who helped found the Trailhead Group. The Colorado Republican Party's website lists Dennis along with other Republican officials as part of “Your Republican Leadership.”

In addition, Caldara twice asked Madsen about Dennis's motives in adopting the new rule. Caldara first asked: “What was the emergency and how does an emergency rule happen?” Madsen answered, in part: “Her office is always besieged with a variety of questions asking: 'What do I do in this situation, what do I do in that situation?' ... I'm just guessing that she felt a need to clarify, in advance of the election, what the rules are -- not only in this area, but in other areas.”

Later in the program, Caldara again posed a question concerning the impetus behind the new rules and this time noted the claims of partisanship: “Is this really something that just came out of thin air? Did Gigi just come up with this idea? I know a lot of people say this is purely political. At the end of her day, is she doing her job, or is she making new law?” Madsen responded: “I think she's doing her job. ... I think the Secretary of State's office, my guess is, wanted to make sure that the exception for membership organizations was narrowly drawn.”

From the August 25 broadcast of Independent Thinking on KBDI:

CALDARA: I've been reading the newspaper reports about this, this change. And I've been surprised that the newspapers really haven't reported, quite simply, what this new emergency rule does.

[...]

CALDARA: I want to take a statement coming out of a new ad -- coming from a 527 group. And these --

MADSEN: Oh, shadow groups.

CALDARA: Shadow groups, one of the shadow groups
-- and it was Clear Peak Colorado put out this wonderful ad I've been listening to on the radio ripping Gigi Dennis, our secretary of state. And this is -- here's a quote: “Dennis issued a ruling that snuffs out the right to political speech and public action for people just like you.” (To Madsen): Let me ask you, did Gigi Dennis actually snuff out political speech by putting in this rule recognizing that workers have a right to decide if their money is used for politics?

MADSEN: Well in my view, absolutely not. I think that Secretary of State Dennis -- and by the way, she has a very competent professional, nonpartisan staff, so this is not the product just of a political appointee or politically elected person -- I think that what she erred in favor of is increased transparency in the entire process -- making sure that if somebody's money is used for political purposes, they know about it. So I don't think it snuffed out anyone's rights at all. It actually gave more rights than before.

CALDARA: I mean, nobody's right to political speech is being killed here. All you have to do is get permission to spend somebody else's money.

MADSEN: It certainly has been the law in some other states -- not the majority of states, but it has been the law in states like Michigan, Ohio, the State of Washington -- variations of what we see in Colorado that was adopted in the emergency rule. But I don't think that what she did was at all radical or would disrupt the normal association in the way that it does business.

CALDARA: Let me ask you a couple of technical questions. This is an emergency rule. What was the emergency and how does an emergency rule happen? Was it that Gigi Dennis -- and I haven't spoken to her about this -- is this something that's, “Oh my God, we've got to do this right now,” is there political pressure to do it? What makes an emergency rule and is it something she just does on a whim?

MADSEN: Well, without putting words in her mouth, because obviously I have not talked with her either, but the secretary of state's office issued some emergency rules in July in campaign finance; they issued emergency rules in August, obviously, on campaign finance -- this rule is just one of many. She did have a hearing on this rule; she had 60 days notice in advance; it was part of an overarching group of reforms in which she is required by constitution and statute to implement our campaign finance laws. Her office is always besieged with a variety of questions asking: “What do I do in this situation, what do I do in that situation?” Procedurally, they were emergency rules, but in reality, they followed a longer process than many rules in terms of advance notice and a hearing. But I'm just guessing that she felt a need to clarify, in advance of the election, what the rules are -- not only in this area, but in other areas.

CALDARA: And she's done this before.

[...]

CALDARA: Is this really something that came out of thin air? Did Gigi just come up with this idea? I know a lot of people say this is purely political. At the end of her day, is she doing her job, or is she making new law?

MADSEN: I think she's doing her job. Is the whole drumbeat of paycheck protection been part of Colorado politics for a long time? Yes, it has.

[...]

MADSEN: They wanted -- I think the Secretary of State's office, my guess is, wanted to make sure that the exception for membership organizations was narrowly drawn so that you couldn't just create them out of thin air and that there was some transparency involved.