Let’s say you employ someone who wins a seat in the state legislature, and the person starts publicly making antisemitic, white nationalist, or otherwise racist remarks. Let’s say further that the legislator announces opposition on racist grounds to a Holocaust Memorial resolution such as the one the legislature regularly passes. Do you have a right to say, “Look, bub, you’re hurting my business and being a jerk, and if you don’t knock it off I’m going to fire you”?
Yes, obviously you have that moral right (assuming you’re within contractual obligations). It’s your job to offer and to revoke at will. The other person has no right to remain on your payroll while publicly advocating racism and legislating accordingly. (Notice here that I’m distinguishing rights as a moral concept from legal “rights” as defined by governments that may be at odds with the proper moral basis of rights.)
Yet, according to a straight interpretation of Colorado statute 18-8-306, “Attempt to influence a public servant,” you threatening to fire the racist legislator is a felony.
The need for reform
The main part of the text says: “Any person who attempts to influence any public servant by means of deceit or by threat of violence or economic reprisal against any person or property, with the intent thereby to alter or affect the public servant’s decision, vote, opinion, or action concerning any matter which is to be considered or performed by the public servant or the agency or body of which the public servant is a member, commits a class 4 felony.”
I’m not as worried about the parts about deceit or threats of violence. Obviously people should not be allowed to submit fraudulent forms or to threaten public officials with violence.
That said, it’s pretty ridiculous to count fudging a form as on the same level as (say) threatening to murder a legislator’s family. Yes, threatening violence also is covered under other statutes, so maybe the distinction already is adequately handled. Still, it’s probably worth separating out severity of offenses in the statute at hand.
I’m more worried about the part about “economic reprisal,” which seems straightforwardly to include the case I describe above.
And note how broad the statute is. Someone commits a felony not only by seeking to influence a public official’s votes and official acts but the official’s “opinion . . . concerning any matter which is to be considered or performed by the public servant.”
Threatening to boycott a legislator’s business over some policy, or even threatening to help defeat a legislator in an election and so deprive the legislator of the related salary, also are things that people have a right to do but that nevertheless are outlawed by the statute in question, at least according to a literal reading. Obviously, the legislature should not outlaw things that people have a right to do!
Maybe you would argue that no judge in their right mind would consider the sorts of cases I’ve described as falling under the statute. You might be right. Regardless, the legislature has a moral responsibility to write clear laws, not pass vague and ambiguous statutes and then count on judges to ignore the literal meaning of the text and instead “interpret” the statutes in common-sense ways. Vague, ambiguous law is an open invitation to corruption and political persecution.
While legislators are at it (I’m sure they’ll rush to institute the reforms I outline), they should change the title to “Undue attempt to influence a public servant,” to distinguish things such as fraud and threats of violence from legitimate forms of influence. In the broadest sense, seeking to influence public officials is precisely what political engagement is all about.
The case of Sonya Jaquez Lewis
As Marianne Goodland reported July 21, “Former state Sen. Sonya Jaquez Lewis of Longmont has been charged with attempting to influence a public servant. . . . Jaquez Lewis resigned in February during an ethics investigation into alleged mistreatment of her legislative aides.”
At issue in the criminal charges are credible claims that, in her response to the legislative ethics committee, Jaquez Lewis “‘fabricated’ at least one letter of support from a former aide” and perhaps fudged other letters as well, Goodland writes. The arrest warrant backs this up.
Obviously if Jaquez Lewis did what she is accused of doing, that was bad and an obvious violation of the “deceit” part of the statute in question.
On the other hand, “Oh my God a politician lied” hardly is earth-shattering news. We all know the old joke about how to tell if a politician is lying. I mean, are we seriously going to criminally prosecute every single person, including every public official, who ever lies to a public official for the purpose of affecting some public proceeding? Give me a break here. Obviously in this respect the statute will be selectively enforced, which again opens the door wide to bias and selective prosecution.
As the Colorado Sun helpfully reminds us, a class 4 felony is “punishable by up to six years in prison and a $500,000 fine.” Obviously, locking someone in a cage for six years for faking a letter to the ethics committee, as bad as that is, would be completely insane. But something being completely insane does not stop the legislature from enabling it!
I don’t believe for a second that Jaquez Lewis ever would face such a severe penalty for such a low-grade offense. My point is that the legislature ought not pass laws that beg for selective enforcement, selective prosecution, and selective sentencing.
The case of Rick Stanley
Rick Stanley, who (to my horror) ran for U.S. Senate on the Libertarian ticket back in 2002, violated the same statute in a much more serious way. The Denver Post reported in 2007, “The Colorado Court of Appeals . . . upheld the six-year prison term of gun-rights advocate and 2002 U.S. Senate candidate Rick Stanley for threatening two Adams County judges. Stanley was convicted of two counts of attempting to influence a public servant after he threatened to have a militia force arrest the two judges who heard a gun case against him. The judges were protected by police and SWAT teams after the threats.”
So, yeah, threatening to send out your private “militia” to arrest judges is an “attempt to influence a public servant” in the most serious sense.
But the legislature’s badly composed law calls for the same felony charges whether you fake a letter to a committee, threaten to arrest a judge, or threaten to murder a legislator’s family. Any sensible person can tell that those are offenses of vastly different severity.
A missed opportunity
The legislature revised 18-8-306 in 2021 but failed to make the sort of substantive changes I’ve suggested. The legislature made one important change by exempting “providing false identifying information to law enforcement authorities” (something covered by statute elsewhere). Beyond that, all the legislature did was language-police the bill, changing “him” and “he” to “the public servant,” because, I guess, using gender-neutral language is way more important than actually crafting a statute that makes sense.
But hope springs eternal! Maybe next year the legislature will get serious about its job of drafting laws that are clear, sensible, and not easily abused. Perhaps legislators’ constituents will even benignly “influence” them to do the right thing.
Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.
