Out of order

Lawmakers should drop probe into lobbyist's speech

Published May 9, 2007 at midnight

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Lobbyist William Mutch may not have been smart, and he may not have even told the truth.

But that doesn't mean the Colorado legislature is entitled to retaliate against protected free speech and possibly punish him.

Indeed Mutch has already received his punishment, and it fits the crime.

Mutch is the target of an ethics complaint filed by Rep. Alice Borodkin, D-Denver. She accused him of authorizing deceptive robo- calls to her constituents aimed at sinking a bill that would make it easier for home buyers to sue builders.

An ad hoc three-member ethics committee has been hearing testimony on the case and will soon issue its report to the Legislative Council's executive committee. The bipartisan committee, composed of the six top legislative leaders, will either dismiss the complaint or prescribe "remedial measures" up to the suspension of his "lobbying privileges."

We thought lobbying lawmakers was something any citizen was entitled to do. We didn't know it was a "privilege." But never mind that for now.

More background: Mutch was executive director of Colorado Concern, a group of top business leaders who didn't like House Bill 1338. Since signed into law, it will make it easier for buyers to sue builders by invalidating waiver provisions that builders usually put in purchase contracts.

Homebuilders argue that their increased liability will boost the price of housing. Colorado Concern helped arrange automated "survey" robocalls warning recipients that plaintiffs' attorneys were promoting a bill that created a "trial lawyer home tax." They would allegedly collect fees when homes were sold - by subsequent owners as well as the original builder.

Borodkin argued that the questions were misleading and that the bill hadn't even been introduced yet. What's more, it had nothing to do with real estate taxes.

It's clear that neither Colorado Concern nor the homebuilders distinguished themselves in the wake of her charges. Apparently they had disagreed on the wisdom of the robocalls. Instead of standing together, they took turns trying to throw each other under the bus. Mutch himself originally said he wasn't involved in the robocalls - a claim belied by e-mails that later surfaced.

And that's why he probably has little future at the statehouse as a lobbyist. His credibility is damaged. He has been placed on paid leave by his employer.

Once again, we've seen someone in public life unhorsed not by the original charge but by the subsequent coverup.

The original charges, meanwhile, are bogus and should be dismissed. The robocalls, however lurid and misleading, were part of a political debate and thus protected by the First Amendment. The so-called "trial lawyer home tax" may not have been technically a tax, but in political debate any extra fee or cost is often referred to as a tax by opponents. The legislature should also remember that political campaigns aren't restricted to just before an election. There is no reason why people can't campaign for or against bills at any time, even during the session.

HB 1338 was a serious bill that could have serious consequences for home prices in Colorado. It was in fact promoted mainly by trial lawyers. When the robocalls went out, the draft bill did indeed make subsequent owners as well as contractors liable for defects. Their liability wasn't removed until later.

The industry had every right to campaign against it. The robocalls may not have been wise, but they were certainly legal. The legislature should drop the ethics investigation and rewrite Joint Rule 36 before it puts a further chill on political speech.

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