April 29,2002 Office of the General Counsel Federal Election

KUTAK ROCK LLP , AT LANTA C H ICAQO SUITE 2900 DES MOINES 71 7 SEVENTEENTH STREET FAY ETTEVILLE KANSAS CITY DENVER, COLORADO 80202-3329 LINCOLN 303-297-2400 LITTLE ROCK NEWPORT BEACH FACSl M ILE 303-292-7799 OKLAHOMA CITY www.kutakrock.com OMAHA PASADEN A RICHMOND SCOTTSDALE CRAIG N. JOHNSON WASHINQTON [email protected] April 29,2002 Office of the General Counsel Federal Election Commission 999 E Street, N.W. 1cb Washington, DC 20463 2 8 35 -3 -m Re: MUR#5251 2‘ -2b-l- > l-. *_ f‘ 0 c- Friends of Joe Rogers Exploratory Committee c - -fin75 , ::ai- . Theodore W. Sell, Treasurer ,= q.1: 323 --- -’ma 1- 0 Dear Sir or Madam: e r- r Please find enclosed with this letter a copy of the Answer to the Complaint in the above-referenced matter. We appreciate the Commission’s courtesy in granting us an extension of time until April 30,2002 within which to file this Answer. If you have any questions or require any additional information, please do not hesitate to contact me. j lh cc: Honorable Joseph B. Rogers (w/encl.) Theodore W. Sell (w/encl.) 02-1 16360.01 f’ BEFORETHE FEDERAL ELECTION COMMISSION ... IN RE JOE ROGERS and 1 1 MUR 5251 FRIENDS OF JOE ROGERS EXPLORATORY COMMITTEE ) ) ANSmR OF RESPONDENT FRIENDS OF JOE ROGERS EXPLORATORY COMMITTEE a -2 ‘pl - ‘rn 3,- , $’og-.xJ r; 3k F: I- c~;~r-~ The Friends of Joe Rogers Exploratory Committee, Theodore W. Sell, Treamret:; 4 <----L>~#-J ~ ;,.;-i+r-- (“Committee”), through its counsel Craig N. Johnson, Esq., hereby submits the following E its 5 -0 Answer to the Complaint of Steven J. Durham (“Durham”) pursuant to 2 U.S.C. 6 437g(a)(l) and 1 1 CFR 0 111.6(a), and states as follows: I. INTRODUCTION Durham is a lobbyist and long-time political detractor of Colorado Lieutenant Governor Joe Rogers (“Rogers”). In his Complaint, Durham alleges (1) that Rogers failed to file a Statement of Organization in a timely manner, (2) that the Committee improperly used state taxpayer dollars to support his campaign, and (3) that Rogers “possibly” transferred corporate contributions from a youth conference to the Committee. Each of these allegations, however, is false, and is based solely on conjecture, speculation and innuendo. The sole support for Durham’s allegations are various editorials and reports from Colorado media, most of which are completely inaccurate. As described more fully herein, all of the fundraising activities conducted by Rogers prior to registering as a candidate were conducted under the “testing the waters” exemption to the Federal Election Campaign Act of 1971 , as amended (“Act”). Indeed, at the time these activities were conducted, the new district did not exist, and no one knew exactly where its boundaries 02-1 14542.01 1 . would be drawn. Since Rogers made the decision to become a candidate, Rogers and the Committee have made all of the required filings in a timely manner and have properly reported all contributions the Committee has received in fbll compliance with the Act. Thkse filings clearly show that no state or corporate fbnds have been improperly received in connection with the campaign. Thus, there is no reason to believe any violation of the Act has been committed. Disturbingly, it appears that Durham’s Complaint was motivated solely by the desire to cast aspersion on Rogers in an effort to gain political advantage for Rogers’ opponents. Although he has no connection to the new Seventh Congressional District (Durham is a resident of Colorado Springs, which is some 75 miles south of the new district), Durham is actively supporting another candidate for the district’s seat.’ Moreover, immediately after filing his Complaint (and before the Complaint was provided to Rogers or the Committee), Durham notified the Colorado news media and discussed the Complaint in a local news broadcast.* The Act was intended to ensure the integrity of the federal election process; it was not intended to be a tool to be manipulated by candidates or their supporters to gain an advantage over their political opponents. In light of these circumstances, the Complaint should be dismissed without further action. I Durham is actively working for an opponent of Rogers for Colorado’s new Seventh Congressional District. According to the Form 3 filed by the Bob Beauprez for Congress Committee on April 15, 2002, Durham has contributed $500 to the campaign of Bob Beauprez. The Committee believes that Durham’s disclosure of the Complaint to the Colorado media constitutes a .blata”nt violation of federal election regulations, which prohibit disclosure of pending complaints by “the Commission or by any person or entity without the written consent of the respondent.” 11 CFR 6 111.21(a). - -. Accordingly, pursuant to 1 1 CFR 0 11 1.24(b), the Commission should impose sanctions against Durham for his .’ ’ knowing and willful disclosure of the Complaint. 02-1 14542.01 2 I. 11. STATEMENT OF FACTS A. Colorado’s New Seventh Congressional District. This Complaint involves Rogers’ candidacy for Colorado’s new Seventh Congressional District, which was awarded to Colorado based on data gathered fiom the 2000 Census. Prior to the 2000 Census, Colorado had six seats in the U.S. House of Representatives. Although Coloradoans were aware that a new district was to be created, no one knew exactly where the new district would be located until late January 2002. Pursuant to 2 U.S.C. 6 2(c), the Colorado General Assembly was responsible for preparing a redistricting plan; however, the General Assembly failed to pass a redistricting plan during its 2001 term. As a result, several Colorado electors commenced an action in the District Court for the City and County of Denver, Colorado, requesting the implementation of a judicially-determined redistricting plan consistent with the requirements of the U.S. Constitution as applied in Growe v. Emison, 507 U.S. 25 (1993). The new district lines were not drawn until late January 2002, when the Denver District Court issued its ruling on the redistricting plan. B. Rogers’ Exploratory Fundraising Activities. Rogers is currently the sitting Lieutenant Governor of Colorado. After it was determined that Colorado would be entitled to a seventh seat in Congress, Rogers began to consider the viability of his becoming a candidate for the new Congressional district. At the time, however, neither Rogers nor anyone else knew where the new district would be located and, thus, he did not know whether he lived in the new district or would have to move, the level of support within the district, or whether he would be a viable candidate in that district when formed. In order to determine whether to run for Congress in the new district, Rogers engaged the. services of a consultant, arranged numerous speaking engagements and contacted past and 02-1 14542.01 3 . .. .. - prospective supporters-to-determine the level of support if he were to launch a campaign. In engaging in such activities, Rogers relied on the provisions of’the Commission’s Campaign Guide for Congressional Candidates and Committees, which specifically provides that an individual may engage in such “testing the waters” activities without registering as a “candidate” under the Act. See Federal Election Commission, Campaign . Guide for Congressional Candidates and Committees (April 1999), pp. 3-4 (hereinafter “Campaign Guide”). Such “testing the waters” activities, however, obviously required significant resources. Accordingly, Rogers solicited funds fiom a limited number of past and prospective supporters and friends. These supporters and fi-iends received return envelopes permitting them to indicate i that they would be willing to volunteer if Rogers became a candidate. In addition, these supporters were asked “to encourage Joe Rogers to become a candidate‘to represent Colorado in the United States Congress through my contribution of ...” See Exhibit A (emphasis added). The response envelope did not refer to Rogers as a candidate, or to any specific campaign. On November 19, 2001, Rogers sent another letter to a certain individuals who had supported Rogers’ 1998 campaign for Lieutenant Governor. As with the previous solicitation, the November 19 letter was intended to raise finds to help Rogers defray the costs of his “testing the waters” activities and to determine the level of support for a new campaign.’ Although Rogers made general reference to a “new campaign,” he did not declare himself a candidate, and stated only that “. .. I need your help.” See Exhibit B. At the time this correspondence to past supporters was sent, Rogers was actively deliberating whether to become a candidate for the new Congressional district. Indeed, Rogers was on the record on numerous occasions during this period stating that he was only considering becoming a candidate depending on where the new district was drawn. A December 14, 2001 . .. 02-1 14542.01 4 .I. .. s Denver Post article, ’for example, noted that Rogers was “weighing a possible candidacy for Colorado’s newest congressional district,” and that his decision would “hinge on where the district boundaries will be drawn.” See Exhibit C. Likewise, the Denver Post reported on January 4, 2002 that Rogers was taking “a closer look” at the new Seventh Congressional District seat. See Exhibit D. Rogers did not advertise or otherwise hold himself out as a candidate for Congress and, in light of the uncertainty about the location of the new district and the level of support that may exist therein, it would have been impossible for Rogers to become a candidate for a district that did not yet exist. (In fact, at least one candidate who had declared himself a candidate for the new district, Mike Cofhan, later withdrew his name from consideration after the new district boundaries were unveiled.) Based on the favorable response to his “testing the waters” activities Rogers decided to become a candidate, and registered as a candidate on January 22, 2002, designating the Committee as his principal campaign committee.

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