Colorado mulls over direct citizen amendment laws with national implications
Despite the Legislature’s failure to pass a bill this year to increase the percentage of votes needed to pass a voter initiated constitutional amendment, grassroots advocates recently voiced their opposition to the move they see as part of a trend by legislators to limit the power of the people.
Those advocates say that making it more difficult for the people to circumvent the Legislature by changing the constitution by direct vote only gives Capitol lobbyists more power to make laws and reduces the influence of the average citizen. Legislators and policy makers in favor of the bill said special interests have already taken over much of the ballot initiative system and making it more difficult to change the constitution will help the state as lawmakers try to work through the layers of incongruous amendments already put in place that they say are challenging Colorado’s long-term fiscal integrity.
Colorado’s ballot initiative system currently allows voters to collect signatures to place either a statutory measure or constitutional amendment on an election ballot, which then takes a simple majority of voters to pass.
“There is widespread agreement from scholars, politically active people and even the broad citizenry that it is not necessarily good policy to allow easy amendments to the Colorado Constitution. I think you find wide support to not amend the Colorado Constitution because that becomes a straitjacket that is hard to change,” Professor Anthony Robinson, who teaches political science at the University of Denver, said. Robinson said people should use the statutory form of the initiative process, which he feels is a needed check on representative government created through the threat of citizen action.
However, others say that legislators are simply trying to take power away from the people.
“The legislature, or people in power, tend to think that they are smarter than the people, and they resent people putting stuff on the ballot to get something done the way they didn’t want it to be done,” Joe Trippi, former campaign manager for Howard Dean’s presidential race, California Proposition 2 organizer, and political analyst, told the Colorado Independent. “That is the great thing about America–we are the people who should be deciding things.”
Trippi, who was in town to speak at a panel discussion in favor of protecting the initiative process hosted by Citizens in Charge Foundation, Colorado Common Cause, and the Independence Institute, said that he has been an advocate of grassroots participation throughout his career. He said he is concerned by any attempt by legislators to limit or direct citizen involvement.
The panel was hosted largely in response to SCR 1, also known as the “Son of Ref. O,” a legislative referendum to amend the initiative system this last legislative session and make it harder to change the Colorado Constitution.
SCR 1, the bipartisan referendum, was crafted in response to the University of Denver Economic Future Panel final report and a series of planning meetings conducted by Colorado’s Future, which hosted over a thousand civic leaders from all walks of life and political affiliations to determine the proper steps to create a more stable backdrop for Colorado’s growth.
The referendum, as adopted by the Senate, would have asked voters to decide whether to raise the number of votes needed to pass a constitutional amendment from a simple majority to a 60 percent threshold. In addition, it would have made it more difficult for legislators to change statutory measures passed by a citizen initiative and would have required initiative signatures to be garnered from each of the congressional districts before reaching the ballot.
Under a 60 percent threshold for voter initiated constitutional change, only four of the 19 amendments to the constitution since 1990 would have passed. Those four are: Standards of Conduct in Government, Tobacco Tax Increase for Health Purposes, Campaign Finance Reform and Term Limits.
The bill ultimately died on the House calendar at the request of the sponsor who told the Colorado Independent she did not have the votes to pass the referendum.
‘If it was only an issue of policy,” House sponsor Lois Court, D-Denver, said, “we would have passed the bill.”
However, Court said that while legislators may be policy makers, they are also creatures of politics and it was politics that killed the bill.
One political observer said those politics include an initiative dressed in the same language as SCR 1, with one exception. The initiative has a provision that, if passed, would amend the constitution to ensure that all tax increases must pass by a 60 percent majority. Concerned that they would be unable to craft a message that both promoted SCR 1 and disparaged the tax-limiting measure, groups that saw a need for future tax increases called for SCR 1 to be benched.
While there remains clear interest by those stakeholders involved in SCR 1 to revive the referendum, many fear that their attempts will continue to be thwarted by what they see as Trojan horse initiatives, leaving in question a clear way forward.
Despite Trippi and other organizers concerns, advocates for the legislation say the changes are small but needed.
“It is a fine tuning [of the initiative process] to protect the constitution from frivolous initiatives so that if the people do have a really strong beef with their government they still have the opportunity to go to the ballot,” Republican Rep. Carole Murray, R-Castle Rock, said in defense of SCR 1.
Brenda Morrison, executive director of Colorado’s Future, said civic leaders agree with Murray. She said it was clear that the ballot initiative should remain and that the threshold should be increased to create better stability for Colorado citizens.
Pointing to the cost, she said that the $177 million that has gone into initiative campaigns since 2000 could have been used to help stimulate the economy.
“$177 million is a lot of money that could have gone to creating jobs,” Morrison, said.
Janice Sinden, executive director for the business advocacy organization Colorado Concern, agreed with Morrison and said business was looking for a more equitable and stable environment.
“We are not trying to take away people’s right to initiate. We are trying to set a higher threshold for changing the constitution. So go crazy statutorily, though we certainly want it to be thoughtful, but let’s stop putting things in the constitution, because we are building layer upon layer of conflicting measures. And now we have a structural deficit that we can not address [without changing the constitution],” Sinden said.
Initiatives: A tool for out-of-state activists and special interests**
While activists argue that the ballot initiative system allows voters to circumvent a Legislature controlled by lobbyist interests, in 2009, The Colorado Independent reported that the National Conference of State Legislatures found that initiatives have increasingly become the handiwork of special interest groups outside of the state.
“Advocates of the initiative process will argue that the role of special interests is exaggerated. But that’s not what we found [on the NCSL task force]. On the left and the right, if you follow the money, you will see that a lot of the ideas originate outside the state,” Jennie Drage Bowser, an elections expert with the National Conference of State Legislatures, said at the time.
Today, with one of the nation’s lowest thresholds for ballot initiative signatures in the country, those conditions do not appear to be changing in Colorado.
“Often initiatives are something that represent legitimate organic felt need or movement in the community of Colorado.” Robinson said. “Undeniably it is also used by people who want to come to the state and use the initiative process. So, it is both. It is an open tool that can be used by anybody who chooses to pick it up.”
Justine Sarver, executive director of the progressive Ballot Initiative Strategy Center, which tracks trends in initiative integrity and helps progressive causes develop more effective strategies for initiative defense and support, said that she was aware of a number of out-of-state interests that had targeted Colorado for testing ballot initiatives.
“The big picture on citizen initiatives is that they have become the tool of special interests but especially corporations or organizations that are seeking to make government smaller,” Sarver said. “Looking at Colorado as one of the biggest ballot initiative states, certainly there are national trends that are picked up and carried from state to state.”
Sarver pointed to initiative attempts such as one which would have made state-sanctioned affirmative action illegal and the personhood initiative as examples of campaigns fueled by out-of-state interests. She went on to say her own group was currently in discussions about how they could nationalize many progressive issues campaigns in much the same way as their opponents.
Colorado Political analyst Eric Sondermann, who worked as a consultant on Ref. O in 2008, agreed that special interests increasingly were playing a large part in the initiative system. But he said Colorado grown grassroots initiatives continued to thrive in the state despite the presence of outside interests.
Trippi, like Sarver, argued that a good idea is a good idea, no matter where it comes from.
“The fact still is that the people get to vote on that initiative … If they do agree with it, why does it matter how it got qualified?” Trippi asked.
Special interests and disclosure
Voter advocacy groups say how special interests might use the system matters a lot. They contend that voters are rarely able to do the deep research needed to make complicated and long-term policy decisions state legislators can make. Instead, they are forced to fall back on slogans from campaigns, headlines, or ballot titles that may provide a visceral social appeal but often hide the true nature of an initiative where even its funders remain hidden in a maze of campaign finance laws.
“One thing that we have learned is that when something is put into the constitution by way of ballot initiative that you get either more or less than you voted for,” Murray said.
Jenny Flanagan, executive director for Colorado Common Cause, who joined Trippi and others in their opposition to SCR 1, said voters should first and foremost be informed of which individuals and special interest groups are supporting a campaign. However, she said that protection is currently in flux.
Colorado currently requires disclosure of those contributing to an issues (initiative) campaign. Yet, those laws have recently been weakened after Secretary of State Scott Gessler said he was complying with a court ruling that found a small neighborhood association’s rights were suppressed by burdensome reporting requirements. Gessler changed the reporting requirement from a $200 threshold to a $5,000 threshold. While Colorado Common Cause has filed a complaint, Flanagan says the change removes yet another layer of citizen protections.
“We are not only limiting disclosure by raising these limits and the timeliness of disclosure, but we are hiding money from voters,” Flanagan said. “A key part of making a decision is understanding who is funding a message and is trying to influence your vote.”
Beyond campaign contribution thresholds, however, is a tortuous maze of 401c 4 and 527 groups that through incestuous contributions are able to mask donors.
Sinden, who said her own organization has not taken a position on disclosure, said donation masking makes it difficult to determine if out-of-state interests are funding a campaign. However, she said, if those donating to campaigns could not mask their identity many would choose to opt out of voicing their opinion through their wallets due to the fear of retaliation from either their employers or friends.
University of Colorado associate professor Michele Moses, who recently published a study looking at information distribution to voters concerning the 2008 anti-affirmative action initiative campaign, said knowing who is behind information does matter. She said that of those who voted to support Amendment 42 and eliminate affirmative action in Colorado, over 66 percent of voters actually meant to support affirmative action. Moses pointed to a number of causes for the confusion including the ballot amendment title and petitioner explanations.
Sondermann agreed that voters are often confused by exactly what is in the body of an initiative. He explained while it is hard to get them to vote to amend the constitution, those same voters more often than not are influenced by headlines that create a visceral appeal. In doing so, he said that many special interest groups have been able to pass initiatives without the public being fully aware of what they were voting on. He said the AmeriStar Casino-funded Amendment 50, which purported to increase funding for community colleges while actually increasing the bet limit at casinos, was just such an initiative.
Ameristar is now reaping the benefits of that initiative after seeing its taxes decreased and the funding to schools slashed.
“I don’t know that initiatives are a way to deal with complex public policy,” Sondermann said.
Trippi and Robinson disagreed with the notion that voters are ill informed.
“When you offer an initiative, people tend to pay attention to that issue, talk about it, it elevates the discourse of the citizenry in a broad way because they are forced to deal with it,” Robinson said. “I understand they don’t become deep experts, but there isn’t any evidence that the legislature’s deep expertise leads to better laws.”
Trippi had a similar analysis.
“Are you going to have bad laws? Of course you are going to have bad laws, but if it is a mistake at least it is a mistake that the people make. They engaged, they got involved, they had their day and it won or lost.”
Murray was of a different opinion. She said that while legislators can fix their mistakes through the legislative process, mistakes passed through a constitutional amendment are almost impossible to remove unless they find their way into a courtroom. She, like others, said her intentions with SCR 1 were to encourage voters to pass laws through the ballot initiative system, so that if they were later found to be unconstitutional or detrimental to Colorado they could be fixed before becoming law.