Amendment 71 pinches our ability to govern ourselves

By Matt Soper

A lot of folks have told me they are voting for Amendment 71 because it will make the state Constitution harder to change. The reality is Amendment 71 will kill the constitutional initiative system in Colorado, as it creates draconian barriers to direct democracy preventing ordinary Coloradoans from exercising an important constitutional right.

Deciding big constitutional ideas by ballot is a Colorado tradition that goes back over a century. Often times Colorado voters are faced with deciding tough issues that legislators cannot or will not address themselves. Such issues have included: term limits, campaign finance, legalization of marijuana, and limitations on state expenditures (TABOR). Coloradoans have also used initiatives to ban the 1976 Winter Olympics, prohibit underground nuclear explosions, and ban state funded abortion, along with making Colorado a right-to-work state in 1958, legalizing the sale of alcohol in 1932, and creating the power to recall politicians.

Out of all these initiatives, very few are actually approved by the voters.

The direct initiative process was not part of the original state constitution in 1876, but became law in the early 1900s when a group of voters got frustrated by the state government being overly influenced by big industries, such as railroads and timber.

In 1912, the first year the right was available in Colorado, voters weighted in on 32 initiatives. Commencing with that first election, some pundits have complained about the process being too easy and a tool used by various voter groups. Lobbyists and special interests enjoy a cozy relationship with representative state government and democracy (via constitutional initiatives) challenges their chokehold on government.

A major shift occurred in 1988 when a unanimous U.S. Supreme Court held, in Meyer v. Grant, that under the political speech doctrine of the 1st Amendment, petition circulators could be paid. Prior to this holding, it was a felony in Colorado to pay signature gatherers. While the rate of initiatives making the ballot has increased, success at the ballot box has decreased since the Meyer decision.

There are two opposing theories of the constitution. One view is that the constitution is an expression of the founders and should rarely, if ever, be touched, leaving tremendous leverage for interpretation by the elected and appointed political actors. The other view treats the constitution as an expression of “We the People” and offers some flexibility and the ability for the people to govern themselves.

Regardless of the underlying theory, the foundational document of government ought to be fairly hard to amend. Is the state worse off because the people have too much power?

Colorado is unique, in that, citizens, through the initiative process may bypass the state legislature and place a statute (called proposition) or state constitution (called amendment) question directly on the ballot. Only 24 states (mostly in the West) allow for the initiative process and of these, only 16 allow citizens to directly amend their constitution.

Amendment 71, ironically, seeks to use the current initiative process to make future initiatives more difficult. The amendment calls for collecting a certain number of signatures from each state senate district (there are 35 in Colorado) just to place future amendments on the ballot. Once on the ballot, the amendment then requires a super majority of 55 percent for the initiative to pass. These restrictions are not in place if an initiative seeks to repeal part of the state constitution.

The complexity of Amendment 71 is a bit tough to swallow. Look at all the trouble a few Republican U.S. Senate candidates had earlier this year attempting to petition onto ballots in seven congressional districts. Imagine spreading that out across 35 senate districts!

If an issue is disliked in one or two districts, those districts would have an effective veto, thus depriving the people the ability to decide if the idea is germane or not.

Whether you love participating in democracy or not, one thing is for sure, Coloradans have, and should continue to enjoy, the ability of “We the People,” to freely exercise direct lawmaking power on proposals to change the state constitution.

If an initiative is bad, Coloradoans have proven they are more than capable of voting down amendments. In fact, only one out of five passed over the past five years.

Looking at some of the more recent constitutional initiatives, none would have passed with the supermajority (55 percent) vote tally as required by the proposed Amendment 71, except one. The Taxpayer Bill of Rights passed in 1992 with only 53.6 percent, but would have failed under the current proposal. Amendment 23 which mandated more funding for k-12 education passed in 2000 with 52.7 percent. It also would have failed. Ironically, Amendment 64, which legalized marijuana in 2012 with 55.3 percent of the vote, would still have become law.

Amendment 71 opens the door for opponents to nix the Taxpayer Bill of Rights (TABOR). The supermajority element does not apply if the initiative seeks to repeal a part of the state constitution. Thus, a progressive billionaire could fund a successful repeal with a vote tally of 50 percent plus one.

The ability of the citizens to directly participate in governing is an effective check on the power of the political class. For the average Coloradan, unduly restricting ballot access, as Amendment 71 does, means a critical democratic tool is only accessible to ultra-big-money interests who can afford the higher costs associated with the complicated signature gathering process.

These are the reasons why I am voting no on Amendment 71: Draconian restrictions on direct democracy, hard to meet signature requirements, and a double-standard for repeal vs. new provisions which would prevent ordinary citizens from an important right. For the good of Colorado vote no on Amendment 71.

Matt Soper, a CMU alumnus and Delta County resident, holds law degrees from University of Edinburgh and the University of New Hampshire. Contact him at .(JavaScript must be enabled to view this email address).


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