Amendment 71 and Colorado’s Constitutional Mess

Colorado thought leaders that I deeply respect are at loggerheads over Amendment 71, the ballot measure to make it harder to amend the state constitution by voter-driven initiative.

On one side, Jon Caldara of the Independence Institute is leading a coalition against the measure. On the other side, people such as former state senator Mark Hillman, a rock-solid conservative, support the measure.

What’s going on here? How can people with similar political views reach the opposite conclusions about this ballot measure?

Part of the answer is that it’s hard to predict precisely what the impacts will be if Amendment 71 passes. Undoubtedly it would block some petition efforts proposing anti-liberty constitutional changes. But it also could block some pro-liberty reforms and even encourage some anti-liberty ones.

Another part of the answer is that conservatives and (classical) liberals, although broadly republican in orientation, disagree about what role voters should play—if any—in directly influencing legal changes. Some people, such as Paul Jacob and Caldara, think it’s very important that voters have a way to bypass the legislature. Others worry about direct democracy and want to tightly restrict it.

I am “softly” against Amendment 71, meaning that I think a reasonable, liberty-oriented person (as Hillman is) can make a plausible case for supporting it. By contrast, I am firmly against such proposals as government-payer health care (Amendment 69) and the minimum wage hike (Amendment 70). Whereas 69 and 70 clearly run contrary to liberty, it’s not obvious whether 71 would on net favor or diminish liberty.

It’s hard to argue from a liberty standpoint that the voter-driven amendment process is working well at this point. As John Elway points out in a television commercial funded by Amendment 71’s supporters, the language of such measures as 69 and 70, whatever else we might say about it, simply doesn’t belong in the constitution.

Yet Amendment 71 has some subtle but important problems in its language that I think many voters don’t fully appreciate.

Amendment 71 would require backers of a voter-driven constitutional amendment to distribute petitions in all areas of the state, and it would require a supermajority (55 percent) to pass such an amendment.

So what are the problems?

Although the stated aim of Amendment 71 is to require support throughout the state in the petition process, the practical result would be to increase the cost of running constitutional measures and to more completely lock out all but the wealthiest players.

Amendment 71 requires that, to make the ballot, a petition for a constitutional change must be signed by “at least two percent of the total registered electors” in each of the state’s thirty-five senate districts. This is in addition to the current requirement that, statewide, “at least five percent of the total number of votes cast for all candidates for the office of secretary of state at the previous general election shall be required to propose any measure by petition.”

Two percent may not sound like much, but notice that this is based on the number of registered voters, a much larger number than active voters. Many registered voters don’t vote or otherwise actively engage in politics, and the official registration rolls contain some people who have died or moved away.

Moreover, in the more rural parts of the state, people are more spread out than they are in the metro areas and therefore harder to approach with a petition. And the rules say that people must sign a paper petition in person.

Why did the authors of Amendment 71 set the new requirement as a percent of registered voters rather than as a percent of past voters for Secretary of State, as current requirements lay out? The answer, I think, is that Amendment 71’s backers cynically wanted to obscure the true cost of gaining signatures and to impose a troublesome duel standard.

As a side note, the number of registered voters per district is much more open to legal challenge than is the number of past voters for Secretary of State. As Caldara’s group points out, Amendment 71 is a make-work program for election attorneys.

As a practical matter, the regional requirement would serve only to increase costs to get a measure on the ballot; it would not actually indicate much greater regional support. In the wistful imaginings of some, voters carefully read and reflect upon proposed ballot language before signing a petition. In the real world, I could get two percent of registered voters to sign on to trade regulations for Martians, if I spent enough time standing out in the sun wearing my pitchman’s hat. True, for some issues (such as guns) regional differences would matter somewhat, but usually the only relevant barrier would be financial resources.

The idea behind petitioning seems to be that only true grassroots efforts will be able to get enough support to place a measure on the ballot. The reality is that gathering signatures has become an industry, with backers of most measures paying people to collect names. For the most part, signature gatherers are in it for the money, not because they care anything about the causes at hand. And, for the most part, people who sign petitions spend little if any time reading and analyzing the proposed legal language.

The upshot is that the regional requirement of Amendment 71 would not actually improve regional support or empower grassroots movements; instead, it would serve to put constitutional amendments more squarely into the hands of the ultra-wealthy. Granted, the ultra-wealthy would also have a harder time getting constitutional changes passed, but I take a dim view of a system that so strongly favors the ultra-wealthy.

What about Amendment 71’s requirement that 55 percent of voters approve a voter-driven constitutional amendment?

There are two oddities about this. First, Amendment 71’s backers did not see fit to hold themselves accountable to the standard they wish to implement; the measure could pass with 50 percent of the vote. (Apparently the backers didn’t meet the regional signature requirement, either.) This flagrant double standard again reveals the cynical attitude of Amendment 71’s backers.

The second oddity is that only some voter-driven constitutional amendments would require the 55 percent majority; those “limited to repealing, in whole or in part, any provision of this constitution” would still require only 50 percent. So, for example, voters could repeal the Taxpayer’s Bill of Rights (TABOR) one election with 50 percent of the vote, then regret the move and be unable to repass TABOR with 54 percent of the vote. Under Amendment 71, it would also be easier to repeal TABOR outright than to pass a minor reform of it.

I understand the idea here: Other things equal, a shorter, cleaner constitution is better. But other things would never be equal in this regard, and Amendment 71 would invite quirky political moves that exploit the double standard.

Unfortunately, at least in the short term, we will be stuck either with the imperfect status quo or with the imperfect language of Amendment 71. For what it’s worth, a University of Denver poll indicates that Amendment 71 is likely to pass, with 53 percent—an ironic number—expressing support.

Whether or not Amendment 71 passes, I’d like to see a different set of reforms discussed at some future time.

A petition process that makes it practically impossible for all but wealthy interests to participate is a bad system. Perhaps one way out is to dump paper petitions signed in person in favor of a mail-in or online system to weigh support.

Generally I do think it should be harder to change the constitution than to change the statutes. The only reason that things like the minimum wage law are in the constitution, where they clearly do not belong, is that their supporters can change the constitution as easily as they can change the statutes. And a constitutional change cannot be altered by the legislature.

One possibility, following an aspect of the federal model, is that a constitutional change could require passage by an overall majority as well as by a majority of voters in at least three-fourths of the counties. Such a reform would ensure that a measure had broad support throughout most of the state.

Unfortunately, the battle over Amendment 71 illustrates one of the major problems with politics: The options among which we must choose hardly ever include the best possible options.

It’s easy to get bogged down in in the often-noxious weeds of politics. But, whatever rules we end up with, advocates of liberty can continue to fight for their cause and work toward rights-respecting governance.

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Don’t Hamstring Citizen Action

The motivation behind Amendment 71 is to hamstring the citizen initiative process, and if you trust elected politicians to pass wise laws more than you trust the people who elect the politicians, your logic baffles me.

Legislators and their supporters don’t want citizens to be able to write and enact constitutional measures, as they now can – because that bypasses the legislators. They chafe at their inability to repeal citizen initiated constitutional measures. That’s really all this is about.

The idea that Colorado’s constitution should be preserved in its present form, and made harder to amend, is ridiculous. It is already riddled with trivial and inconsistent and offensive provisions. Enacting Amendment 71 would help preserve the nonsense that we now have.
I oppose Amendment 71 because citizen initiatives threaten the legislators’ monopoly power.

—Paul Grant

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