Colorado may have the most easily amended state constitution in the nation. Easy ballot-access rules have mangled the document into a catch basin of spurious provisions and conflicting mandates.
We are one of only 18 states that allows initiated constitutional amendments at all. Colorado first adopted its initiative in 1912, at a time when the progressive movement urged citizens to bypass state legislatures that were then often dominated by special interests. Since that time, Colorado voters have approved 70 citizen-initiated laws or constitutional amendments.
But the face of direct democracy changed dramatically after a 1988 U.S. Supreme Court decision threw out a Colorado law that required petition signatures to be gathered by citizen volunteers. Since then, the same special interests the initiative originally was designed to thwart have found it easy to buy their way onto the ballot by hiring election management firms to gather signatures. The result has been a flood of initiatives – seven on the 2006 ballot alone, which also had seven referendum items. The easy access prompts most proponents to put their pet schemes into the constitution, where they can’t be touched by the legislature – even when they have unrelated or unintended consequences.
The latest amendment to locking poorly written nostrums into constitutional concrete has prompted state leaders to consider reforms in the initiative process. Amendment 41, intended to ban gifts of influence to government officials and employes, has raised concerns about interfering with college scholarships and a host of other unintended consequences.
We’re confident the Colorado Supreme Court will approve legislation clarifying Amendment 41’s language as long as legislators honor the intentions of its authors. But we’re also glad that the outcry over 41 has roused reformers to propose changes that would improve the constitutional process. Their remedies would encourage voters to put their initiatives into law – while also making it harder for the legislature to change citizen-initiated laws.
The effort is welcome. There are currently two bipartisan plans circulating in the legislature. One by House Speaker Andrew Romanoff, D-Denver, and Sen. Josh Penry, R-Grand Junction, seeks to make it easier to put initiated laws on the ballot while raising the bar for constitutional changes. Currently, proponents of either initiated laws or constitutional amendments must collect valid signatures from 5 percent of the number of voters in the last race for secretary of state. The Romanoff/Penry plan would lower that requirement to 4 percent for initiated laws and raise it to 8 percent for constitutional amendments. The sponsors hope to thus encourage citizens to put their proposals into laws that could be more easily cleaned up if they turn out sour or have unforeseen consequences.
An alternative proposal by Rep. Al White, R-Winter Park, and Sen. Peter Groff, D-Denver, would keep the current 5 percent signature requirement for both initiated laws and constitutional amendments. But it would require constitutional amendments adopted after 2008 to pass with a supermajority of 60 percent of the vote. Initiated laws could still pass by a simple majority.
Both the proposals would protect voter-approved laws against legislative tinkering by requiring a two-thirds vote of the General Assembly to amend them within five years after passage. Likewise, to avoid locking the existing contradictory mandates in the constitution, both plans carry provisions that allow measures added to the constitution prior to 2008 to be repealed by the same standards under which they were passed: placed on the ballot by 5 percent signatures in Romanoff’s case or passing by a simple majority vote in White’s version.
Both plans have merit. We lean to the White/Groff proposal because merely raising the signature requirement probably wouldn’t deter special interests from buying their way onto the ballot by hiring professional signature-gathering firms.
But for any reform to succeed, it’s vital that the advocates pool their efforts. Constitutional reform will need two-thirds of the legislature to pass in order to reach voters in 2008.That leaves plenty of time to meet with business, labor and citizen groups concerned about our constitutional quagmire and hammer out a consensus.
Unintended results
The most notorious example of conflicting provisions in the Colorado Constitution involves three amendments passed over 18 years. The 1982 Gallagher Amendment was designed to hold down residential property taxes by shifting more of that burden to business. When the Taxpayer’s Bill of Rights was passed 10 years later, it interacted with the Gallagher formulas to shift most of the burden of local school financing to the state, even as TABOR was capping the state budget. Finally, Amendment 23, passed in 2000, mandated continuous increases in state aid to public schools, even when TABOR was forcing tax cuts. After the 2001-03 recession hit, another voter action, Referendum C in 2005, was required to ease the fiscal crisis triggered by the conflicting mandates.
