The often-overlooked third part of the First Amendment – your right to lobby your government officials – has won two significant victories in Colorado in recent weeks.
The first win came May 10 when a legislative ethics panel voted 2-1 that lobbyist William Mutch didn’t violate any legislative rules when he organized hyberbolic robo-calls attacking a bill making it easier for homeowners to sue homebuilders for construction defects.
The second and more important victory came Thursday when Denver District Judge Christina Habas issued a temporary injunction stopping enforcement of Amendment 41 – a sweeping but vague ethics law that literally forbade lobbyists from buying public officials anything of value. The language is so absolute that it even ended the little coffee and sweet-roll breakfasts that civic groups used to organize on the second floor of the Capitol.
I’ve sipped many cups of coffee while listening to wheat farmers, mental health volunteers and other honest citizens who used this inexpensive and effective venue to communicate with legislators and the press.
Even people who think it should be a crime to offer a legislator a danish in return for 15 minutes of her time winced at the prospect that Amendment 41’s language might even define a janitor who works for the state as a “public employee” – and prevent his child from accepting a college scholarship.
So here’s to Judge Habas: May her tribe increase and her decision be upheld on appeal.
The First Amendment is so short, it’s really unforgivable that the authors of Amendment 41 forget that it guarantees your right to lobby. It says, in full: “Congress [and by extension the states] shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
That last part is what lobbyists, paid or unpaid, do. I’ve known hundreds of them in my 35 years covering the statehouse for The Denver Post and, by and large, they’re an honorable lot. To be effective, they have to be.
The little world under the gold dome works on trust. Things happen in a hurry. When an ink-stained wretch like myself chats briefly with a harried legislator, we’re far less interested in opinions than facts. We can and do make mistakes, but a journalist, staffer, politician or lobbyist who deliberately misleads another player at the Capitol will quickly be excluded from the small circle in which facts and opinions are forged into policies and laws.
If a lobbyist steps over the line, as Mutch did with his misleading but not illegal robo-calls, there’s no need for the government to punish him. The punishment for an erring lobbyist is that legislators will kill the bills he supports and pass the ones he opposes. At that point, the lobbyist will learn that the right to free speech is absolute – but the right to paid speech depends on your ability to produce for your employers. If you’re out of the loop, you’ll soon be out of a job.
That’s why I was cheered when two ethics panel members, Rep. Claire Levy, D-Boulder, and Sen. Steve Johnson, R-Larimer County, said they found the calls deceitful but recognized them as falling within Mutch’s First Amendment right to communicate with the public.
Levy drew a distinction between rules that lobbyists should follow when they are talking directly to legislators – “when we absolutely ought to be able to rely on the accuracy and truth of what they are saying” – and the right of those same lobbyists, like any other citizen, to take “poetic license” with the facts in a political campaign.
So Levy, an exceptionally thoughtful lawmaker, joins Judge Habas in not only reading the First Amendment but actually understanding it. Let’s hope they start a trend.
Bob Ewegen (bewegen@denverpost.com) is deputy editorial page editor of The Denver Post.
