As ballot toughens, what now?
Policy advocates unsure if they’ll turn to lobbying or statutory initiatives
In Colorado politics, it is the silver bullet.
Anyone able to raise enough money and signatures can propose an amendment to the state constitution through a ballot initiative — sidestepping the legislative process.
But Amendment 71, approved by Colorado voters Nov. 8, made that harder to do — so much harder, critics say, that amending the constitution is no longer an option for all but the most well-funded organizations.
Policy advocates who relied on the amendment process say they are unsure how they will proceed. They could respond with a beefed-up lobbying presence at the Colorado General Assembly — although partisan gridlock was part of what made ballot initiatives attractive in the first place. Statutory ballot measures that fall short of amending the constitution are still on the table, but there are downsides to that approach too.
Statutory changes are easier to roll back, needing just a majority vote of the legislature.
“Why do you run initiatives? Because there’s legislative inaction,” said Elena Nuñez, executive director of Colorado Common Cause, a left-leaning government watchdog group that opposed Amendment 71.
Supporters say change was needed. The state constitution, they argue, is not a document that should be easily subject to the whims of voters. And, they argue, many Colorado ballot measures aren’t grassroots, citizen-led initiatives at all:
They’re often funded in part by national groups.
“This is a long-term play — in 30 years, hopefully people will say ‘Thank goodness,’ ” said Kelly Brough, president and CEO of the Denver Metro Chamber of Commerce.
But while initiative-weary voters clearly wanted to make it harder to add things to the constitution, there’s another consequence that many may not have intended.
All the amendments that have been made during the past 140 years to make Colorado’s constitution one of the longest in the country — from legal marijuana to the Taxpayer’s Bill of Rights to the new minimum wage — just became that much harder to change.
“Not, it’s almost impossible”
Amendment 71, dubbed “Raise the Bar” by supporters, lifts the threshold for passage of constitutional amendments to 55 percent from a simple majority. And to get on the ballot, measures will now need signatures from 2 percent of registered voters in all 35 state Senate districts.
That last provision, conservative and liberal advocacy groups say, will make the ballot nearly inaccessible.
“One of the myths of the campaign is that it’s so easy to amend the state constitution,” said Pete Maysmith, executive director of Conservation Colorado, an environmental group that opposed the amendment. “Even before Amendment 71, it was an enormous amount of work that requires significant financial backing. Now, it’s all but impossible for grassroots (initiatives).”
Consider what happened this year:
Signature-collecting efforts for the seven petitioninitiated ballot measures, done primarily in population centers such as the Denver area, cost from $283,250 (Amendment 69, creating a state single-payer health care system) to $923,373 (Amendment 70, raising the minimum wage), according to Ballotpedia, a nonprofit that tracks ballot measures. “Raise the Bar” itself cost $383,518 — and that doesn’t even include the money spent on advertising.
Those costs go up if signature collectors have to fan out all over the state. So, too, do the legal costs of defending those efforts in 35 districts.
“When I put something on the ballot, I have to budget $100,000 for legal costs when opponents try to stymie it” through court challenges, said Jon Caldara, president of the conservative Independence Institute. “Now you’re going to need that times potentially 35.”
“Constitution has been fossilized”
Backed heavily by the oil and gas industry, “Raise the Bar” arose largely in response to an unsuccessful campaign to ban fracking.
Coupled with the fact that ballot initiatives across the country lean heavily toward liberal causes, and the conventional wisdom is that the changes benefit conservatives — at least in the short term.
But political observers say that while it appears to benefit conservatives now, it may be too early to say what the impact will be. Past changes to voting and campaign finance laws, for instance, were predicted to benefit one side or another, but both parties adapted.
“The immediate predictions for which party will have the advantage are often somewhat wrong or overstated,” said Seth Masket, a political science professor at the University of Denver.
Caldara, for one, thinks conservatives were shortsighted in their support of the measure.
“The constitution has been fossilized,” Caldara said. “And that means the courts now have the nearsole purview of what the constitution means.”
To Caldara, that benefits the left; for one thing, he believes the courts have weakened the Taxpayer’s Bill of Rights, among other conservative policies. But the real winner, he says, is the political establishment.
There’s precedent for lawmakers seeking to undo voter-backed initiatives.
When Colorado voters approved the GAVEL amendment, requiring that all bills receive a hearing, “legislative leaders went to court to try and block that amendment from being implemented,” said Nuñez of Colorado Common Cause.
When voters backed statutory changes to campaign finance reform, lawmakers “at the first opportunity … went in and dramatically undercut what voters had approved,” she said.
Supporters — including all five living governors, and a wide array of business groups, lawmakers and local government leaders — counter that the changes concentrate power in the right hands: the lawmakers whose job it is to make public policy.
“Colorado has become a virtual petri dish for political experiments,” wrote the leaders of the rural business groups Club 20, Action 22 and Progressive 15, in a joint endorsement letter. “As one of the easiest state constitutions to amend in the United States, the Colorado Constitution now contains over 150 amendments and 75,000 words, many of which produce conflicting and unsustainable policies.”
Is Colorado still a national laboratory?
In a year in which the ballot stretched for multiple pages, Amendment 71 may have had a special appeal to initiative-weary voters.
And some observers expect that it will lighten the load in the future.
“Historically, we’ve had some of the longest ballots in the country, and this will likely shorten them a bit,” Masket said. Others aren’t so sure. “I would anticipate Coloradans are going to continue to love to vote on ballot issues,” said Brough, with the Denver Metro Chamber, which supported the measure. “I think there’s tons of examples of amendments that we’ve put into our constitution that would be just fine to put into statute — and I think, frankly, more appropriate.”
Many of the initiative’s opponents don’t even disagree with that goal.
“I think the intent was to try to limit us being the experimental ground for outof-state groups. I think that’s actually probably good,” said Karen Middleton, the executive director of NARAL Pro-Choice Colorado, which opposed the amendment. But, she added, it makes it too hard to fix things that she believes are already wrong with the constitution.
How will policy advocates adjust? Several said it was too early to say. Some may refocus their efforts on lobbying lawmakers themselves — but that’s been an uphill battle recently, with a split legislature. Others predict a shift toward more statutory ballot measures.
“They probably head toward statutory changes now more, other things being equal,” said Paul Teske, dean of the School of Public Affairs at the University of Colorado Denver. “But, those things aren’t going to be as baked in, because the legislature can go and change them.”
On the other hand, most of the things — good and bad — that made it into the constitution under the old rules are likely here to stay.
“It probably does bake it in and solidify the past in a way that isn’t the happiest thing when you’ve got a state constitution that’s the third-largest in the country,” Teske said. “We have kind of a ridiculous number of things in the constitution that shouldn’t be there.”