The Denver Post

As ballot toughens, what now?

Policy advocates unsure if they’ll turn to lobbying or statutory initiative­s

- By Brian Eason

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.”

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