Is it time to put Colorado’s initiative process out of our misery?
The Initiative and Referendum, touchstones of the Progressive movement’s desire to make government more “open” to citizen action, were adopted by Colorado in the reform fever that swept the West and Midwest in the early twentieth century. After decades of heavy use, we know the results of allowing single-interest issue groups easy access to our state Constitution: conflict among provisions of the law, chaos for those who have to sort these conflicts out, interminable litigation, uncertainty and a basic law that outweighs many metropolitan telephone directories.
Examples of legislative malpractice originating in the process abound. Although most talk these days involves cannabis, legalized in Colorado but still prohibited by federal law, there’s also the conflict between amendment 23 and TABOR; between Amendment 65 and the Supreme Court’s decision in “Citizens United;” and Amendment 43, declared unconstitutional in the 1996 “Romer v. Evans” case.
The last illustrates part of the problem. Passed in 1992 by a 56 percent majority, Amendment 43 prohibited recognition of homosexual marriage in Colorado. Its supporters assembled a majority around a single issue which deprived a small minority of rights enjoyed by others, in this case, the right to enter into a contract.
This tendency to majoritarianism is one of the defining characteristics of the Initiative and Referendum process; time and again, majorities have been mustered by initiative supporters to limit or control the activities of the few. Initiative 8 of 1974, which prohibited “bussing to achieve racial balance in schools” was one of these, as were later efforts to establish regulations for hog farms and to limit contributions to political candidates.
Then there were initiatives pressed by well-heeled minorities, in the name of making all of us and the world we live in “better.” Examples include initiatives in 1914 to enforce prohibition by seizing private property and in 1932 to impose licensing “fees” on chain stores, on the theory that local “mom and pop” establishments would create more employment. It didn’t work, but it did raise the cost of doing business for Sears, Penney’s and others — with predictable results.
Which is another part of the problem. Passion in politics is admirable, but it often creates unforeseen consequences because passionate people aren’t inclined to stop and think through the implications of proposals near and dear to them. Consider the perennial “Personhood Amendment,” which has implications for the criminal justice system so large they can be seen from space.
Or Amendment 54, dubbed the “Colorado Clean Government Amendment” which purported to “improve” government by limiting the dollar value of gifts “government officials” could receive. This initiative was so badly written that — as its opponents pointed out — the janitor in the capitol building could be prevented from receiving a scholarship. No matter. It was passed by a 51 percent majority — and then ruled unconstitutional by the Colorado Supreme Court. In a February 2010 opinion on its 4-1 ruling, the high court said, ”[W]e find the Amendment’s deficiencies so pervasive that we must nullify the Amendment in its entirety.” Now, that’s harsh.
In 2014, we face another onslaught of initiatives to make our lives “better” by placing crushing regulatory burdens on businesses especially, but not limited to, the oil and gas sector; finding a “constitutional right” to health care; banning firearms and placing magazine bans beyond the reach of future legislatures; requiring premarital education; and much more. Hopefully, none of these examples of “the peculiar madness of crowds” will be approved, but — one never knows.
What are we to do about this flood of ill-considered but passionately pursued potential legislation? In 2008, the Legislature passed, and referred to the people a proposal to change signature requirements for this process in a way that encouraged initiatives to change state laws, but discouraged constitutional amendments. It also contained provisions which allowed the legislature to alter any law passed by initiative, provided a two-thirds majority of both houses votes to do so. These are both commonsense proposals which allow citizen participation in the legislative process on topics of wide interest, while limiting the ability of a small group with deep pockets to make constitutional changes — say, about tanning beds. Unfortunately, the referendum failed in 2008, primarily due to a knee-jerk reaction to the fear-storm stirred up by a few groups regularly using the present system primarily as a fundraising tool.
But it may be time to try again, before our state constitution can only be moved with a forklift, opened with a block and tackle and understood by monkish scholars who have devoted their lives to a study of it.
In five years or so, maybe.
Morgan Liddick lives in Summit County.