Opinion Editorial

By Dennis Polhill
Does the Initiative process enhance or diminish representative government?

In Colorado, citizens have the power to bring their idea before voters by using a petition. If a number of citizens agree by signing the petition, the idea goes to the ballot. Legislators dislike the Initiative process because they see it as infringing on their monopoly authority to legislate.

Opponents of citizen participation masterfully exaggerate difficulties with the Initiative process in order to compound false perceptions about the extent of the problems. Some problems are even caused by or augmented by their actions or inactions.

They claim petitions have caused “clutter” in the Colorado Constitution. But only 42 Initiated Amendments have been approved in the 94 year history of the process. Over the same period legislators have amended the Constitution 69 times (62 percent).

Next they claim “many” statutory measures end up in the Colorado Constitution. Some measures must be constitutional. Therefore, “many” being a portion of 42, probably means about a dozen. Distributed over 94 years, a dozen is “not very many.”

Because initiated statutes are approved by voters 41 percent of the time (versus 33 percent for initiated constitutional amendments), ample incentive exists for issue advocates to go statutory. The counterbalancing disincentive is the risk of legislative tampering. That is, when there is a risk that legislators will tamper, initiative proponents are forced to go constitutional as a protection. Many of these “few” issues would have gone the statutory route, if a reasonable protection against tampering existed.

Like a magician, they distract Coloradans from the truth by comparing the Colorado with the U.S. Constitution. This is a rouse; the two documents are not comparable. The Federal government does not manage elections, local governments (which Colorado has 2710 of 61 different types), private corporations, and much more. State constitutions typically restate the Bill or Rights and sometimes enlarge the list. Colorado’s Bill of Rights has 30 Articles. Colorado is comfortably in the midrange of state constitutions. The longest by word-count is Alabama (6 times Colorado’s) and the shortest is Vermont (1/6th of Colorado’s). Colorado is also near the center in number of amendments.

Colorado ballot titles are the longest and most difficult to read of any state. In addition titles on referred measures are much shorter than initiated measures. Legislators could easily require shorter or more readable titles; or even offer two titles (short and long) to help voters.

Only 10 percent of Colorado governments (272 out of 2710) now have petitions. In 1910 the Initiative was reserved to every unit of government. Counties and districts did not exercise legislative authority in 1910, so it did not matter much either way then. When the legislature delegated legislative authority to these governments, they failed to account for the fact that the Initiative was a power citizens “reserved themselves” in the Colorado Constitution. Thus, they delegated more than the constitution allowed them to delegate.

The last Referendum Petition to appear before Colorado votes was in 1932. A tax had been imposed margarine to protection the dairy industry from competition. It was challenged by Referendum Petition and defeated by voters. Referendum Petitions challenge a legislated law with two exceptions. Appropriations bills and threats to public health and safety are exempt from a Referendum Petition challenge. After 1932 the Safety Clause was contrived to disenfranchise citizens from their Referendum power and was attached to virtually every bill declaring the bill essential for the immediate protection of the public health and safety.

The Colorado Supreme Court has intentionally misinterpreted the 1994 Single Subject rule in order to insert itself as another stumbling block in the Initiative process.

The Colorado Legislature has the power (but not the will) to correct any or all of the above difficulties. That they do not, illustrates hostility toward the Initiative process; an unwillingness to uphold the Colorado Constitution or to abide by their oath of office; and a disrespect for the people who elect them to office. However Amendment 38, which will appear on the November ballot, seeks to correct several of these problems that the legislature won’t address.

The Initiative process gives the people a voice when legislators fail to hear their constituents. It helps representative government do a better job.

Learn more about this subject in the newly released, Issue Paper Protecting the People’s Voice: Identifying the Obstacles to Colorado’s Initiative and Referendum Process.