Constitution


Coloradans’ petition rights attacked in legislature

By Elena Nunez and Dennis Polhill

April 28, 2014

http://completecolorado.com/pagetwo/2014/04/28/coloradans-petition-rights-attacked-in-legislature/

Coloradans’ constitutional right to initiative and referendum have greatly improved this state’s political process. That right is under attack, again, in the Colorado Legislature and must be defended.

These critical tools have enabled we, the people, to debate and adopt policy — even controversial policy — that has allowed us to check the excesses of public officials and provide governmental balance. Though democratic processes are never flawless, after 100 years of experience, from reforming campaign finance rules to imposing term limits, there are good reasons the public favors initiative and referendum by a three-to-one margin.

One measure of their effectiveness is the deep hostility of many legislators, special interest groups and their lobbyists against the process, made clear by the General Assembly’s repeated attempts at “reform.”

In 1996, legislators placed Measure A on the ballot to require constitutional amendments proposed by citizen petition to garner a supermajority of 60 percent in order to pass, while the constitutional amendments legislators placed on the ballot would need only a simple majority. Voters overwhelmingly said, “No.”

In 2008, politicians again voted to “fix” the petition process by requiring constitutional amendments to pass with that same 60 percent supermajority, forcing citizens to collect 20 percent more signatures to qualify for the ballot and imposing an onerous geographic distribution requirement. Coloradans again voted “no.”

In 2009, the Legislature struck again, enacting severe restrictions on the petitions through House Bill 09-1326, this time all on their own, without asking the people for permission. The statute was challenged in federal court and many of its provisions were found unconstitutional.

In 2014, legislators and special interests again are discussing how to make it tougher for Coloradans to have a voice via their petition rights with House Concurrent Resolution 1002. This latest attack on the citizens’ right to amend the Colorado Constitution would require twice as many signatures as are currently required, and require that signatures be gathered in every congressional district in the state. The stated reason is to “protect” the Constitution. The impact is to make it prohibitive for citizens to exercise their right to initiative and referendum.

The Legislature already has the power to refer measures to voters; indeed, nearly two-thirds of state constitutional amendments have come from the Legislature, not citizen petitions. It seems they don’t oppose amending the constitution at all, but rather just don’t like citizens making the proposals.

How many times must Coloradans say no before legislators leave initiative and referendum alone?

There are reforms that would make the process better. Colorado can make improvements that would encourage citizens to pursue statutory initiatives rather than amending the constitution.

A few ideas include reducing the number of signatures required to propose statutory amendments, making it easier for citizens to sign petitions online, and guaranteeing that measures passed by voters couldn’t be changed by the legislature without a super majority vote or requiring another vote of the people. These types of changes would render statutory petitions easier to propose and also protect citizens from having legislators overrule popular votes.

Initiative and referendum offer a safety valve. It serves to resolve issues when legislators either refuse to act or go too far. The already-daunting process of reaching the ballot by petition is never used when the Legislature acts appropriately. Thus, the volume of issues appearing on the ballot by petition is a measure of legislative effectiveness. More issues on the ballot indicate a less effective legislature.

People have indicated time and again that they support the initiative process and want to have a strong voice in our state’s governance. Legislators owe it to themselves, their oaths of office, the constitution, and their constituents to look internally and correct legislative dysfunction before seeking to deflect blame.

Reject false “reforms” from politicians and special interests that place higher hurdles to citizen participation.

Elena Nunez is the executive director of Colorado Common Cause. Dennis Polhill is a senior fellow at the Independence Institute, a free market think tank in Denver. This article was originally published in the Greeley Tribune and subsequently by Complete Colorado.

A chance to devolve transportation power and money back to the states

 

by Dennis Polhill

December 8, 2013 Denver Post

 

For decades U.S. transportation policy has been stagnant. Because about half of gasoline taxes cycle through Washington, D.C, cost-sharing and benefits in transportation are distorted. A new bill offers a chance to restore the balance.

The Transportation Empowerment Act, introduced by U.S. Sen. Mike Lee (R–UT) and Representative Tom Graves (R-GA) gradually would lower the federal gas tax from the current 18.4 cents to 3.7 cents per gallon over 5 years. The legislation also would lift federal restrictions on state Departments of Transportation.

The most recent U.S. Government Accountability Office study of gas tax redistribution among states shows that nearly 5 cents of the federal 18.4 cents per gallon tax paid by Colorado motorists ends up in other states. Keeping Colorado money in Colorado would mean the equivalent of a 5-cent gas tax increase, or nearly $100 million per year in new transportation funding.

Not only would devolving the federal gas tax to the states result in a major boon to Colorado roads and bridges, it also would honor a promise made to the American people more than 50 years ago. In 1956 Congress passed the National Defense Highway Act to construct the Interstate Highway system. The temporary federal gas tax was promised to expire when construction was completed.

For all practical purposes interstate highway construction was finished in 1982. Unfortunately, taxes almost never go away, or get smaller. Nor do government agencies or programs. Coincidentally, 1982 marks the same year roads outside the interstate system became eligible for federal funding. By tripling eligible mileage, the U.S. Department of Transportation used road revenues to fund other things more aggressively. Increasing amounts of gas tax revenue were siphoned to fund non-road programs, and congressional earmarks mushroomed.

U.S. Sen. Tom Coburn’s book Breach of Trust documents a common practice. Each member of Congress is rewarded with a $15 million earmark for a chosen project in exchange for his vote to continue the federal gas tax.

Since 2008 federal gas tax revenues have not kept pace with vehicle miles driven and fuel efficiency gains. Rather than diminish the spending, though, Congress has backfilled the funding of transportation with revenue from the general fund.

The irresponsible tactic of accelerating the national debt to fund transportation pork has helped to silence the states on the question as to which states are being enriched at the expense of others.

Congress has created the perception that all states are enriched by federal largess, while Congress uses the money to keep control over any state that might stray into finding innovative solutions.

It is worth noting that the federal government does not own or operate any transportation infrastructure (other than roads in national parks, etc.). Normal roads, highways, streets, airports, and transit stations are owned by states, counties, cities or districts, making the cycling of funds thru D.C. questionable.

The title of the 1956 legislation (National Defense Highway Act) was not a typo. Not only were the roads built in part for national defense purposes, but the title also allowed Congress to sidestep the constitutional prohibition on federal spending for local transportation.

The controversy over federal involvement in transportation arose in the Early Republic. President Jefferson informed Congress on December 2, 1806, that he might support a constitutional amendment to allow federal involvement, but that without an amendment, the federal government had no authority over road-building. At least eight presidents, including Madison, issued no less than 19 vetoes of transportation bills as “unconstitutional.” Monroe’s only veto was of a transportation bill, but he issued two veto messages in an effort to help Congress understand.

If the Transportation Empowerment Act were to pass, most states probably would raise state gas taxes by an amount equal to the federal decrease. Revenue neutrality would yield a significant funding boost to transportation, particularly for states such as Colorado. The net revenue for gas tax money which is raised in the states returning to the states is less than 70 percent. But even that figure does not account for funding delays and the attached strings, nor for redistribution from one state to another.

Citizens who favor more highway funding dollars staying in Colorado should take a close look at the Lee/Graves bill.

Dennis Polhill is senior fellow in public infrastructure at the Independence Institute, a free market think thank in Denver

Colorado’s Petition Process Empowers Citizens

By Dennis Polhill and Elena Nunez February 2013

Coloradans’ constitutional right to initiative and referendum have greatly improved Colorado’s political process. That right must be defended.

These critical tools have enabled we, the people, to debate and adopt policy—even controversial policy—that have allowed us to check the excesses of public officials and provide governmental balance. Though democratic processes are never flawless, after 100 years of experience ¾ from reforming campaign finance rules to imposing term limits ¾ there are good reasons the public favors petition power by a three-to-one margin.

One measure of our success is the deep hostility of many legislators, special interest groups and their lobbyists against the initiative petition process, made clear by the General Assembly’s attempts at “reform.”

In 1996, legislators placed Measure A on the ballot to require constitutional amendments proposed by citizen petition to garner a supermajority of 60 percent in order to pass, while the constitutional amendments legislators placed on the ballot would need only a simple majority. Voters overwhelmingly said “NO!”

In 2008, politicians again voted to “fix” the petition process by requiring constitutional amendments to pass with that same 60 percent supermajority, forcing citizens to collect 20 percent more signatures to qualify for the ballot and imposing an onerous geographic distribution requirement. Coloradans again voted it down.

In 2009, the Legislature struck again, enacting severe restrictions on the petitions through HB 09-1326, this time all on their own, without asking the people for permission. The statute currently is being challenged in federal court and many of its provisions have been suspended until there is a ruling on the case because of the likelihood they will be found unconstitutional.

In 2011, legislators were at it again with Senate Concurrent Resolution 1, trying to amend the constitution to enact that same old 60 percent vote scheme along with other hurdles for petitions. Early in the legislative session, large majorities of both chambers passed slightly different versions, but later couldn’t agree on the details.

As the 2013 legislative session is underway, legislators and special interests again are discussing how to make it tougher for Coloradans to use their petition rights. Recently, TBD Colorado issued a call for “reform” which suggests the same old anti-petition schemes that voters have rejected time and again. The group recommends mandating a 60 percent supermajority to pass constitutional amendments and hiking up the signature requirement to put an issue before voters.

How many times must Coloradans say no before legislators leave our initiative rights alone?

While those advocating a clampdown on petitions claim they seek to protect the constitution, they also propose to create a new, unelected constitutional “review commission” that would have the power to place constitutional amendments on the ballot. Would the commission’s members represent the interests of the people, who have consistently rejected attempts to limit petition rights? Or will it be another vehicle for powerful interests to propose unpopular ideas?

The legislature already has the power to refer measures to voters; indeed, nearly two-thirds of state constitutional amendments have come from the legislature, not citizen petitions. It seems they don’t oppose amending the constitution at all, just allowing citizens to make proposals.

There are reforms that would make the process better. Colorado can make improvements that would encourage citizens to pursue statutory initiatives rather than amending the constitution. Those changes would render statutory petitions easier to propose and also protect citizens from having legislators overrule popular votes.

Reject false “reforms” from politicians and special interests that place higher hurdles to citizen participation.

Dennis Polhill is a senior fellow at the, Independence Institute, a free-market think thank in Denver. Elena Nunez is executive director of Colorado Common Cause.

This article was first published in Colorado Municipal League Magazine and was republished in Complete Colorado http://completecolorado.com/pagetwo/2013/03/09/colorados-petition-process-empowers-citizens-no-wonder-the-political-establishment-dislikes-it-so-much/

The Initiative and Referendum AlmanacDennis Polhill contributed three chapters to The Initiative and Referendum Almanac. You may read his contributions here:

The Issue of a National Initiative Process
The Role of I&R in Aiding the Women’s Suffrage Movement
Colorado Initiative Usage

From the Publisher:

No other book has ever provided such a complete and comprehensive history of the initiative and referendum process in the U.S. Waters provides such information as the definitions of initiative and referendum; the roots of the initiative and referendum movement; the history of how the process has been utilized; regulations of the initiative process in each state; legislative attempts to regulate the process; and the role of the judiciary. The book also includes a series of essays by leading scholars and activists about the reforms brought about through the initiative process, and a brief discussion on the future of the initiative process through the eyes of activists and elected officials.

A complete listing of all relevant laws associated with utilizing the initiative and referendum process in each state, as well as a checklist of the major steps of which initiative proponents should be aware, are also included in the almanac. The appendix contains a complete listing of every statewide initiative that has appeared on the ballot since 1904; a complete listing of all the popular and legislative referenda that have appeared on the ballot since 1998; as well as other charts and graphs tracking the usage of the process since its adoption in 1898.

“This is what we have been waiting for. As penetrating and stimulating as it is thorough and even-handed, the Almanac will spark and inform debate about our most democratic process of lawmaking. It is a gift to activists and scholars alike.”
-Richard Parker, Williams Professor of Law, Harvard Law School

“This uniquely comprehensive volume provides a wealth of invaluable information about the initiative and referendum process in the United States. The volume combines detailed information about the constitutional and statutory bases of initiative and referendum usage in all fifty states; descriptions of the major court decisions and legislative attempts to regulate the process; comparisons of I&R provisions across the states; and scholarly analyses of some of the main theoretical debates concerning its use. This is certain to be a critical resource for academics, policy analysts, advocates, lawmakers, citizens, the media—indeed, anyone interested in this increasingly important method of citizen lawmaking.”
-Elisabeth R. Gerber, Professor of Public Policy, University of Michigan

“The initiative and referendum mechanisms are two of the jewels of American democracy. They have been the tools to usher in critically important reforms in society, and they serve to excite and engage the electorate. This almanac provides a detailed roadmap on the history and workings of this important process. I recommend it for any person interested in politics in America.”
-Wayne Pacelle, Senior Vice President, The Humane Society of the United States

“Water’s volume provides a wealth of statistical and factual information on a neglected topic. . . . Public and and academic libraries, as well as American politics and and public policy collections, will . . . find this a worthwhile purchase.”
-CHOICE, January 2004

“Despite presenting a wealth of information, this book is well organized and very readable. Because the information it contains is of interest to scholars, students, and laypeople, this volume is highly recommended for all but the smallest public and academic libraries, and for high school libraries that support law and government courses.”
-American Reference Books Annual

This paper is a chapter from The Initiative & Referendum Almanac. You can purchase the book here.

By Dennis Polhill

The effort for I&R in Colorado was started by Dr. Persifor M. Cooke of Denver in the mid-1890s. As secretary and president of the Colorado Direct Legislation League, Cooke and the constitutional lawyer J. Warner Mills of Denver fought for I&R from 1900 until 1910, when Governor John F. Shafroth called a special session of the legislature to consider the issue. The constitutional amendments that were passed provided for initiative, referendum, and recall on both state and local levels.

Coloradans set their state’s record for initiative use the first year it was available, in 1912, by putting 22 initiatives and 6 popular referendums on the ballot. Eight of the initiatives passed and challenges to legislatively approved laws were sustained in 5 of the 6 cases. Among these were laws or amendments establishing an eight-hour work day for workers employed in “underground mines, smelters, mills and coke ovens”; giving women workers an eight-hour day; providing pensions for orphans and for widows with children; establishing juvenile courts in major cities and counties; and granting home rule to cities and towns.

Over the years Colorado voters proved sympathetic to the needs of the aged and infirm, approving initiatives providing for the treatment of mental illness in 1916 and 1920, relief for blind adults in 1918, pensions for the aged and for indigent tuberculosis sufferers in 1936, and increased pensions adjusted for inflation in 1956. Colorado voters also remained friendly to organized labor, approving an initiative statute changing the workmen’s compensation law to benefit employees in 1936 and defeating an employer-backed “Right to Work” initiative in 1958.

In the early 1970s, Coloradans passed environmentalist-backed initiatives to keep the Winter Olympics from being held in their state (1972) and prohibit underground nuclear explosions except with prior voter approval (1974). Richard Lamm, an obscure state legislator when he sponsored the anti-Olympics initiative, gained sufficient prestige from his leadership of this campaign to later win election as governor.

In 1984 Colorado became the first state to pass an initiative banning the use of state funds for abortion (the second was Arkansas, in 1988). Voters approved the measure by a single percentage point. Less controversial and more popular was the 1984 “Motor Voter” initiative, which set up a system of voter registration at driver’s licensing bureaus. This highly successful program increased the number of registered voters in Colorado by 12.4 percent in the 15 months from July 1985 to October 1986.

Hostility to the initiative process by the political establishment manifested itself in the 1976 election with a “No on Everything” campaign that outspent proponents with over 91% of all funds expended. The election was followed by a series of legislative efforts to restrict use of the initiative. Notorious for exceeding the ”reasonable regulation” guideline, Federal Courts have struck down more of Colorado initiative restrictions than any other state. Those most famous are Meyer v. Grant in 1986 and Buckley v. ACLF in 1999 – both went all the way to the U.S. Supreme Court.

Colorado is recognized for having spawned the Term Limits movement in 1990. Other states had term limits initiative in 1990 and in previous years. State Senator Terry Considine, frustrated that his peers would not consider his term limits bill, became an activist and drove the term limits law to fruition with a 71% favorable vote. Colorado’s initiative was unique in that it also sought to limit members of Congress. Large numbers of states approved term limits for members of Congress in subsequent elections. Colorado passed additional term limits initiatives in 1994, 1996, and 1998.

Coloradans would have preferred that their elected officials exercise self-restraint with taxation. Tax limit initiatives succeeded in making it to the ballot in 1966, 1972, 1976, 1978, 1986, 1988, 1990, and 1992, but failed at the ballot box until 1992. The 1992 effort sponsored by tax activist Doug Bruce and dubbed the Taxpayer Bill of Rights (TABOR), helped to revitalize the lagging taxpayer revolt begun in 1978 when Proposition 13 had been approved in California.

Recent use of the initiative peaked in 1992 with 10 initiatives on the ballot. Since 1992, use has been flat with a slight downward trend to 6 in 2000. Average is 8 per 2 year election cycle over the high use decade of the 1990s. Initiatives are blamed for long ballots, yet state issues referred to the ballot by the General Assembly generally equal the number of initiatives. Other issues referred to the ballot by local governments result in several times more referred measures than initiatives.

Statewide Initiative Usage

Number Of Initiatives Number Passed Number Failed Passage Rate
178 64 117 35%

Statewide Initiatives

Year Measure Number Type Subject Matter Description Pass/Fail
1912 1 DA Alcohol Regulation Providing for statewide prohibition. Failed
1912 10 DS Election Reform Amending election laws. Failed
1912 11 DA Initiative and Referendum Providing for the holding of special elections for voting on proposed constitutional amendments and initiated and referred laws. Failed
1912 12 DA Legal Defining contempt of court and providing for trial by jury for contempt in certain cases. Failed
1912 13 DA Utility Regulation Creating a public utilities court with exclusive power to fix and enforce reasonable rates, and for appeal direct to the supreme court from its decision. Failed
1912 14 DS Election Reform Amending election laws, and providing for a “headless ballot”. Passed
1912 15 DA Education Providing wider control of the schools by the people. Failed
1912 16 DA Judicial Reform Providing for juvenile courts in cities and counties of 100,000 population. Passed
1912 17 DS Welfare Mothers’ compensation act and aid to dependent and neglected children. Passed
1912 18 DS Administration of Government Relating to civil service and amending said law. Passed
1912 19 DS Labor Eight-hour law for work in underground mines, smelters, mills and coke ovens. Passed
1912 2 DS Alcohol Regulation Enforcement of prohibition laws by search and seizure. Failed
1912 20 DS Administration of Government Giving state highway commission control of certain funds. Failed
1912 3 DS Labor Women’s eight-hour employment law. Passed
1912 31 DA Bonds Authorizing a bonded indebtedness for public highways. Failed
1912 32 DS Administration of Government Construction of tunnel through James Peak. Failed
1912 4 DS Administration of Government Providing for the regulation of public service corporations. Failed
1912 5 DS Administration of Government Establishing a state fair. Failed
1912 6 DA Alien Rights Providing special funds for the state immigration bureau. Failed
1912 7 DS Initiative and Referendum Reducing costs of publishing constitutional amendments, initiated and referred laws, and publishing arguments for and against. Failed
1912 8 DA Administration of Government Granting home rule to cities and towns. Passed
1912 9 DA Election Reform Providing recall from office. Passed
1914 N/A DA Initiative and Referendum Giving people right to petition governor to call special elections for submitting measures under the initiative and referendum. Failed
1914 N/A DS Legal Permitting probation in criminal cases for minors and first offenders. Failed
1914 N/A DS Administration of Government Providing for codification of laws relating to women and children. Failed
1914 N/A DA Utility Regulation Designating newspapers as public utilities. Failed
1914 N/A DA Judicial Reform Providing for a 3/4 jury verdict in civil cases and permitting women to serve on juries if they desire. Failed
1914 N/A DA Alcohol Regulation Providing for statewide prohibition. Passed
1914 N/A DA Initiative and Referendum Providing that initiated measures rejected by people cannot again be initiated for six years, and if two conflicting measures be adopted at same election, one receiving largest affirmative vote shall prevail. Failed
1914 N/A DS Taxes Increasing state road fund by half mill levy for highway construction. Passed
1916 N/A DS Education Providing for the investment of public school funds in certain securities. Passed
1916 N/A DS Business Regulation Regulating the running of stock at large. Failed
1916 N/A DS Welfare Providing for the care and treatment of insane persons. Passed
1916 N/A DA Alcohol Regulation Declaring beer non-toxicating and providing for its manufacture and sale. Failed
1916 N/A DA Administration of Government Placing state civil service in the constitution. Failed
1916 N/A DS Taxes Abolishment of the state tax commission. Failed
1918 N/A DS Welfare Relief for blind adults. Passed
1918 N/A DA Administration of Government Placing state civil service in the constitution. Passed
1918 N/A DS Alcohol Regulation “Bone-dry” prohibition law. Passed
1920 N/A DS Health/Medical Appropriating $350,000 from the general fund for the establishment o the Psychopathic Hospital and Laboratory. Passed
1920 N/A DA Education Providing additional one mill levy for state educational institutions. Passed
1920 N/A DA Bonds Providing for the construction of the Moffat, Monarch and San Juan tunnels, and bond issue therefore. Failed
1920 N/A DS Business Regulation Relating to the practice of chiropractic, and providing for the regulation and licensing thereof. Failed
1920 N/A DS Administration of Government Creating the County of Limon. Failed
1920 N/A DS Administration of Government Creating the County of Flagler. Failed
1920 N/A DS Labor Fixing hours of employment in city fire departments. Passed
1922 N/A DA Bonds $1.5m bond issue for construction of public highways. Passed
1922 N/A DA Utility Regulation Creating a public utilities commission, prescribing its powers and duties, and defining public utilities. Failed
1922 N/A DA Taxes Giving legislature or people power to exempt certain intangibles from ad valorem taxation, and to impose an income tax in lieu thereof. Failed
1922 N/A DS Business Regulation Concerning experimental operations on human beings and dumb animals. Failed
1922 N/A DS Apportionment/Redistricting Revising apportionment of members of legislature. Failed
1924 N/A DA Administration of Government Establishing the office of state printer and printing building committee. Failed
1926 N/A DA Administration of Government Creating a public utilities commission and prescribing its powers and duties. Failed
1926 N/A DS Taxes Concerning the taxation of petroleum products and registration of motor vehicles, and providing that all such taxes and fees by used exclusively for roads. Failed
1926 N/A DS Business Regulation Amending law to permit dentists licensed in other states to practice in Colorado without examination. Failed
1928 N/A DA Education Providing for the election of a board of education, and for the appointment by said board of a commissioner of education to take place of superintendent of public instruction. Failed
1928 N/A DA Bonds Providing for a $60m bond issue for the construction of highways. Failed
1930 N/A DA Education Providing for the election of a board of education and for the appointment by said board of a commissioner of education to take place of superintendent of public instruction. Failed
1932 N/A DA Taxes Limiting taxation of motor fuel and ad valorem taxation of motor vehicles. Failed
1932 N/A DS Apportionment/Redistricting Reapportionment of members of legislature . Passed
1932 N/A DA Alcohol Regulation Repealing statewide prohibition, subject to national repeal. Passed
1932 N/A DA Taxes Giving legislature power to provide for a limited income tax and a classified personal property tax, to be used for public schools. Failed
1932 N/A DA Taxes Giving legislature power to provide for a graduated income tax for state purposes, abolishing property tax for state purposes, and giving any excess revenue to the public schools. Failed
1934 N/A DA Taxes Concerning the taxation of petroleum products and registration of motor vehicles and providing that such taxes and fees be used exclusively for roads. Passed
1934 N/A DS Business Regulation Imposing license fees on chain stores. Passed
1934 N/A DA Taxes Limiting tax on motor fuel to $.03 per gallon. Failed
1934 N/A DA Taxes Giving people sole power to impose or approve imposition of excise taxes through the initiative and referendum. Failed
1936 N/A DA Taxes Providing for ownership tax on motor vehicles in lieu of ad valorem taxation thereon, and for the distribution thereof. Passed
1936 N/A DS Welfare Providing for public assistance to indigent tubercular residents. Passed
1936 N/A DA Taxes Amending “uniformity clause” of constitution principally by limiting rate to taxation for all purposes to 20 mills in cities and towns of first class, and 15 mills in other divisions. Failed
1936 N/A DA Taxes Amending revenue section of constitution, principally by giving legislature power to provide for an income tax within limitations. Failed
1936 N/A DA Welfare Providing $45 per month old age pensions and designating certain taxes for the payment thereof. Passed
1936 N/A DS Labor Amending workmen’s compensation act to benefit of employee. Passed
1938 N/A DA Business Regulation Relating to the practice of the healing arts, and giving practitioners licensed by the state certain rights in tax supported institutions and power to regulate their own professions. Failed
1938 N/A DA Welfare Repeal of $45 per month old age pension amendment and giving legislature power to provide for pensions. Failed
1938 N/A DS Taxes Repeal of chain stores tax act. Failed
1940 N/A DA Taxes Providing for an income tax; requiring the legislature to levy such income tax at not lower than certain specified rates; and providing that the revenues derived there from shall replace property taxes. Failed
1940 N/A DA Environmental Reform Providing for the conservation of the state’s wildlife resources; limiting the use of game and fish revenues for such purposes; and establishing a Game and Fish Commission. Failed
1940 N/A DS Gaming Establishing a racing commission and legalizing horse and dog racing. Failed
1940 N/A DA Welfare Providing for a guaranteed old age pension of $30 per month to residents of the state over 65 years who qualify. Failed
1940 N/A DA Taxes Providing for an ad valorem tax on all intangible property in the state, and allocating the funds derived there from. Failed
1944 N/A DA Alien Rights Providing that aliens eligible to citizenship may acquire and dispose of real and personal property, and that provision shall be made by law concerning the right of aliens ineligible to citizenship to acquire and dispose of such property. Failed
1944 N/A DA Veteran Affairs Providing for preference to honorably discharged veterans and their widows in the civil service of the state and its political subdivisions. Passed
1944 N/A DS Welfare Appropriating $.5m for the then current biennium and $1.5m annually thereafter for old age pensions. Passed
1948 3 DA Alcohol Regulation Political subdivisions may adopt and thereafter modify or repeal local option proposals prohibiting the sale of alcoholic and fermented malt beverages. Failed
1948 4 DA Welfare Providing for a guaranteed minimum $55 per month old age pension and for the allocation and earmarking of certain moneys and excise taxes to pay the same. Failed
1950 3 DA Administration of Government Concerning civil service and providing for additional exemptions there from of governor’s staff. Failed
1952 4 DA Taxes Providing for a severance tax on certain petroleum products and natural gas. Failed
1952 6 DA Gaming Legalizing slot machines except where prohibited by local ordinance. Failed
1952 N/A DS Labor Making it unlawful for any municipality to employ firemen more than 60 hours a week, with certain exceptions. Failed
1954 8 DA Administration of Government Providing for four-year terms of office for certain County officers. (Art. 14, Sec. 8) Passed
1956 4 DA Apportionment/Redistricting Providing for apportionment of members of the general assembly. Failed
1956 5 DA Welfare Revising the old age pension article; establishing a monthly award of $100 to be adjusted to increased living costs; providing for a stabilization fund of $5 million. Passed
1958 1 DA Labor “Right-to-work” amendment; providing that no person shall be denied the freedom to obtain or retain employment because of membership or non-membership in any labor union or labor organization. Failed
1958 4 DA Gaming Legalizing the conduct of games of chance (limited to bingo, lotto, or raffles) by certain organizations which operate without profit to dues paying members. Passed
1960 3 DA Environmental Reform Creates a wildlife management commission and a department of wildlife conservation. Failed
1960 4 DS Daylight Savings Time Providing for and establishing Daylight Saving Time. Failed
1960 6 DA Taxes Authorizing general assembly to vest in counties, cities and towns, the power to impose a retail sales and use tax for local purposes on tangible personal property, except drugs, and food for off-premises consumption. Failed
1960 7 DA Administration of Government Authorizing governor, with consent of Senate, to appoint administrative officers of certain departments, to be excluded from civil service. Failed
1962 7 DA Apportionment/Redistricting An act providing for the apportionment of the Senate and House of Representatives of the General Assembly. Passed
1962 8 DA Apportionment/Redistricting Providing for reapportionment of the general assembly. Failed
1966 1 DS Daylight Savings Time Providing for Daylight Savings Time in Colorado. Passed
1966 2 DS Death Penalty Abolishing death penalty. Failed
1972 10 DS Utility Regulation An Act to protect the consumer of public utility services by defining just and reasonable rates, by creating an Office of Public Consumer Counsel. Failed
1972 11 DS Business Regulation Establishing a system of compulsory insurance and compensation irrespective of fault for victims of motor vehicle accidents, setting forth the basis for recovery. Failed
1972 6 DA Gaming An act to amend the Constitution to provide for a privately operated lottery, supervised and regulated by the Department of State and granting an exclusive original ten year license to the United States Sweepstakes Corporation. Failed
1972 8 DA Taxes An Act to Amend Art. 10 and 11 to prohibit the state from levying taxes and appropriating or loaning funds for the purpose of aiding or furthering the 1976 Winter Olympic Games. Passed
1972 9 DS Campaign Finance Reform Require that public officials disclose their private interests and that all lobbyists register and file periodic informational statements. Passed
1972 N/A DA Taxes Establishing a maximum limitation of one and one-half percent of the actual value on the annual taxation of property except as permitted by a vote of the qualified electors. Failed
1974 1 DA Administration of Government An act concerning the annexation of property by a County or city and County, and prohibiting the striking off of any territory from a County without first submitting the question to a vote of the qualified electors of the County and city. Passed
1974 10 DA Nuclear weapons/facilities/waste An act to amend the Constitution to establish procedural steps to be complied with prior to the detonation of nuclear explosive devises including voter approval. Passed
1974 2 DS Death Penalty Shall the death penalty be imposed upon persons convicted of Class 1 felonies where certain mitigating circumstances are not present and certain aggravating circumstances are present? Passed
1974 8 DA Education Prohibit the assignment or the transportation of pupils to public educational institutions in order to achieve racial balance of pupils at such institutions. Passed
1974 9 DA Apportionment/Redistricting Reapportioning of legislative districts by a body to be known as the Colorado Reapportionment Commission which shall consist of electors. Passed
1976 1 DA Gaming Authorize conduct of sweepstakes. Passed
1976 10 DA Taxes An Amendment adding a new Sec. 31 to Art. 10 requiring registered electoral approval of all state and local executive or legislative acts which result in new or increased taxes. Failed
1976 2 DA Taxes Classification/taxation of motor vehicles. Passed
1976 3 DA Nuclear weapons/facilities/waste An amendment requiring approval by two thirds of each House of the General Assembly prior to any construction or modification of a nuclear power plant or related facility. Failed
1976 4 DA Administration of Government Exemptions from state personnel systems. Failed
1976 5 DA Administration of Government Compensation of County officials. Failed
1976 6 DA Civil Rights An Act to repeal Sec. 29 of Art. 2 which section provides for equality of rights under the law on account of sex. Failed
1976 7 DS Taxes Exempts food and food products, with certain exceptions, from state sales and use taxes and repeal the food sales tax credit, to require the General Assembly to enact severance taxes and corporate income taxes to offset any revenue lost. Failed
1976 8 DS Environmental Reform Requires a minimum deposit refund value for beverage containers for malt liquor, including beer, and carbonated soft drinks manufactured, distributed, or sold for use in this state. Failed
1976 9 DS Utility Regulation Protects and represents consumers of public utilities services by creating a Department of Public Counselor, and concerning financial disclosures by Public Utilities Commissioners. Failed
1978 1 DA Administration of Government Office of County Commissioner, vacancies. Passed
1978 2 DA Taxes Limiting annual increases in per capita expenditures by the state and its political subdivisions. Failed
1982 1 DA Taxes Property tax assessment. Passed
1982 2 DA Legal An amendment to Authorizing the denial of bail to persons accused of a capital offense when proof is evident or presumption is great. Passed
1982 3 DA Judicial Reform Concerning the membership and appointment of the commission on judicial discipline. Passed
1982 5 DS Environmental Reform Refund on beverage containers. Failed
1982 6 M Nuclear weapons/facilities/waste To bring about the cessation of nuclear weapons component production in Colorado. Failed
1982 7 DS Business Regulation Regulate the sale of wine in grocery stores. Failed
1984 1 DA Administration of Government Appointment of Commissioner of Insurance. Passed
1984 2 DA Election Reform Providing that a person must be a registered elector in order to vote for state elected executive officers. Passed
1984 3 DA Abortion Ban the state funding of abortion. Passed
1984 4 DS Election Reform To provide for additional voter registration of qualified electors applying for a driver’s license. Passed
1984 5 DA Gaming Establish casino gambling in Pueblo. Failed
1986 1 DA Administration of Government Appointments by merit. Failed
1986 2 DA Administration of Government Compensation of County officers. Failed
1986 3 DA Initiative and Referendum Franchises subject to initiative and referendum. Passed
1986 4 DA Taxes Voter approval for tax increases. Failed
1988 1 DA Administration of Government English as official language. Passed
1988 2 DA Election Reform Reimbursement of Recall expenses. Passed
1988 3 DA Administration of Government Legislative session length. Passed
1988 4 DA Labor Concerning maximum eight-hour workday. Passed
1988 5 DA Taxes Property tax exempt non-producing mining claims. Passed
1988 6 DA Taxes Voter approval: increases in tax revenues. Failed
1988 7 DA Abortion Restore funding for abortions. Failed
1988 8 DA Administration of Government Referral of measures to committees. Passed
1990 1 DA Taxes To require voter approval for certain state and local government revenue increases. Failed
1990 2 DA Election Reform Colorado shall conduct a presidential primary election which conforms to political party rules. Passed
1990 4 DA Gaming Legalizing limited gaming. Passed
1990 5 DA Term Limits Term limits for elected officials. State legislature and Congress. 8/8 Passed
1992 1 DA Taxes Voter approval of tax revenue increases. Passed
1992 10 DS Animal Rights Prohibit taking of black bears. Passed
1992 2 DA Civil Rights Repeal local laws passed to ban discrimination based on sexual orientation and prevent similar new laws. Passed
1992 3 DA Gaming Limited gaming; surtax. Failed
1992 4 DA Gaming Limited gaming. Failed
1992 5 DA Gaming Limited gaming. Failed
1992 6 DS Education Act for system of educational standards. Failed
1992 7 DA Education Vouchers for school funding. Failed
1992 8 DA Environmental Reform The Great Outdoors Colorado program. Passed
1992 9 DA Gaming Limited gaming. Failed
1994 1 DA Taxes Would place an additional 50 cents per pack tax on the sale of cigarettes by wholesalers. Failed
1994 11 DA Labor Workers compensation benefits. Failed
1994 12 DA Campaign Finance Reform Placed limitations on elected officials compensation; enacted campaign contribution limitations. Failed
1994 13 DA Gaming To allow slot machines without a local vote in Manitou Springs. Failed
1994 15 DA Campaign Finance Reform Establish campaign contributions limits. Failed
1994 16 DA Civil Rights Would allow the control of the promotion of obscenity by the state and any city, town or County to the full extent permitted by the First Amendment to the United States Constitution. Failed
1994 17 DA Term Limits Term limits on Congress 6/12 and on all localities. Passed
1994 18 DA Administration of Government State medical assistance repayment. Failed
1996 11 DA Taxes Eliminates property tax exemptions of religious and nonprofit organizations. Failed
1996 12 DA Term Limits Term limits on Congress 6/12 and all localities. Passed
1996 13 DA Initiative and Referendum Expands initiative and referendum powers. Failed
1996 14 DA Animal Rights Concerns methods of taking wildlife; prohibits use of leg hold traps. Passed
1996 15 DS Campaign Finance Reform Limiting the amount of campaign contributions to candidate committees. Passed
1996 16 DA Administration of Government Concerns management of state’s trust lands; expands membership of the State Land Board. Passed
1996 17 DA Civil Rights Grants constitutional status to parents’ rights. Failed
1996 18 DA Gaming Allow limited gambling in the city of Trinidad. Failed
1998 11 DS Abortion Would prohibit partial birth abortion Failed
1998 12 DS Abortion Would require parents be notified prior to a physician performed abortion. Passed
1998 13 DA Animal Rights Would establish uniform livestock regulations. Failed
1998 14 DS Animal Rights Establish regulations for commercial hog farms Passed
1998 15 DS Environmental Reform Would regulate water flow meters. Failed
1998 16 DA Education Would require that payments by the Conservation District be made to the Public School Fund and School Districts. Failed
1998 17 DA Education Would establish Income Tax Credit for education expenses. Failed
1998 18 DA Term Limits Self Limit Law. Passed
2000 20 DA Drug Policy Reform Legalizes marijuana for medical purposes. Passed
2000 21 DA Taxes Amends TABOR – creates tax cuts. Failed
2000 22 DS Gun Regulation An initiative amendment to require background checks for guns purchased at gun shows. Passed
2000 23 DA Education Providing Additional K-12 Funding Passed
2000 24 DA Environmental Reform Citizen Growth Initiative. Failed
2000 25 DS Abortion This measure insures the provision of complete and accurate information to allow a woman to make an informed choice as to whether to give birth or to have an abortion. Failed
2001 26 DA Administration of Government Expends $50 million of 2001 tax refund revenues over a period of three years to fund a high-speed monorail. Passed

Colorado Constitution

Article V: Section 1. General assembly – initiative and referendum.
(1) The legislative power of the state shall be vested in the general assembly consisting of a senate and house of representatives, both to be elected by the people, but the people reserve to themselves the power to propose laws and amendments to the constitution and to enact or reject the same at the polls independent of the general assembly and also reserve power at their own option to approve or reject at the polls any act or item, section, or part of any act of the general assembly.
(2) The first power hereby reserved by the people is the initiative, and signatures by registered electors in an amount equal to at least five percent of the total number of votes cast for all candidates for the office of secretary of state at the previous general election shall be required to propose any measure by petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions for state legislation and amendments to the constitution, in such form as may be prescribed pursuant to law, shall be addressed to and filed with the secretary of state at least three months before the general election at which they are to be voted upon.
(3) The second power hereby reserved is the referendum, and it may be ordered, except as to laws necessary for the immediate preservation of the public peace, health, or safety, and appropriations for the support and maintenance of the departments of state and state institutions, against any act or item, section, or part of any act of the general assembly, either by a petition signed by registered electors in an amount equal to at least five percent of the total number of votes cast for all candidates for the office of the secretary of state at the previous general election or by the general assembly. Referendum petitions, in such form as may be prescribed pursuant to law, shall be addressed to and filed with the secretary of state not more than ninety days after the final adjournment of the session of the general assembly that passed the bill on which the referendum is demanded. The filing of a referendum petition against any item, section, or part of any act shall not delay the remainder of the act from becoming operative.
(4) The veto power of the governor shall not extend to measures initiated by or referred to the people. All elections on measures initiated by or referred to the people of the state shall be held at the biennial regular general election, and all such measures shall become the law or a part of the constitution, when approved by a majority of the votes cast thereon, and not otherwise, and shall take effect from and after the date of the official declaration of the vote thereon by proclamation of the governor, but not later than thirty days after the vote has been canvassed. This section shall not be construed to deprive the general assembly of the power to enact any measure.
(5) The original draft of the text of proposed initiated constitutional amendments and initiated laws shall be submitted to the legislative research and drafting offices of the general assembly for review and comment. No later than two weeks after submission of the original draft, unless withdrawn by the proponents, the legislative research and drafting offices of the general assembly shall render their comments to the proponents of the proposed measure at a meeting open to the public, which shall be held only after full and timely notice to the public. Such meeting shall be held prior to the fixing of a ballot title. Neither the general assembly nor its committees or agencies shall have any power to require the amendment, modification, or other alteration of the text of any such proposed measure or to establish deadlines for the submission of the original draft of the text of any proposed measure.
(5.5) No measure shall be proposed by petition containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any measure which shall not be expressed in the title, such measure shall be void only as to so much thereof as shall not be so expressed. If a measure contains more than one subject, such that a ballot title cannot be fixed that clearly expresses a single subject, no title shall be set and the measure shall not be submitted to the people for adoption or rejection at the polls. In such circumstance, however, the measure may be revised and resubmitted for the fixing of a proper title without the necessity of review and comment on the revised measure in accordance with subsection (5) of this section, unless the revisions involve more than the elimination of provisions to achieve a single subject, or unless the official or officials responsible for the fixing of a title determine that the revisions are so substantial that such review and comment is in the public interest. The revision and resubmission of a measure in accordance with this subsection (5.5) shall not operate to alter or extend any filing deadline applicable to the measure.
(6) The petition shall consist of sheets having such general form printed or written at the top thereof as shall be designated or prescribed by the secretary of state; such petition shall be signed by registered electors in their own proper persons only, to which shall be attached the residence address of such person and the date of signing the same. To each of such petitions, which may consist of one or more sheets, shall be attached an affidavit of some registered elector that each signature thereon is the signature of the person whose name it purports to be and that, to the best of the knowledge and belief of the affiant, each of the persons signing said petition was, at the time of signing, a registered elector. Such petition so verified shall be prima facie evidence that the signatures thereon are genuine and true and that the persons signing the same are registered electors.
(7) The secretary of state shall submit all measures initiated by or referred to the people for adoption or rejection at the polls, in compliance with this section. In submitting the same and in all matters pertaining to the form of all petitions, the secretary of state and all other officers shall be guided by the general laws.
(7.3) Before any election at which the voters of the entire state will vote on any initiated or referred constitutional amendment or legislation, the nonpartisan research staff of the general assembly shall cause to be published the text and title of every such measure. Such publication shall be made at least one time in at least one legal publication of general circulation in each county of the state and shall be made at least fifteen days prior to the final date of voter registration for the election. The form and manner of publication shall be as prescribed by law and shall ensure a reasonable opportunity for the voters statewide to become informed about the text and title of each measure.
(7.5) (a) Before any election at which the voters of the entire state will vote on any initiated or referred constitutional amendment or legislation, the nonpartisan research staff of the general assembly shall prepare and make available to the public the following information in the form of a ballot information booklet:
(I) The text and title of each measure to be voted on;
(II) A fair and impartial analysis of each measure, which shall include a summary and the major arguments both for and against the measure, and which may include any other information that would assist understanding the purpose and effect of the measure. Any person may file written comments for consideration by the research staff during the preparation of such analysis.
(b) At least thirty days before the election, the research staff shall cause the ballot information booklet to be distributed to active registered voters statewide.
(c) If any measure to be voted on by the voters of the entire state includes matters arising under section 20 of article X of this constitution, the ballot information booklet shall include the information and the titled notice required by section 20 (3) (b) of article X, and the mailing of such information pursuant to section 20 (3) (b) of article X is not required.
(d) The general assembly shall provide sufficient appropriations for the preparation and distribution of the ballot information booklet pursuant to this subsection (7.5) at no charge to recipients.
(8) The style of all laws adopted by the people through the initiative shall be, “Be it Enacted by the People of the State of Colorado”.
(9) The initiative and referendum powers reserved to the people by this section are hereby further reserved to the registered electors of every city, town, and municipality as to all local, special, and municipal legislation of every character in or for their respective municipalities. The manner of exercising said powers shall be prescribed by general laws; except that cities, towns, and municipalities may provide for the manner of exercising the initiative and referendum powers as to their municipal legislation. Not more than ten percent of the registered electors may be required to order the referendum, nor more than fifteen per cent to propose any measure by the initiative in any city, town, or municipality.
(10) This section of the constitution shall be in all respects self-executing; except that the form of the initiative or referendum petition may be prescribed pursuant to law.

Colorado Statutes

1-40-101 – Legislative declaration.
It is not the intention of this article to limit or abridge in any manner the powers reserved to the people in the initiative and referendum, but rather to properly safeguard, protect, and preserve inviolate for them these modern instrumentalities of democratic government.
As used in this article, unless the context otherwise requires:
(1) “Ballot issue” means a non-recall, citizen-initiated petition or legislatively-referred measure which is authorized by the state constitution, including a question as defined in sections 1-41-102 (3) and 1-41-103 (3), enacted in Senate Bill 93-98.
(2) “Ballot title” means the language which is printed on the ballot which is comprised of the submission clause and the title.
(3) (Deleted by amendment, L. 95, p. 430, § 2, effective May 8, 1995.)
(4) “Draft” means the typewritten proposed text of the initiative which, if passed, becomes the actual language of the constitution or statute, together with language concerning placement of the measure in the constitution or statutes.
(5) (Deleted by amendment, L. 95, p. 431, § 2, effective May 8, 1995.)
(6) “Section” means a bound compilation of initiative forms approved by the secretary of state, which shall include pages that contain the warning required by section 1-40-110 (1), the ballot title, and a copy of the proposed measure; succeeding pages that contain the warning, the ballot title, and ruled lines numbered consecutively for registered electors’ signatures; and a final page that contains the affidavit required by section 1-40-111 (2). Each section shall be consecutively prenumbered by the petitioner prior to circulation.
(7) (Deleted by amendment, L. 95, p. 431, § 2, effective May 8, 1995.)
(8) “Submission clause” means the language which is attached to the title to form a question which can be answered by “yes” or “no”.
(9) (Deleted by amendment, L. 2000, p. 1621, § 3, effective August 2, 2000.)
(10) “Title” means a brief statement that fairly and accurately represents the true intent and meaning of the proposed text of the initiative.
1-40-103 – Applicability of article.
(1) This article shall apply to all state ballot issues that are authorized by the state constitution unless otherwise provided by statute, charter, or ordinance.
(2) The laws pertaining to municipal initiatives, referenda, and referred measures are governed by the provisions of article 11 of title 31, C.R.S.
(3) The laws pertaining to county petitions and referred measures are governed by the provisions of section 30-11-103.5, C.R.S.
(4) The laws pertaining to school district petitions and referred measures are governed by the provisions of section 22-30-104 (4), C.R.S.
1-40-104 – Designated representatives.
At the time of any filing of a draft as provided in this article, the proponents shall designate the names and mailing addresses of two persons who shall represent the proponents in all matters affecting the petition and to whom all notices or information concerning the petition shall be mailed.
1-40-105 – Filing procedure – review and comment – amendments – filing with secretary of state.
(1) The original typewritten draft of every initiative petition for a proposed law or amendment to the state constitution to be enacted by the people, before it is signed by any elector, shall be submitted by the proponents of the petition to the directors of the legislative council and the office of legislative legal services for review and comment. Proponents are encouraged to write such drafts in plain, non-technical language and in a clear and coherent manner using words with common and everyday meaning which are understandable to the average reader. Upon request, any agency in the executive department shall assist in reviewing and preparing comments on the petition. No later than two weeks after the date of submission of the original draft, unless it is withdrawn by the proponents, the directors of the legislative council and the office of legislative legal services, or their designees, shall render their comments to the proponents of the petition concerning the format or contents of the petition at a meeting open to the public. Where appropriate, such comments shall also contain suggested editorial changes to promote compliance with the plain language provisions of this section. Except with the permission of the proponents, the comments shall not be disclosed to any person other than the proponents prior to the public meeting with the proponents of the petition.
(2) After the public meeting but before submission to the secretary of state for title setting, the proponents may amend the petition in response to some or all of the comments of the directors of the legislative council and the office of legislative legal services, or their designees. If any substantial amendment is made to the petition, other than an amendment in direct response to the comments of the directors of the legislative council and the office of legislative legal services, the amended petition shall be resubmitted to the directors for comment in accordance with subsection (1) of this section prior to submittal to the secretary of state as provided in subsection (4) of this section. If the directors have no additional comments concerning the amended petition, they may so notify the proponents in writing, and, in such case, a hearing on the amended petition pursuant to subsection (1) of this section is not required.
(3) To the extent possible, drafts shall be worded with simplicity and clarity and so that the effect of the measure will not be misleading or likely to cause confusion among voters. The draft shall not present the issue to be decided in such manner that a vote for the measure would be a vote against the proposition or viewpoint that the voter believes that he or she is casting a vote for or, conversely, that a vote against the measure would be a vote for a proposition or viewpoint that the voter is against.
(4) After the conference provided in subsections (1) and (2) of this section, a copy of the original typewritten draft submitted to the directors of the legislative council and the office of legislative legal services, a copy of the amended draft with changes highlighted or otherwise indicated, if any amendments were made following the last conference conducted pursuant to subsections (1) and (2) of this section, and an original final draft which gives the final language for printing shall be submitted to the secretary of state without any title, submission clause, or ballot title providing the designation by which the voters shall express their choice for or against the proposed law or constitutional amendment.
1-40-106 – Title board – meetings – titles and submission clause.
(1) For ballot issues, beginning with the first submission of a draft after an election, the secretary of state shall convene a title board consisting of the secretary of state, the attorney general, and the director of the office of legislative legal services or the director’s designee. The title board, by majority vote, shall proceed to designate and fix a proper fair title for each proposed law or constitutional amendment, together with a submission clause, at public meetings to be held at 2 p.m. on the first and third Wednesdays of each month in which a draft or a motion for reconsideration has been submitted to the secretary of state. To be considered at such meeting, a draft shall be submitted to the secretary of state no later than 3 p.m. on the twelfth day before the meeting at which the draft is to be considered by the title board. The first meeting of the title board shall be held no sooner than the first Wednesday in December after an election, and the last meeting shall be held no later than the third Wednesday in May in the year in which the measure is to be voted on.
(2) (Deleted by amendment, L. 95, p. 432, § 4, effective May 8, 1995.)
(3) (a) (Deleted by amendment, L. 2000, p. 1620, § 1, effective August 2, 2000.)
(b) In setting a title, the title board shall consider the public confusion that might be caused by misleading titles and shall, whenever practicable, avoid titles for which the general understanding of the effect of a “yes” or “no” vote will be unclear. The title for the proposed law or constitutional amendment, which shall correctly and fairly express the true intent and meaning thereof, together with the ballot title and submission clause, shall be completed within two weeks after the first meeting of the title board. Immediately upon completion, the secretary of state shall deliver the same with the original to the parties presenting it, keeping the copy with a record of the action taken thereon. Ballot titles shall be brief, shall not conflict with those selected for any petition previously filed for the same election, and shall be in the form of a question which may be answered “yes” (to vote in favor of the proposed law or constitutional amendment) or “no” (to vote against the proposed law or constitutional amendment) and which shall unambiguously state the principle of the provision sought to be added, amended, or repealed.
1-40-106.5 – Single-subject requirements for initiated measures and referred constitutional amendments – legislative declaration.
(1) The general assembly hereby finds, determines, and declares that:
(a) Section 1 (5.5) of article V and section 2 (3) of article XIX of the state constitution require that every constitutional amendment or law proposed by initiative and every constitutional amendment proposed by the general assembly be limited to a single subject, which shall be clearly expressed in its title;
(b) Such provisions were referred by the general assembly to the people for their approval at the 1994 general election pursuant to Senate Concurrent Resolution 93-4;
(c) The language of such provisions was drawn from section 21 of article V of the state constitution, which requires that every bill, except general appropriation bills, shall be limited to a single subject, which shall be clearly expressed in its title;
(d) The Colorado supreme court has held that the constitutional single-subject requirement for bills was designed to prevent or inhibit various inappropriate or misleading practices that might otherwise occur, and the intent of the general assembly in referring to the people section 1 (5.5) of article V and section 2 (3) of article XIX was to protect initiated measures and referred constitutional amendments from similar practices;
(e) The practices intended by the general assembly to be inhibited by section 1 (5.5) of article V and section 2 (3) of article XIX are as follows:
(I) To forbid the treatment of incongruous subjects in the same measure, especially the practice of putting together in one measure subjects having no necessary or proper connection, for the purpose of enlisting in support of the measure the advocates of each measure, and thus securing the enactment of measures that could not be carried upon their merits;
(II) To prevent surreptitious measures and apprise the people of the subject of each measure by the title, that is, to prevent surprise and fraud from being practiced upon voters.
(2) It is the intent of the general assembly that section 1 (5.5) of article V and section 2 (3) of article XIX be liberally construed, so as to avert the practices against which they are aimed and, at the same time, to preserve and protect the right of initiative and referendum.
(3) It is further the intent of the general assembly that, in setting titles pursuant to section 1 (5.5) of article V, the initiative title setting review board created in section 1-40-106 should apply judicial decisions construing the constitutional single-subject requirement for bills and should follow the same rules employed by the general assembly in considering titles for bills.
1-40-107 – Rehearing – appeal – fees – signing.
(1) Any person presenting an initiative petition or any registered elector who is not satisfied with a decision of the title board with respect to whether a petition contains more than a single subject pursuant to section 1-40-106.5, or who is not satisfied with the titles and submission clause provided by the title board and who claims that they are unfair or that they do not fairly express the true meaning and intent of the proposed state law or constitutional amendment may file a motion for a rehearing with the secretary of state within seven days after the decision is made or the titles and submission clause are set. The motion for rehearing shall be heard at the next regularly scheduled meeting of the title board; except that, if the title board is unable to complete action on all matters scheduled for that day, consideration of any motion for rehearing may be continued to the next available day, and except that, if the titles and submission clause protested were set at the last meeting in May, the motion shall be heard within forty-eight hours after the motion is filed.
(2) If any person presenting an initiative petition for which a motion for a rehearing is filed, any registered elector who filed a motion for a rehearing pursuant to subsection (1) of this section, or any other registered elector who appeared before the title board in support of or in opposition to a motion for rehearing is not satisfied with the ruling of the title board upon the motion, then the secretary of state shall furnish such person, upon request, a certified copy of the petition with the titles and submission clause of the proposed law or constitutional amendment, together with a certified copy of the motion for rehearing and of the ruling thereon. If filed with the clerk of the supreme court within five days thereafter, the matter shall be disposed of promptly, consistent with the rights of the parties, either affirming the action of the title board or reversing it, in which latter case the court shall remand it with instructions, pointing out where the title board is in error.
(3) The secretary of state shall be allowed a fee which shall be determined and collected pursuant to section 24-21-104 (3), C.R.S., for certifying a record of any proceedings before the title board. The clerk of the supreme court shall receive one-half the ordinary docket fee for docketing any such cause, all of which shall be paid by the parties desiring a review of such proceedings.
(4) No petition for any initiative measure shall be circulated nor any signature thereto have any force or effect which has been signed before the titles and submission clause have been fixed and determined as provided in section 1-40-106 and this section.
(5) In the event a motion for rehearing is filed in accordance with this section, the period for filing a petition in accordance with section 1-40-108 shall not begin until a final decision concerning the motion is rendered by the title board or the Colorado supreme court; except that under no circumstances shall the period for filing a petition be extended beyond three months prior to the election at which the petition is to be voted upon.
(6) (Deleted by amendment, L. 2000, p. 1622, § 5, effective August 2, 2000.)
(7) (Deleted by amendment, L. 95, p. 433, § 5, effective May 8, 1995.)
1-40-108 – Petition – time of filing.
(1) No petition for any ballot issue shall be of any effect unless filed with the secretary of state within six months from the date that the titles and submission clause have been fixed and determined pursuant to the provisions of sections 1-40-106 and 1-40-107 and unless filed with the secretary of state within the time required by the state constitution before the election at which it is to be voted upon. A petition for a ballot issue for the election to be held in November of odd-numbered years shall be filed with the secretary of state within the same time before such odd-year election as is required by the state constitution for issues to be voted on at the general election. All filings under this section must be made by 3 p.m. on the day of filing.
(2) (Deleted by amendment, L. 95, p. 433, § 6, effective May 8, 1995.)
1-40-109 – Signatures required.
(1) No petition for any initiated law or amendment to the state constitution shall be of any force or effect, nor shall the proposed law or amendment to the state constitution be submitted to the people of the state of Colorado for adoption or rejection at the polls, as is by law provided for, unless the petition for the submission of the initiated law or amendment to the state constitution is signed by the number of electors required by the state constitution.
(2) (Deleted by amendment, L. 95, p. 433, § 7, effective May 8, 1995.)
(3) Any person who is a registered elector may sign a petition for any ballot issue for which the elector is eligible to vote.
1-40-110 – Warning – ballot title.
(1) At the top of each page of every initiative or referendum petition section shall be printed, in a form as prescribed by the secretary of state, the following:

“WARNING: IT IS AGAINST THE LAW: For anyone to sign any initiative or referendum petition with any name other than his or her own or to knowingly sign his or her name more than once for the same measure or to knowingly sign a petition when not a registered elector who is eligible to vote on the measure.

DO NOT SIGN THIS PETITION UNLESS YOU ARE A REGISTERED ELECTOR AND ELIGIBLE TO VOTE ON THIS MEASURE. TO BE A REGISTERED ELECTOR, YOU MUST BE A CITIZEN OF COLORADO AND REGISTERED TO VOTE.

Before signing this petition, you are encouraged to read the text or the title of the proposed initiative or referred measure.”

(2) The ballot title for the measure shall then be printed on each page following the warning.
1-40-111 – Signatures – affidavits.
(1) Any initiative or referendum petition shall be signed only by registered electors who are eligible to vote on the measure. Each registered elector shall sign his or her own signature and shall print his or her name, the address at which he or she resides, including the street number and name, the city and town, the county, and the date of signing. Each registered elector signing a petition shall be encouraged by the circulator of the petition to sign the petition in ink. In the event a registered elector is physically disabled or is illiterate and wishes to sign the petition, the elector shall sign or make his or her mark in the space so provided. Any person, but not a circulator, may assist the disabled or illiterate elector in completing the remaining information required by this subsection (1). The person providing assistance shall sign his or her name and address and shall state that such assistance was given to the disabled or illiterate elector.
(2) To each petition section shall be attached a signed, notarized, and dated affidavit executed by the registered elector who circulated the petition section, which shall include his or her printed name, the address at which he or she resides, including the street name and number, the city or town, the county, and the date he or she signed the affidavit; that he or she has read and understands the laws governing the circulation of petitions; that he or she was a registered elector at the time the section of the petition was circulated and signed by the listed electors; that he or she circulated the section of the petition; that each signature thereon was affixed in the circulator’s presence; that each signature thereon is the signature of the person whose name it purports to be; that to the best of the circulator’s knowledge and belief each of the persons signing the petition section was, at the time of signing, a registered elector; and that he or she has not paid or will not in the future pay and that he or she believes that no other person has paid or will pay, directly or indirectly, any money or other thing of value to any signer for the purpose of inducing or causing such signer to affix his or her signature to the petition.
The secretary of state shall not accept for filing any section of a petition that does not have attached thereto the notarized affidavit required by this section. Any signature added to a section of a petition after the affidavit has been executed shall be invalid.
1-40-112 – Circulators – requirements.
(1) No section of a petition for any initiative or referendum measure shall be circulated by any person who is not a registered elector and at least eighteen years of age at the time the section is circulated.
(2) (a) All circulators who are not to be paid for circulating petitions concerning ballot issues shall display an identification badge that includes the words “VOLUNTEER CIRCULATOR” in bold-faced type which is clearly legible and the circulator’s name.
(b) All circulators who are to be paid for circulating petitions concerning ballot issues shall display an identification badge that includes the words “PAID CIRCULATOR” in bold-faced type which is clearly legible, the circulator’s name, and the name and telephone number of the individual employing the circulator.
1-40-113 – Form – representatives of signers.
(1) Each section of a petition shall be printed on a form as prescribed by the secretary of state. No petition shall be printed, published, or otherwise circulated unless the form and the first printer’s proof of the petition have been approved by the secretary of state. Each petition section shall designate by name and mailing address two persons who shall represent the signers thereof in all matters affecting the same. The secretary of state shall assure that the petition contains only the matters required by this article and contains no extraneous material. All sections of any petition shall be prenumbered serially, and the circulation of any petition section described by this article other than personally by a circulator is prohibited. Any petition section that fails to conform to the requirements of this article or is circulated in a manner other than that permitted in this article shall be invalid.
(2) Any disassembly of a section of the petition which has the effect of separating the affidavits from the signatures shall render that section of the petition invalid and of no force and effect.
(3) Prior to the time of filing, the persons designated in the petition to represent the signers shall bind the sections of the petition in convenient volumes consisting of one hundred sections of the petition if one hundred or more sections are available or, if less than one hundred sections are available to make a volume, consisting of all sections that are available. Each volume consisting of less than one hundred sections shall be marked on the first page of the volume. However, any volume that contains more or less than one hundred sections, due only to the oversight of the designated representatives of the signers or their staff, shall not result in a finding of insufficiency of signatures therein. Each section of each volume shall include the affidavits required by section 1-40-111 (2), together with the sheets containing the signatures accompanying the same. These bound volumes shall be filed with the secretary of state.
1-40-114 – Petitions – not election materials – no bilingual language requirement.
The general assembly hereby determines that initiative petitions are not election materials or information covered by the federal “Voting Rights Act of 1965”, and therefore are not required to be printed in any language other than English to be circulated in any county in Colorado.
1-40-115 – Ballot – voting – publication.
(1) Measures shall appear upon the official ballot by ballot title only. The measures shall be placed on the ballot in the order in which they were certified to the ballot and as provided in section 1-5-407 (5).
(2) All ballot issues shall be printed on the official ballot in that order, together with their respective letters and numbers prefixed in bold-faced type. Each ballot shall have the following explanation printed one time at the beginning of such ballot issues: “Ballot issues referred by the general assembly or any political subdivision are listed by letter, and ballot issues initiated by the people are listed numerically. A ‘yes’ vote on any ballot issue is a vote in favor of changing current law or existing circumstances, and a ‘no’ vote on any ballot issue is a vote against changing current law or existing circumstances.” Each ballot title shall appear on the official ballot but once and shall be separated from the other ballot titles next to it by heavy black lines and shall be followed by the words “yes” and “no” with blank spaces to the right and opposite the same as follows:

(HERE SHALL APPEAR THE BALLOT TITLE IN FULL)

YES ______ NO ______

(3) A voter desiring to vote for the measure shall make a cross mark (X) in the blank space to the right and opposite the word “yes”; a voter desiring to vote against the measure shall make a cross mark (X) in the blank space to the right and opposite the word “no”; and the votes marked shall be counted accordingly. Any measure approved by the people of the state shall be printed with the acts of the next general assembly.
1-40-116 – Verification – ballot issues – random sampling.
(1) For ballot issues, each section of a petition to which there is attached an affidavit of the registered elector who circulated the petition that each signature thereon is the signature of the person whose name it purports to be and that to the best of the knowledge and belief of the affiant each of the persons signing the petition was at the time of signing a registered elector shall be prima facie evidence that the signatures are genuine and true, that the petitions were circulated in accordance with the provisions of this article, and that the form of the petition is in accordance with this article.
(2) Upon submission of the petition, the secretary of state shall examine each name and signature on the petition. The petition shall not be available to the public for a period of no more than thirty calendar days for the examination. The secretary shall assure that the information required by sections 1-40-110 and 1-40-111 is complete, that the information on each signature line was written by the person making the signature, and that no signatures have been added to any sections of the petition after the affidavit required by section 1-40-111 (2) has been executed.
(3) No signature shall be counted unless the signer is a registered elector and eligible to vote on the measure. A person shall be deemed a registered elector if the person’s name and address appear on the master voting list kept by the secretary of state at the time of signing the section of the petition. In addition, the secretary of state shall not count the signature of any person whose information is not complete or was not completed by the elector or a person qualified to assist the elector. The secretary of state may adopt rules consistent with this subsection (3) for the examination and verification of signatures.
(4) The secretary of state shall verify the signatures on the petition by use of random sampling. The random sample of signatures to be verified shall be drawn so that every signature filed with the secretary of state shall be given an equal opportunity to be included in the sample. The secretary of state is authorized to engage in rule making to establish the appropriate methodology for conducting such random sample. The random sampling shall include an examination of no less than five percent of the signatures, but in no event less than four thousand signatures. If the random sample verification establishes that the number of valid signatures is ninety percent or less of the number of registered eligible electors needed to find the petition sufficient, the petition shall be deemed to be not sufficient. If the random sample verification establishes that the number of valid signatures totals one hundred ten percent or more of the number of required signatures of registered eligible electors, the petition shall be deemed sufficient. If the random sampling shows the number of valid signatures to be more than ninety percent but less than one hundred ten percent of the number of signatures of registered eligible electors needed to declare the petition sufficient, the secretary of state shall order the examination and verification of each signature filed.
1-40-117 – Statement of sufficiency – statewide issues.
(1) After examining the petition, the secretary of state shall issue a statement as to whether a sufficient number of valid signatures appears to have been submitted to certify the petition to the ballot.
(2) If the petition was verified by random sample, the statement shall contain the total number of signatures submitted and whether the number of signatures presumed valid was ninety percent of the required total or less or one hundred ten percent of the required total or more.
(3) (a) If the secretary declares that the petition appears not to have a sufficient number of valid signatures, the statement issued by the secretary shall specify the number of sufficient and insufficient signatures. The secretary shall identify by section number and line number within the section those signatures found to be insufficient and the grounds for the insufficiency. Such information shall be kept on file for public inspection in accordance with section 1-40-118.
(b) In the event the secretary of state issues a statement declaring that a petition, having first been submitted with the required number of signatures, appears not to have a sufficient number of valid signatures, the representatives designated by the proponents pursuant to section 1-40-104 may cure the insufficiency by filing an addendum to the original petition for the purpose of offering such number of additional signatures as will cure the insufficiency. No addendum offered as a cure shall be considered unless the addendum conforms to requirements for petitions outlined in sections 1-40-110, 1-40-111, and 1-40-113, and unless the addendum is filed with the secretary of state within the fifteen-day period after the insufficiency is declared and unless filed with the secretary of state within the time required by the state constitution before the election at which the initiative petition is to be voted on. All filings under this paragraph (b) shall be made by 3 p.m. on the day of filing. Upon submission of a timely filed addendum, the secretary of state shall order the examination and verification of each signature on the addendum. The addendum shall not be available to the public for a period of up to ten calendar days for such examination. After examining the petition, the secretary of state shall, within ten calendar days, issue a statement as to whether the addendum cures the insufficiency found in the original petition.
1-40-118 – Protest.
(1) A protest in writing, under oath, together with three copies thereof, may be filed in the district court for the county in which the petition has been filed by some registered elector, within thirty days after the secretary of state issues a statement as to whether the petition has a sufficient number of valid signatures, which statement shall be issued no later than thirty calendar days after the petition has been filed. If the secretary of state fails to issue a statement within thirty calendar days, the petition shall be deemed sufficient. During the period a petition is being examined by the secretary of state for sufficiency, the petition shall not be available to the public; except that such period shall not exceed thirty calendar days.
(2) If the secretary of state conducted a random sample of the petitions and did not verify each signature, the protest shall specifically allege the defects in the procedure used by the secretary of state in the verification of the petition or the grounds for challenging individual signatures. If the secretary of state verified each name on the petition sections, the protest shall set forth with particularity the grounds of the protest and the signatures protested. No signature may be challenged that is not identified in the protest by section number, line number, name, and reason why the secretary of state is in error. If any party is protesting the finding of the secretary of state regarding the registration of a signer, the protest shall be accompanied by an affidavit of the elector or a copy of the election record of the signer.
(3) (Deleted by amendment, L. 95, p. 436, § 13, effective May 8, 1995.)
(4) The secretary of state shall furnish a requesting protestor with a computer tape or microfiche listing of the names of all registered electors in the state and shall charge a fee which shall be determined and collected pursuant to section 24-21-104 (3), C.R.S., to cover the cost of furnishing the listing.
1-40-119 – Procedure for hearings.
At any hearing held under this article, the party protesting the finding of the secretary of state concerning the sufficiency of signatures shall have the burden of proof. Hearings shall be had as soon as is conveniently possible and shall be concluded within thirty days after the commencement thereof, and the result of such hearings shall be forthwith certified to the designated representatives of the signers and to the protestors of the petition. The hearing shall be subject to the provisions of the Colorado rules of civil procedure. Upon application, the decision of the court shall be reviewed by the Colorado supreme court.
1-40-120 – Filing in federal court.
In case a complaint has been filed with the federal district court on the grounds that a petition is insufficient due to failure to comply with any federal law, rule, or regulation, the petition may be withdrawn by the two persons designated pursuant to section 1-40-104 to represent the signers of the petition and, within fifteen days after the court has issued its order in the matter, may be amended and refiled as an original petition. Nothing in this section shall prohibit the timely filing of a protest to any original petition, including one that has been amended and refiled. No person shall be entitled, pursuant to this section, to amend an amended petition.
1-40-121 – Receiving money to circulate petitions – filing.
(1) The proponents of the petition shall file with the official who receives filings under the “Fair Campaign Practices Act”, article 45 of this title, for the election the name, address, and county of voter registration of all circulators who were paid to circulate any section of the petition, the amount paid per signature, and the total amount paid to each circulator. The filing shall be made at the same time the petition is filed with the secretary of state. Any payment made to circulators is an expenditure under article 45 of this title.
(2) The proponents of the petition shall sign and file monthly reports with the secretary of state, due ten days after the last day of each month in which petitions are circulated on behalf of the proponents by paid circulators. Monthly reports shall set forth the following:
(a) The names of the proponents;
(b) The name and the residential and business addresses of each of the paid circulators;
(c) The name of the proposed ballot measure for which petitions are being circulated by paid circulators; and
(d) The amount of money paid and owed to each paid circulator for petition circulation during the month in question.
1-40-122 – Certification of ballot titles.
(1) The secretary of state, at the time the secretary of state certifies to the county clerk and recorder of each county the names of the candidates for state and district offices for general election, shall also certify to them the ballot titles and numbers of each initiated and referred measure filed in the office of the secretary of state to be voted upon at such election.
(2) Repealed.
1-40-123 – Counting of votes – effective date – conflicting provisions.
The votes on all measures submitted to the people shall be counted and properly entered after the votes for candidates for office cast at the same election are counted and shall be counted, canvassed, and returned and the result determined and certified in the manner provided by law concerning other elections. The secretary of state who has certified the election shall, without delay, make and transmit to the governor a certificate of election. The measure shall take effect from and after the date of the official declaration of the vote by proclamation of the governor, but not later than thirty days after the votes have been canvassed, as provided in section 1 of article V of the state constitution. A majority of the votes cast thereon shall adopt any measure submitted, and, in case of adoption of conflicting provisions, the one that receives the greatest number of affirmative votes shall prevail in all particulars as to which there is a conflict.
1-40-124 – Publication.
(1) (a) In accordance with section 1 (7.3) of article V of the state constitution, the director of research of the legislative council of the general assembly shall cause to be published at least one time in every legal newspaper, as defined in sections 24-70-102 and 24-70-103 (1), C.R.S., compactly and without unnecessary spacing, in not less than eight-point standard type, a true copy of:
(I) The title and text of each constitutional amendment, initiated or referred measure, or part of a measure, to be submitted to the people with the number and form in which the ballot title thereof will be printed in the official ballot; and
(II) The text of each referred or initiated question arising under section 20 of article X of the state constitution, as defined in section 1-41-102 (3), to be submitted to the people with the number and form in which such question will be printed in the official ballot.
(b) The charge for publication shall be at the newspaper’s then effective current lowest bulk comparable or general rate charged. The director of research shall provide all of the legal newspapers either complete slick proofs or mats of the title and text of the proposed constitutional amendment, initiated or referred measure, or part of a measure, and of the text of a referred or initiated question arising under section 20 of article X of the state constitution, as defined in section 1-41-102 (3), at least one week before the publication date.
(2) (Deleted by amendment, L. 95, p. 437, § 18, effective May 8, 1995.)
1-40-124.5 – Ballot information booklet.
(1) The director of research of the legislative council of the general assembly shall prepare a ballot information booklet for any initiated or referred constitutional amendment or legislation, including a question, as defined in section 1-41-102 (3), in accordance with section 1 (7.5) of article V of the state constitution. If it appears that any measure has a significant fiscal impact on the state or any of its political subdivisions, the booklet shall include an estimate of the fiscal impact of such measure, taking into consideration fiscal impact information submitted by the office of state planning and budgeting, the department of local affairs, any proponent, or other interested person. Prior to completion of the booklet, a draft shall be reviewed by the legislative council at a public hearing held after notice. At the hearing, any proponent or other interested person shall be allowed to comment on the accuracy or fairness of the analysis of any ballot issue addressed by the booklet.
(1.5) The executive committee of the legislative council of the general assembly shall be responsible for providing the fiscal information on any ballot issue that must be included in the ballot information booklet pursuant to section 1 (7.5) (c) of article V of the state constitution.
(2) Following completion of the ballot information booklet, the director of research shall arrange for its distribution to every residence of one or more active registered electors in the state. Distribution may be accomplished by such means as the director of research deems appropriate to comply with section 1 (7.5) of article V of the state constitution, including, but not limited to, mailing the ballot information booklet to electors and insertion of the ballot information booklet in newspapers of general circulation in the state. The distribution shall be performed pursuant to a contract or contracts bid and entered into after employing standard competitive bidding practices including, but not limited to, the use of requests for information, requests for proposals, or any other standard vendor selection practices determined to be best suited to selecting an appropriate means of distribution and an appropriate contractor or contractors. The executive director of the department of personnel shall provide such technical advice and assistance regarding bidding procedures as deemed necessary by the director of research.
(3) There is hereby established in the state treasury the ballot information publication and distribution revolving fund. Moneys shall be appropriated to the fund each year by the general assembly in the annual general appropriation act. All interest earned on the investment of moneys in the fund shall be credited to the fund. Moneys in the revolving fund are continuously appropriated to the legislative council of the general assembly to pay the costs of publishing the text and title of each constitutional amendment, initiated or referred measure, or part of a measure, and the text of a referred or initiated question arising under section 20 of article X of the state constitution, as defined in section 1-41-102 (3), in every legal newspaper in the state, as required by section 1-40-124, and the costs of distributing the ballot information booklet, as required by subsection (2) of this section. Any moneys credited to the revolving fund and unexpended at the end of any given fiscal year shall remain in the fund and shall not revert to the general fund.
1-40-125 – Mailing to electors.
(1) The requirements of this section shall apply to any ballot issue involving a local government matter arising under section 20 of article X of the state constitution, as defined in section 1-41-103 (4), for which notice is required to be mailed pursuant to section 20 (3) (b) of article X of the state constitution. A mailing is not required for a ballot issue that does not involve a local government matter arising under section 20 of article X of the state constitution, as defined in section 1-41-103 (4).
(2) Thirty days before a ballot issue election, political subdivisions shall mail at the least cost and as a package where districts with ballot issues overlap, a titled notice or set of notices addressed to “all registered voters” at each address of one or more active registered electors. Except for voter-approved additions, notices shall include only:
(a) The election date, hours, ballot title, text, and local election office address and telephone number;
(b) For proposed district tax or bonded debt increases, the estimated or actual total of district fiscal year spending for the current year and each of the past four years, and the overall percentage and dollar change;
(c) For the first full fiscal year of each proposed political subdivision tax increase, district estimates of the maximum dollar amount of each increase and of district fiscal year spending without the increase;
(d) For proposed district bonded debt, its principal amount and maximum annual and total district repayment cost, and the principal balance of total current district bonded debt and its maximum annual and remaining local district repayment cost;
(e) Two summaries, up to five hundred words each, one for and one against the proposal, of written comments filed with the election officer by thirty days before the election. No summary shall mention names of persons or private groups, nor any endorsements of or resolutions against the proposal. Petition representatives following these rules shall write this summary for their petition. The election officer shall maintain and accurately summarize all other relevant written comments.
(3) The provisions of this section shall not apply to a ballot issue that is subject to the provisions of section 1-40-124.5.
1-40-126 – Explanation of effect of “yes” or “no” vote included in notices provided by mailing or publication.
In any notice to electors provided by the director of research of the legislative council, whether by mailing pursuant to section 1-40-124.5 or publication pursuant to section 1-40-124, there shall be included the following explanation preceding any information about individual ballot issues: “A ‘yes’ vote on any ballot issue is a vote in favor of changing current law or existing circumstances, and a ‘no’ vote on any ballot issue is a vote against changing current law or existing circumstances.”
1-40-130 – Unlawful acts – penalty.
(1) It is unlawful:
(a) For any person willfully and knowingly to circulate or cause to be circulated or sign or procure to be signed any petition bearing the name, device, or motto of any person, organization, association, league, or political party, or purporting in any way to be endorsed, approved, or submitted by any person, organization, association, league, or political party, without the written consent, approval, and authorization of the person, organization, association, league, or political party;
(b) For any person to sign any name other than his or her own to any petition or knowingly to sign his or her name more than once for the same measure at one election;
(c) For any person to knowingly sign any petition who is not a registered elector at the time of signing the same;
(d) For any person to sign any affidavit as circulator without knowing or reasonably believing the statements made in the affidavit to be true;
(e) For any person to certify that an affidavit attached to a petition was subscribed or sworn to before him or her unless it was so subscribed and sworn to before him or her and unless the person so certifying is duly qualified under the laws of this state to administer an oath;
(f) For any officer or person to do willfully, or with another or others conspire, or agree, or confederate to do, any act which hinders, delays, or in any way interferes with the calling, holding, or conducting of any election permitted under the initiative and referendum powers reserved by the people in section 1 of article V of the state constitution or with the registering of electors therefor;
(g) For any officer to do willfully any act which shall confuse or tend to confuse the issues submitted or proposed to be submitted at any election, or refuse to submit any petition in the form presented for submission at any election;
(h) For any officer or person to violate willfully any provision of this article.
(2) Any person, upon conviction of a violation of any provision of this section, shall be punished by a fine of not more than five hundred dollars, or by imprisonment for not more than one year in the county jail, or by both such fine and imprisonment.
1-40-131 – Tampering with initiative or referendum petition.
Any person who willfully destroys, defaces, mutilates, or suppresses any initiative or referendum petition or who willfully neglects to file or delays the delivery of the initiative or referendum petition or who conceals or removes any initiative or referendum petition from the possession of the person authorized by law to have the custody thereof, or who adds, amends, alters, or in any way changes the information on the petition as provided by the elector, or who aids, counsels, procures, or assists any person in doing any of said acts commits a misdemeanor and, upon conviction thereof, shall be punished as provided in section 1-13-111. The language in this section shall not preclude a circulator from striking a complete line on the petition if the circulator believes the line to be invalid.
1-40-132 – Enforcement.
(1) The secretary of state is charged with the administration and enforcement of the provisions of this article relating to initiated or referred measures and state constitutional amendments. The secretary of state shall have the authority to promulgate rules as may be necessary to administer and enforce any provision of this article that relates to initiated or referred measures and state constitutional amendments. The secretary of state may conduct a hearing, upon a written complaint by a registered elector, on any alleged violation of the provisions relating to the circulation of a petition, which may include but shall not be limited to the preparation or signing of an affidavit by a circulator. If the secretary of state, after the hearing, has reasonable cause to believe that there has been a violation of the provisions of this article relating to initiated or referred measures and state constitutional amendments, he or she shall notify the attorney general, who may institute a criminal prosecution. If a circulator is found to have violated any provision of this article or is otherwise shown to have made false or misleading statements relating to his or her section of the petition, such section of the petition shall be deemed void.
(2) (Deleted by amendment, L. 95, p. 439, § 22, effective May 8, 1995.)
1-40-133 – Retention of petitions.
After a period of three years from the time of submission of the petitions to the secretary of state, if it is determined that the retention of the petitions is no longer necessary, the secretary of state may destroy the petitions.
1-40-134 – Withdrawal of initiative petition.
The designated representatives of the proponents of an initiative petition may withdraw the petition from consideration as a ballot issue by filing a letter with the secretary of state requesting that the petition not be placed on the ballot. The letter shall be signed and acknowledged by both designated representatives before an officer authorized to take acknowledgments and shall be filed no later than thirty-three days prior to the election at which the initiative is to be voted upon.
31-11-104 – Ordinances – initiative – conflicting measures.
(1) Any proposed ordinance may be submitted to the legislative body of any municipality by filing written notice of the proposed ordinance with the clerk and, within one hundred eighty days after approval of the petition pursuant to section 31-11-106 (1), by filing a petition signed by at least five percent of the registered electors of the city or town on the date of such notice. The proposed ordinance may be adopted without alteration by the legislative body within twenty days following the final determination of petition sufficiency. If vetoed by the mayor, the proposed ordinance may be passed over the mayor’s veto within ten days after the veto. If the proposed ordinance is not adopted by the legislative body, the legislative body shall forthwith publish the proposed ordinance as other ordinances are published and shall refer the proposed ordinance, in the form petitioned for, to the registered electors of the municipality at a regular or special election held not less than sixty days and not more that one hundred fifty days after the final determination of petition sufficiency, unless otherwise required by the state constitution. The ordinance shall not take effect unless a majority of the registered electors voting on the measure at the election vote in favor of the measure.
(2) Alternative ordinances may be submitted at the same election, and, if two or more conflicting measures are approved by the people, the one that receives the greatest number of affirmative votes shall be adopted in all particulars as to which there is a conflict.
31-11-105 – Ordinances – when effective – referendum.
(1) No ordinance passed by the legislative body of any municipality shall take effect before thirty days after its final passage and publication, except an ordinance calling for a special election or necessary to the immediate preservation of the public peace, health, or safety, and not then unless the ordinance states in a separate section the reasons why it is necessary and unless it receives the affirmative vote of three-fourths of all the members elected to the legislative body taken by ayes and noes.
(2) Within thirty days after final publication of the ordinance, a referendum petition protesting against the effect of the ordinance or any part thereof may be filed with the clerk. The petition must be signed during the thirty-day period by at least five percent of the registered electors of the municipality registered on the date of final publication.
(3) If a referendum petition is filed, the ordinance or part thereof protested against shall not take effect, and, upon a final determination of petition sufficiency, the legislative body shall promptly reconsider the ordinance. If the petition is declared not sufficient by the clerk or found not sufficient in a protest, the ordinance shall forthwith take effect, unless otherwise provided therein.
(4) If, upon reconsideration, the ordinance or part thereof protested is not repealed, the legislative body shall submit the measure to a vote of the registered electors at a regular or special election held not less than sixty days and not more than one hundred fifty days after the final determination of petition sufficiency, unless otherwise required by the state constitution. The ordinance or part thereof shall not take effect unless a majority of the registered electors voting on the measure at the election vote in favor of the measure.
31-11-106 – Form of petition sections.
(1) Each petition section shall be printed in a form consistent with the requirements of this article. No petition section shall be printed or circulated unless the form and the first printer’s proof of the petition section have first been approved by the clerk. The clerk shall approve or reject the form and the first printer’s proof of the petition no later than five business days following the date on which the clerk received such material. The clerk shall assure that the petition section contains only those elements required by this article and contains no extraneous material. The clerk may reject a petition or a section of a petition on the grounds that the petition or a section of the petition does not propose municipal legislation pursuant to section 1 (9) of article V of the state constitution.
(2) Each petition section shall designate by name and mailing address two persons who shall represent the proponents thereof in all matters affecting the petition and to whom all notices or information concerning the petition shall be mailed.
(3) (a) At the top of each page of every initiative or referendum petition section, the following shall be printed, in a form as prescribed by the clerk:

“WARNING: IT IS AGAINST THE LAW: For anyone to sign any initiative or referendum petition with any name other than his or her own or to knowingly sign his or her name more than once for the same measure or to knowingly sign a petition when not a registered elector who is eligible to vote on the measure.

DO NOT SIGN THIS PETITION UNLESS YOU ARE A REGISTERED ELECTOR AND ELIGIBLE TO VOTE ON THIS MEASURE. TO BE A REGISTERED ELECTOR, YOU MUST BE A CITIZEN OF COLORADO AND REGISTERED TO VOTE.

Do not sign this petition unless you have read or have had read to you the proposed initiative or referred measure or the summary in its entirety and understand its meaning.”

(b) A summary of the proposed initiative or ordinance that is the subject of a referendum petition shall be printed following the warning on each page of a petition section. The summary shall be true and impartial and shall not be an argument, or likely to create prejudice, either for or against the measure. The summary shall be prepared by the clerk.
(c) The full text of the proposed initiated measure or ordinance that is the subject of a referendum petition shall be printed following the summary on the first page or pages of the petition section that precede the signature page. Notwithstanding the requirement of paragraph (a) of this subsection (3), if the text of the proposed initiated measure or ordinance requires more than one page of a petition section, the warning and summary need not appear at the top of other than the initial text page.
(d) The signature pages shall consist of the warning and the summary, followed by ruled lines numbered consecutively for registered electors’ signatures. If a petition section contains multiple signature pages, all signature lines shall be numbered consecutively, from the first signature page through the last. The signature pages shall follow the page or pages on which the full text of the proposed initiated measure or ordinance that is the subject of the referendum petition is printed.
(e) (I) Following the signature pages of each petition section, there shall be attached a signed, notarized, and dated affidavit executed by the person who circulated the petition section, which shall include the following:
(A) The affiant’s printed name, the address at which the affiant resides, including the street name and number, the municipality, the county, and the date the affiant signed the affidavit;
(B) That the affiant has read and understands the laws governing the circulation of petition;
(C) That the affiant was eighteen years of age or older at the time the section of the petition was circulated and signed by the listed electors;
(D) That the affiant circulated the section of the petition;
(E) That each signature thereon was affixed in the affiant’s presence;
(F) That each signature thereon is the signature of the person whose name it purports to be;
(G) That, to the best of the affiant’s knowledge and belief, each of the persons signing the petition section was, at the time of signing, a registered elector; and
(H) That the affiant has not paid or will not in the future pay and that the affiant believes that no other person has paid or will pay, directly or indirectly, any money or other thing of value to any signer for the purpose of inducing or causing such signer to affix the signer’s signature to the petition.
(II) The clerk shall not accept for filing any section of a petition that does not have attached thereto the notarized affidavit required by subparagraph (I) of paragraph (e) of this subsection (3). Any disassembly of a section of the petition that has the effect of separating the affidavit from the signature page or pages shall render that section of the petition invalid and of no force and effect.
(III) Any signature added to a section of a petition after the affidavit has been executed shall be invalid.
(4) All sections of any petition shall be prenumbered serially.
(5) Any petition section that fails to conform to the requirements of this article or that is circulated in a manner other than that permitted by this article shall be invalid.
31-11-107 – Circulators – requirements.
The circulation of any petition section other than personally by a circulator is prohibited. No section of a petition for any initiative or referendum measure shall be circulated by any person who is not at least eighteen years of age at the time the section is circulated.
31-11-108 – Signatures.
Any initiative or referendum petition shall be signed only by registered electors who are eligible to vote on the measure. Each registered elector shall sign his or her own signature and shall print his or her name, the address at which he or she resides, including the street number and name, the city or town, the county, and the date of signing. Each registered elector signing a petition shall be encouraged by the circulator of the petition to sign the petition in ink. In the event a registered elector is physically disabled or is illiterate and wishes to sign the petition, the elector shall sign or make his or her mark in the space so provided. Any person, but not a circulator, may assist the disabled or illiterate elector in completing the remaining information required by this section. The person providing assistance shall sign his or her name and address and shall state that such assistance was given to the disabled or illiterate elector.
31-11-109 – Signature verification – statement of sufficiency.
(1) The clerk shall inspect timely filed initiative or referendum petitions and the attached affidavits, and may do so by examining the information on signature lines for patent defects, by comparing the information on signature lines against a list of registered electors provided by the county, or by other reasonable means.
(2) After examining the petition, the clerk shall issue a statement as to whether a sufficient number of valid signatures have been submitted. A copy of the statement shall be mailed to the persons designated as representing the petition proponents pursuant to section 31-11-106 (2).
(3) The statement of sufficiency or insufficiency shall be issued no later than thirty calendar days after the petition has been filed. If the clerk fails to issue a statement within thirty calendar days, the petition shall be deemed sufficient.
31-11-110 – Protest.
(1) Within forty days after an initiative or referendum petition is filed, a protest in writing under oath may be filed in the office of the clerk by any registered elector who resides in the municipality, setting forth specifically the grounds for such protest. The grounds for protest may include, but shall not be limited to, the failure of any portion of a petition or circulator affidavit to meet the requirements of this article. No signature may be challenged that is not identified in the protest by section and line number. The clerk shall forthwith mail a copy of such protest to the persons designated as representing the petition proponents pursuant to section 31-11-106 (2) and to the protester, together with a notice fixing a time for hearing such protest that is not less than five or more than ten days after such notice is mailed.
(2) The county clerk shall furnish a requesting protester with a list of the registered electors in the municipality and shall charge a fee to cover the cost of furnishing the list.
(3) Every hearing shall be held before the clerk with whom such protest is filed. The clerk shall serve as hearing officer unless some other person is designated by the legislative body as the hearing officer, and the testimony in every such hearing shall be under oath. The hearing officer shall have the power to issue subpoenas and compel the attendance of witnesses. The hearing shall be summary and not subject to delay and shall be concluded within sixty days after the petition is filed. No later than five days after the conclusion of the hearing, the hearing officer shall issue a written determination of whether the petition is sufficient or not sufficient. If the hearing officer determines that a petition is not sufficient, the officer shall identify those portions of the petition that are not sufficient and the reasons therefor. The result of the hearing shall be forthwith certified to the protester and to the persons designated as representing the petition proponents pursuant to section 31-11-106 (2). The determination as to petition sufficiency may be reviewed by the district court for the county in which such municipality or portion thereof is located upon application of the protester, the persons designated as representing the petition proponents pursuant to section 31-11-106 (2), or the municipality, but such review shall be had and determined forthwith.
31-11-111 – Initiatives, referenda, and referred measures – ballot titles.
(1) After an election has been ordered pursuant to section 31-11-104 or 31-11-105, the legislative body of the municipality or its designee shall promptly fix a ballot title for each initiative or referendum.
(2) The legislative body of any municipality may, without receipt of any petition, submit any proposed or adopted ordinance or resolution or any question to a vote of the registered electors of the municipality. The legislative body of the municipality or its designee shall fix a ballot title for the referred measure.
(3) In fixing the ballot title, the legislative body or its designee shall consider the public confusion that might be caused by misleading titles and shall, whenever practicable, avoid titles for which the general understanding of the effect of a “yes” or “no” vote would be unclear. The ballot title shall not conflict with those titles selected for any other measure that will appear on the municipal ballot in the same election. The ballot title shall correctly and fairly express the true intent and meaning of the measure.
(4) Any protest concerning a ballot title shall be conducted as provided by local charter, ordinance, or resolution.
31-11-112 – Petitions – not election materials – no bilingual requirement.
The general assembly hereby determines that initiative and referendum petitions are not election materials or information covered by the federal “Voting Rights Act of 1965”, and are therefore not required to be printed in any language other than English in order to be circulated in any municipality in Colorado.
31-11-113 – Receiving money to circulate petitions – filing.
The proponents of the petition shall file with the clerk a report disclosing the amount paid per signature and the total amount paid to each circulator. The filing shall be made at the same time the petition is filed with the clerk. Any payment made to circulators is an expenditure under article 45 of title 1, C.R.S.
31-11-114 – Unlawful acts – penalty.
(1) It is unlawful:
(a) For any person willfully and knowingly to circulate or cause to be circulated or sign or procure to be signed any petition bearing the name, device, or motto of any person, organization, association, league, or political party, or purporting in any way to be endorsed, approved, or submitted by any person, organization, association, league, or political party, without the written consent, approval, and authorization of the person, organization, association, league, or political party;
(b) For any person to sign any name other than his or her own name to any petition or knowingly to sign his or her name more than once for the same measure at one election;
(c) For any person knowingly to sign any petition relating to an initiative or referendum in a municipality who is not a registered elector of that municipality at the time of signing the petition;
(d) For any person to sign any affidavit as circulator without knowing or reasonably believing the statements made in the affidavit to be true;
(e) For any person to certify that an affidavit attached to a petition was subscribed or sworn to before him or her unless it was so subscribed and sworn to before him or her and unless the person so certifying is duly qualified under the laws of this state to administer an oath;
(f) For any officer or person to do willfully, or with another or others conspire, or agree, or confederate to do, any act that hinders, delays, or in any way interferes with the calling, holding, or conducting of any election permitted under the initiative and referendum powers reserved by the people in section 1 of article V of the state constitution or with the registering of electors therefor;
(g) For any officer to do willfully any act that shall confuse or tend to confuse the issues submitted or proposed to be submitted at any election or refuse to submit any petition in the form presented for submission at any election;
(h) For any officer or person to violate willfully any provision of this article.
(2) Any person, upon conviction of a violation of any provision of this section, shall be punished by a fine of not more than five hundred dollars, or by imprisonment for not more than one year in the county jail, or by both such fine and imprisonment.
31-11-115 – Tampering with initiative or referendum petition.
(1) Any person commits a class 2 misdemeanor who:
(a) Willfully destroys, defaces, mutilates, or suppresses any initiative or referendum petition;
(b) Willfully neglects to file or delays the delivery of the initiative or referendum petition;
(c) Conceals or removes any initiative or referendum petition from the possession of the person authorized by law to have custody of the petition;
(d) Adds, amends, alters, or in any way changes the information on the petition as provided by the elector; or
(e) Aids, counsels, procures, or assists any person in doing any of such acts.
(2) Any person convicted of committing such a misdemeanor shall be punished by a fine of not more than one thousand dollars, or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment.
(3) This section shall not preclude a circulator from striking a complete line on the petition if the circulator believes the line to be invalid.
31-11-116 – Enforcement.
(1) Any person may file with the district attorney an affidavit stating the name of any person who has violated any of the provisions of this article and stating the facts that constitute the alleged offense. Upon the filing of such affidavit, the district attorney shall forthwith investigate, and, if reasonable grounds appear therefor, the district attorney shall prosecute the same.
(2) The attorney general of the state shall have equal power with district attorneys to file information or complaints against any person for violating any provision of this article.
31-11-117 – Retention of petitions.
After a period of three years from the time of submission of the petitions to the clerk, if it is determined that the retention of the petitions is no longer necessary, the clerk may destroy the petitions.
31-11-118 – Powers of clerk and deputy.
(1) Except as otherwise provided in this article, the clerk shall render all interpretations and shall make all initial decisions as to controversies or other matters arising in the operation of this article.
(2) All powers and authority granted to the clerk by this article may be exercised by a deputy clerk in the absence of the clerk or in the event the clerk for any reason is unable to perform the duties of the clerk’s office.

The Basic Steps To Do An Initiative In Colorado
Statutes And Amendments – Direct Initiative Process

Basic Procedures: Proponents must submit the original text of the measure to the directors of the Legislative Council Staff and the Office of Legal Services for review and comment. Proponents must designate two people as those representing the proponents in all matters affecting the petition. Drafts are to be submitted in typewritten form and are to be written in plain, non-technical language, using words with common and everyday meaning understandable to the average reader.

Upon receiving the proposed measure, directors set a date for a public hearing no later than two weeks from the date the measure is filed. The director of the Legislative Council Staff provides proper notice of the date, time, and place for the meeting. Measures accepted as a legal filing are a matter of public record and are available for public distribution.

Comments on proposed initiated measures are prepared by the Legislative Council Staff and the Office of Legislative Legal Services for review during the public hearing. The comments typically contain a summary of the proposal followed by a series of questions concerning the wording, intent, and purpose of the proposal. The Legislative Council Staff and Legislative Legal Services directors may request the assistance of state agencies in preparing the comments. Agencies are required to assist when so requested. Proponents receive the comments prior to the meeting, but the comments are not disclosed to the public before the hearing, except with permission of the proponents.

The public hearing conducted by the Legislative Council Staff and Legislative Legal Services is informal in nature. The purpose of the meeting is to give the public notice that a proposal on a given topic is under consideration and to review the purposes and wording with the proponents so that the proposal states what the proponents want it to state. The comments are intended to help proponents clarify their proposal, but proponents are not required to accept the suggestions made in the comments. The meeting is open to the public and, while persons who may oppose a measure are welcome to attend, no testimony or comments are accepted from anyone other than the proponents. The meeting is tape recorded for the public record.

Following the public hearing, proponents may submit the measure to the Secretary of State who chairs the Ballot Title Setting Board. The ballot title, submission clause, and summary are established by a board consisting of the Secretary of State, the Attorney General, and the director of the Office of Legislative Legal Services.

The Ballot Title Setting Board usually completes its work on the ballot title, submission clause, and summary at its first meeting. If the board is unable to complete action on all of its agenda, motions for rehearing may be continued until the board’s next meeting.

If a proponent or any registered elector claims that a ballot title, submission clause, or summary is unfair or does not fairly express the meaning of a proposal, that person may request a rehearing by the Ballot Title Setting Board. Such request must be made within seven days after the title and summary are set.

Such rehearing will be held at the next regularly scheduled meeting of the board. If the board is unable to complete action on the request for rehearing, consideration of the request may be continued until the next available day, except that if the request was to be heard on the last meeting date in May, it must be heard within 48 hours after the motion is filed.

An appeal for change in the ballot title, submission clause, and summary may be made to the Colorado Supreme Court, pursuant to Section 1-40-107 (2) and (5), C.R.S.

Once the ballot title, submission clause, and summary are established, petitions may then be circulated throughout the state to obtain the required number of signatures.

Date Initiative language can be submitted to state for November 2002: Can be submitted anytime after the first Wednesday in December of 2000.

Signatures are tied to vote of which office: Secretary of State

Next Secretary of State election: 2002

Votes cast for Secretary of State in last election: 1,611,420 (Note: Although Secretary of States are normally elected every four years, a vacancy was filled in 2000.)

Net number of signatures required: 5% of votes cast for Secretary of State in last election, for both statutes and amendments. (80,571 signatures)

Distribution Requirement: None

Circulation period: 6 months

Do circulators have to be residents: No

Date when signatures are due for certification: The petition must be filed within 6 months from when the final language is set by the Title Board and no later than 3 months before a statewide election. (August 5, 2002 for the November 2002 ballot.)

Signature verification process: The Secretary of State verifies signatures by a random sample procedure. Not less than five percent of the signatures, and in no event fewer than 4,000 signatures, are to be verified. If the sample indicates that the number of valid signatures is 90 percent or less of the required total, the petition is deemed to have insufficient signatures. If the valid signatures are found to be 110 percent or more of number required, the petition is deemed sufficient. However, if the number of valid signatures is found to be over 90 percent but less than 110 percent of the required number, the law requires that each signature on the petition be verified.

Single-subject restriction: Yes

Legislative tampering: The Legislature can repeal and amend an initiative statute passed by the voters.

General Comments: If the Ballot Title Setting Board finds that more than one subject is contained in a proposal, the proponents are permitted to change the measure. If the changes by the proponents involve only the removal of language to achieve a single subject, another review and comment hearing with the Office of Legislative Legal Services and the Legislative Council Staff may not be required. However, if the board finds that revisions are so substantial that another hearing is in the public interest, another review and comment hearing may be required.

If a proposal is revised and resubmitted to the board, a ballot title can be set or the title board can conclude that the proposal still contains more than one subject. In the event of a dispute over the single subject rule, the board can set the title without including reference to the provisions it thought was in violation of the rule. The constitution provides that, if there is any part of a proposal not clearly expressed in the ballot title, that part is to be considered void.

This paper is a chapter from The Initiative & Referendum Almanac. You can purchase the book here.

By Dennis Polhill and Kim Garrett(i)

One of the first instances of the discussion of women’s suffrage was in 1776 when Abigail Adams wrote to her husband, John Adams, asking him to include women in the Declaration of Independences’ wording. John writes back with humor, stating that he understands Abigail’s views but to Abigail’s dismay, the document states, “all men are created equal.” Upset with this wording, Abigail confides in many colleagues that this lack of including women in the Declaration might be something that needed to be taken directly to the people. However, it wasn’t until the mid 1800s that women’s suffrage became a dominant issue again.

Wyoming was the pioneer equal suffrage state when its first legislative council, after its organization as a territory in 1869, passed a bill providing that women should have the same rights as men to vote and hold office. When Wyoming was granted statehood in 1890, equal suffrage was part of its constitution – before any other state had given women the right to vote. Utah followed in 1896. From 1906 to 1920, thirteen states voted on women suffrage ballot measures, both initiatives and legislative referendum; Oregon (1906 by initiative/failed), Oregon (1908 by initiative/failed), Oklahoma and Oregon (1910 by initiative/failed), California (1911 by legislative referendum/passed), Arizona and Oregon (1912 by initiative/passed), Kansas (1912 by legislative referendum/passed), Nevada and Montana (1913 by legislative referendum/passed), Ohio, Nebraska, Missouri (1914 by initiative/failed), New York (1917 by legislative referendum/passed), Michigan, South Dakota and Oklahoma (1918 by legislative referendum/passed) (ii).

In both Arizona and Oregon the battle for equal suffrage was long and strong. For nearly fifteen years Arizona women worked without success to get their territorial legislature to confer full suffrage upon them. Nor were they successful in their efforts to get a woman suffrage clause included in the constitution when Arizona was granted statehood. A bill creating a women’s suffrage amendment to the constitution was introduced in the first legislature of the new state but lost by one vote in the Senate – although it passed in the House. The women then turned to the people, and in less than two months time succeeded in collecting the signatures necessary to place an initiative on the ballot granting women suffrage. The measure went to the voters in 1912 and won by 7,240 votes.

In Oregon, equal suffrage initiatives lost in 1906 and 1908. In 1910 suffragists tried a different approach: an initiative giving only female taxpayers the right to vote, a compromise that was rejected at the ballot box by a three to one margin. Finally, in 1912, suffragists led by Abigail Scott Duniway won their long struggle. An initiative they placed on the ballot for women’s suffrage passed – 61,265 in favor to 57,104 against.

One of the reasons the battle for equal suffrage was so difficult was the link between the women’s suffrage movement and the prohibition movement. The Women’s Crusade of 1873 and the organization of the Women’s Christian Temperance Union in 1874 (WCTU), which pioneered the movement for equal suffrage, strongly advocated prohibition. The Ohio WCTU, for example, circulated a speech by Anna Howard Shaw entitled “Influence versus Power,” which defined women’s suffrage as an important weapon in the fight for prohibition. Brewers and distillers, believing that all suffragists favored prohibition, opposed women’s suffrage vehemently and in 1911 created the National Association Opposed to Woman Suffrage (NAOWS). NAOWS was instrumental in delaying Congress from passing a women’s suffrage amendment (iii).

In 1912 Theodore Roosevelt’s Progressive Party adopted a women’s suffrage plank – a major breakthrough. In the summer of 1913, suffragists presented U.S. Senators with 200,000 signatures in support of a constitutional amendment establishing women’s suffrage – but they refused to act. They also began to speak out through hunger strikes, picketing the White House, and other forms of civil disobedience.

On March 2, 1914, U.S. Senator John Shafroth of Colorado introduced a constitutional amendment that would grant all states I&R to achieve suffrage. The “Shafroth Amendment” would have advanced both I&R and the women’s suffrage issue by empowering the people to decide within their own state. Although the amendment failed in Congress, it helped the initiative and referendum process gain public credibility as a method of dealing with these types of issues.

In 1914 and 1915, both houses of Congress again rejected women’s suffrage amendments. Finally, in 1918, President Woodrow Wilson changed his position and gave his support to a women’s suffrage amendment. His support helped get the amendment through the House, but not the Senate. Then in 1919, President Wilson once again urged passage of a women’s suffrage amendment and fifteen days after the House passed the amendment, the Senate passed it as well. The 19th Amendment became part of the U.S. Constitution in 1920 – just 14 months after Congress sent it to the states for ratification.

Carrie Chapman Catt summarized the women’s suffrage effort when she said, “[t]o get the word ‘male’ in effect out of the Constitution cost the women of the country fifty-two years of pauseless campaign… During that time they were forced to conduct fifty-six [initiative] referenda campaigns to male voters; 480 campaigns to get legislatures to submit suffrage amendments to voters; 47 campaigns to get state constitutional conventions to write woman suffrage into state constitutions; 277 campaigns to get state party conventions to include woman suffrage planks in party platforms, 30 campaigns to get presidential party conventions to adopt women’s suffrage planks into party platforms, and 19 campaigns with 19 successive Congresses.”

As Catt points out, the relationship between women’s suffrage and I&R is not trivial. When momentum began to lag, I&R appeared on the horizon to instill the suffragists with new hope, inspiration, and energy. However, even though most of the women’s suffrage initiatives were defeated at the ballot box, their presence raised the awareness of the issue and helped lead the way to the 19th Amendment.

Women’s Suffrage Initiatives (I) and Legislative Referendum (LR)

State Year Description Type Pass/Fail
OR 1906 To extend suffrage to women. I Failed
OR 1908 To extend suffrage to women. I Failed
OK 1910 To authorize women to vote under the same circumstances/conditions as men. I Failed
OR 1910 To extend suffrage to female taxpayers. I Failed
CA 1911 To extend suffrage to women. LR Passed
AZ 1912 To extend suffrage to women. I Passed
KS 1912 To extend suffrage to women. LR Passed
OR 1912 To extend suffrage to women. I Passed
MT 1913 To extend suffrage to women. LR Passed
NV 1913 To extend suffrage to women. LR Passed
OH 1914 To extend suffrage to women. I Failed
NE 1914 To extend suffrage to women. I Failed
MO 1914 To provide that females shall have the same right to vote at all elections within the state as males. I Failed
NY 1917 To extend suffrage to women. LR Passed
MI 1918 To extend suffrage to women. LR Passed
OK 1918 To extend suffrage to women. LR Passed
SD 1918 To extend suffrage to women. LR Passed

i. Dennis Polhill is the Chairman of the Initiative & Referendum Institute. Kim Garrett is a research assistant for the Institute and a student at the University of Denver.
ii. McDonagh, Eileen L. and H. Douglas Price (1984). “Woman Suffrage in the Progressive Era: Patterns of Opposition and Support in Referenda Voting, 1910-1920,” in The American Political Science Review 79 (3).
iii. McDonagh, Eileen L. and H. Douglas Price (1984). “Woman Suffrage in the Progressive Era: Patterns of Opposition and Support in Referenda Voting, 1910-1920,” in The American Political Science Review 79 (3), and Schmidt, David D. (1989). Citizen Lawmakers: The Ballot Initiative Revolution. Philadelphia, PA: Temple University Press; Connors, Arthur (1917). “ Direct Legislation in 1916,” in The American Political Science Review 11 (1).

This paper is a chapter from The Initiative & Referendum Almanac. You can purchase the book here.

By Dennis Polhill

National referendums are a regular event among the world’s democracies. With four national elections per year Switzerland has held approximately half of the 800 national referendums in world history.

One application of national referendums has been in exercising the “self determination” of a people. A referendum unified fragmented Italian states into a nation. Norway separated from Sweden in 1905 via national referendum. Only “five major democracies have never had a national referendum: India, Israel, Japan, the Netherlands, and the United States.” In recent years Israel and the Netherlands have seriously contemplated the idea of a national referendum to advance intractable issues.

The demise of the Soviet Union was a byproduct of the largest national referendum in world history; the Soviet Union’s first and last referendum. To advance his reforms Mikhail Gorbachev sought popular support by proposing the March 17, 1991 All-Union referendum. The All-Union Referendum would reaffirm the Union Treaty of 1922 that created the Soviet Union. The referendum opened a floodgate. The 15 Republics did not conform. Some redrafted the language; several added questions to the ballot; others declared their independence and still others boycotted the event. Although the All-Union Referendum passed overwhelmingly, periphery events turned out to be more relevant than the specific outcome. The Soviet Republics had discovered a way to articulate their frustration with central control and busily went about acting as independent states.

But has the national referendum process been abused?

The prospect of manipulation of a national referendum is real. Gorbachev directed the military to manage the election in Republics that boycotted the All-Union Referendum with the result that voter turn out approximated the local ethnic Russian population.

Hitler used national referendums to withdraw Germany from the League of Nations in 1933 and to consolidate his powers in 1934. The ability of the Nazi propaganda machine to insure the desired result is well known. This problem with referred measures was well expressed when Benito Mussolini said, “Give me the right to nominate and you can vote for whomever you please.” The control of the language and what questions appear on ballots is not a minor detail. A recent example is the election held in April 2002 in Pakistan. President Musharraf clearly manipulated the wording of the referendum in order to ensure he was reelected to another five year term as President of Pakistan.

So what about national I&R in the United States?

If I&R has been a means for dealing with the conflicts at the state level, why not resolve similar national conflicts with national I&R? Lincoln is said to have proposed a national vote to reconcile slavery. There have been 3 major efforts in the U.S. for national I&R: the Progressive movement (prior to 1920), the anti-war movement (during both World Wars I and II), and the environmental movement (during the 1970s).

An early advocate for national I&R was U.S. Senator and former Colorado Governor John Shafroth. The Shafroth Amendment was proposed as an amendment to the U.S. Constitution in 1914. It would have given the people of every state I&R for determining women’s suffrage. When 8% of voters signed a petition, the issue would be determined by a majority vote at the next state election. Mounting pressure eventually forced Congress to deal with the issue. Had it become law, the Shafroth Amendment might very well have expedited resolution of women’s suffrage. Perhaps more importantly, it would have set a precedent as a means of addressing other difficult national issues.

When the U.S. entered World War I, isolationists and pacifists called for a national referendum, arguing that only the people should decide whether to go to war. Advocates proposed an Amendment to the U.S. Constitution (also called the Peace Referendum) that would have required a nationwide popular vote to go to war, unless the U.S. was attacked or invaded. A similar movement emerged during World War II but was never approved by Congress.

After World War II, the use of the statewide initiative process declined and was largely forgotten by many activists until it was rediscovered in the 1970s by the environmental movement. Coincident with rediscovery of state I&R, was a renewed interest in national I&R. Senator Abourezk (D-SD) introduced the National Voter Initiative Amendment in 1977.

The NVIA would have taken an issue to nationwide vote, when 3% of voters in at least 10 states signed a petition. A majority of voters nationwide would decide the issue. The difference between the Shafroth and the Abourezk approaches merit elaboration. Shafroth empowered the people of the states, acknowledging that the Federal government is a collection of state governments. Abourezk did not account for the division of powers between Federal and State governments itemized in the U.S. Constitution or provide a means of addressing state issues. Shafroth did not provide a means for directly resolving national concerns. A well-designed system of national I&R should do both: work within the bounds of the constitution and provide a means for addressing issues reserved to the respective Federal and State levels.

National I&R Proposals

There have been two distinct approaches to obtaining a national I&R process in the United States. One is working through the states and the other is by getting Congress to pass an amendment establishing the initiative process.

In the states, several organizations, like USPIRG, have worked hard to generate support for a national I&R process. In addition to the “PIRGs”, another organization, “Philadelphia Two” has been working to establish a national initiative process. Former U.S. Senator Mike Gravel heads the group. Though their approach is somewhat controversial (basically to set up an “electoral trust” that is not accountable to the government), they are working hard to build support for a national initiative process.

At the Congressional level, between 1895 and 1943, 108 proposals to amend the U.S. Constitution by adding national I&R were submitted. Seven would have created a general I&R, that would have allowed for consideration of any issue. The others created I&R for specific issues only or that had issue-specific prohibitions. For example, Abourezk would not permit the declaring of war, calling up troops, or amending the constitution and would permit statutory modifications by Congress with a two-thirds majority or simple majority after two years. Implementation of national I&R is more complicated in the U.S. than in other nations due to the unique Constitutional division of responsibilities between the Federal and State governments. In most countries, governments are centralized to either a greater or lesser extent. Other variations of national I&R that have been proposed in the U.S. include:

  • The first proposal for national I&R was in 1895 by Populist Party U.S. Senator William Peffer from Kansas. It provided for a national vote on an issue when 20% of voters nationwide or 20% of state legislatures requested it.
  • In 1907 U.S. Representative Elmer Lincoln Fulton from Oklahoma suggested that 8% of the voters in each of 15 states could put either a constitutional amendment or statute proposal to a national vote or that 5% of the voters in each of 15 states or their state legislatures could challenge a statute passed by Congress.
  • In 1911 Senator Bristow from Kansas proposed that the Initiative be used to reign in the court. Any law held unconstitutional by the Supreme Court would go to a vote of the people. This was the first proposal for using I&R as the method by which to reconcile conflicts between the equal branches of the Federal government.
  • Socialist Party U.S. Representative Victor Berger of Wisconsin introduced the most radical proposal ever. It would have abolished the Presidency, the Senate and the Supreme Court. Five percent of the voters in three-fourths of the state could propose a law or challenge a law passed by Congress.
  • U.S. Senator Bob La Follette from Wisconsin in 1916 proposed a non-binding national advisory referendum that would be held when 1% of the voters in 25 states petitioned.
  • The National approach would require some percentage (usually in the range of 3%) of voters nationwide to sign a petition. Because elections are managed by the states and there are no national voter rolls or other election systems, leaving states out of the process would require changes in election management.
  • Nullification advocates in the 1980s and 1990s suggested that Federal statutes should go to a nationwide vote when 10% of the voters in 1/3 of the states sign a petition challenging it. Nullification proposals were in reaction to “unfunded mandates” and directives imposed upon the states by Congress. A nullification mechanism would effectively be a national application of the referendum petition or challenge petition.

The State Approach to National I&R

The question of national I&R in the U.S. is not whether it will be. Rather, the question is when it will be and what form it will have. When the Confederate States wrote their constitution, they substantially replicated the constitution they had lived under for over 70 years. Perhaps the most substantial variation cured a significant structural flaw in the U.S. Constitution: how Amendments are proposed for ratification. Recognizing that a constitution is the delegation of consent to govern and, therefore, a limitation on government, and acknowledging Congress’ inherent conflict of interest, the authority of Congress to draft proposed amendments was revoked. A proposed amendment would go to ratification when 25% of the states passed resolutions supporting the same proposal. This, in fact, is what the Founders had intended with Article V; but their intent was subsequently subverted by Congress.

The “State Approach” may be the best form for National I&R. The “State Approach” would permit a number of states (25%) to agree either by state initiative petition and vote or by state legislature resolution, that a question should be addressed nationally. When a number of states concur, the Federal statute (simple majority) or constitution (3/4 majority) is changed. Obviously, over-reaching Federal statutes could be stricken by the same means.

The “State Approach” acknowledges the respective constitutional roles of the State and Federal governments. It provides a means for addressing both state and national issues. It can cure both actions of omission and acts of commission by Congress and by individual state legislatures. It utilizes the existing election management systems of the states. It answers the problem of Congressional conflict of interest. It can deal with both Federal statutory or constitutional problems. It acknowledges the sovereignty of the people at every level. It might be a viable means for resolving conflicts between the equal branches of the Federal government or deadlocked Federal legislation. The fear of majoritarian abuse of I&R is reduced. National issues are resolved gradually via ongoing public debate and incremental approval by the states. A critical part of the Constitution is restored to the functionality intended by the Founders.

The “State Approach” also offers a practical means of implementation and can be achieved gradually by increasing the number of states with I&R until critical mass is reached. Critical mass is when the numbers of states with I&R is sufficient to press the issue nationally.

Summary

National I&R in the U.S. would offer a mechanism to address national issues that partisan politics or Congressional inherent conflict of interest prohibits a solution. Several attempts have been made in Congress and in the states – but to no avail. However, as citizens enlarge their participation in their government, it appears inevitable that the U.S. will find a way to exercise this fundamental right in the near future.

© 2007 Initiative & Referendum Institute

USC School of Law

Los Angeles CA 90089-0071

Identifying the Obstacles to Colorado’s Initiative and Referendum Process (Issue Paper)

Issue Paper

By Dennis Polhill

1. Context of the Initiative Process

A. Introduction
Initiative and Referendum (I&R) is important to representative democracy as a check and balance, a means of augmenting government accountability. The Initiative is essential for dealing with issues that legislators cannot or will not address. Such issues typically include conflict-of-interest issues (such as proposed limits on legislators’ powers) and third-rail issues (those that offend powerful interest groups).

This issue paper is a sequel to the Issue Paper, “Are Coloradans Fit to Make Their Own Laws?”1 published in 1996 by the Independence Institute. It has been widely read and referenced. It was offered in testimony when Texas considered I&R, was republished by the Initiative and Referendum Institute, has been linked to and posted by numerous Web sites, and was even translated into Russian.2

Public interest in and support for the Initiative process remains high. But politicians see the process as infringing on their monopoly power to legislate. Some politicians pretend to support I&R to win election, but quickly forget their campaign promises and oaths to uphold the Constitution.

As with all rights, the right to petition is a fundamental right that is not granted by politicians or by governments. As a matter of fact, in delegating authority to legislate to the legislature, the sovereign citizens of Colorado limited their delegation by reserving “to themselves the power to propose laws and amendments.”3 Thus, the initiative is more than a fundamental right; it is a reserved power. The legislature has no authority to interfere with, throttle or adversely regulate the process other than reasonable regulation to insure its fair and nonfraudulent exercise.

Entire Paper: Protecting the People’s Voice [Independence Institute Version] (PDF)

Entire Paper: Initiative and Referendum in Colorado [Initiative and Referendum Institute version] (PDF)

A Common Sense Primer on the Initiative Process

By Dennis Polhil

Introduction

On Election Day, Nov. 5, Colorado citizens will exercise their right to vote not only in electing candidates but also in deciding upon proposed laws, both statutory and constitutional. Some of these proposals will have been initiated by signature petitions, while others were referred from the General Assembly for final action by the voters.

The “initiative and referendum” feature of self-government in Colorado flows from the bold declaration in Article V, Section 1, of the State Constitution: “The people reserve to themselves the power to propose laws and amendments to the constitution and to enact or reject the same at the polls independent of the general assembly and also reserve power at their own option to approve or reject at the polls any act or item, section, or part of any act of the general assembly.” It is a provision not to be taken for granted, since more than half the states (26) do not recognize it in their constitutions, nor does it occur in the U.S. Constitution. It is prized by some Coloradans as an important bulwark of liberty, but criticized by others as a nuisance or flaw in the system.

Initiative and Referendum (I & R) is briskly debated in every election year as the ballot fills up with questions for decision and the airwaves buzz with ads pro and con. The debate becomes especially hot in years when the ballot process is used to revise itself, as was the case in 1994 with enactment of the single-subject rule as is recurring in 1996 with Referred Measure A, the 60-percent proposal, and Amendment 13, the petition rights measure. The present paper will not address the merits of those specific proposals, but will provide a general primer on petitions, ballot questions, and I & R as a time-honored feature of the U.S. and Colorado political scene in this century.

While this boisterous manifestation of popular sovereignty is no panacea, it cannot be waved off as a bogeyman in the way sometimes attempted by those who would foreclose all argument with the simple mantra, “representative government.” Our ancestors who pioneered representative government were the same ones who cherished petition rights from the time of the Magna Carta and who acknowledged them in the First Amendment right to petition. The petition right and representative government can more properly be seen as complementary, not antithetical, as the succeeding discussion will show.

Entire Paper: Are Coloradans Fit to Make Their Own Laws [Independence Institute Version] (PDF)

Entire Paper: Are Coloradans Fit to Make Their Own Laws [Initiative and Referendum Version] (PDF)

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.

Some Facts about the Colorado Constitution

Compiled for Colorado Constitution Panel

By Dennis Polhill, March 4, 2008

DPolhill@aol.com


Colorado’s Constitution is average.

  • It contains 45,679 words.

  • The longest is Alabama at 310,296 words.

  • The shortest is Vermont at 8,295 words.

  • The most amended is Alabama with 711 amendments.

  • The least amended is Illinois with 11 amendments.


Between 1912 and 2005 (93 years) the citizens of Colorado have considered 254 proposed amendments.

  • 125 were referred by the General Assembly.

  • 129 were initiated by citizen petition.


111 of the 254 (43.7%) proposals were approved by voters.

  • 69 of 125 (55.2%) of those referred by the GA.

  • 42 of 129 (32.6%) of those by citizen petition.


Nearly two-thirds of the amendments to the Constitution originate in the GA.

  • 69 of 111 (62.2%) were referred by the GA.

  • 42 of 111 (37.8%) originated by citizen petition.


Some of the 42 could have been statutory, but most of the 42 had to be Constitutional. Counting entails subjectivity. This author estimates that one quarter could have been statutory. Thus, the target universe is small (10 in 93 years).


The incentive for issue proponents to go statutory is in place.

  • 32.6% of initiated amendments pass.

  • 41.3% of initiated statutes pass.

  • The election advantage of statutes over amendments is 8.7 points.

  • That is a 27% increase in proponents’ prospect of prevailing.


Amendment 2002-27 (Campaign Finance Restrictions by Common Cause) added 5,685 words (over 10%) to the Colorado Constitution. Amendment 27 was the rebirth of statutory initiative 1996-15 after it had been unilaterally modified by the GA.


The disincentives for issue proponents to go the statutory route (as illustrated by 2002-27) have yet to be addressed.


http://www.i2i.org/articles/IP_7_2006_b.pdf

The Initiative and Referendum AlmanacDennis Polhill contributed to The Battle over Citizen Lawmaking: A Collection of Essays, authoring Chapter One: Democracy’s Journey (original version of Democracy’s Journey prior to editing).

From the Publisher:

There is little doubt that in recent years the initiative process has become one of the most important mechanisms for altering and influencing public policy at every level of government. In the last two years alone, utilizing the initiative process, citizens were heard on affirmative action, educational reform, term limits, tax reform, campaign finance reform, animal protection, drug policy reform, and the environment.

However, the initiative process has fallen prey to its own success. Lawmakers who have been most affected by this citizen’s tool have struck back by imposing new regulations on the process — regulations that serve no purpose but to deprive the citizens of the only avenue available to them to reign in unresponsive government.

These regulations have generated many questions that have so far remained unanswered or have been discussed only in specialist journals. There are legal questions about signature gathering and limits on campaign spending, political questions about implementing the relevant statutes, and philosophical questions about equality and freedom of expression. The Battle Over Citizen Lawmaking discusses the evolution of the initiative and referendum process, the need for the process, how it has been utilized, the impetus for new regulations, the major regulations that have been imposed, the role the courts have played in regulating the initiative and referendum process, what role money plays, and how the process has been regulated in other countries. This book comprehensively addresses these issues from the viewpoint of leading scholars, opinion leaders, journalists, elected officials, activists, and attorneys.

“Dane Waters has done a commendable job in bringing a focus to an edited book project that provides a new perspective on the growing literature on direct democracy. The emphasis on a legal perspective may even help bring the topic to greater attention in classes on law and politics.”
– The Journal of Politics, February 2002

This paper is a chapter from The Battle Over Citizen Lawmaking. You can purchase the book here. Also see the original version of Democracy’s Journey prior to editing.

By Dennis Polhill

Many historians will argue, and I will agree, that Democracy has its roots in Greek and Roman history. However, for the sake of time and space, I have chosen to begin the discussion of “Democracy’s journey” in the period of English history that immediately preceded the founding of America. This is relevant in my opinion because it is the undemocratic underpinnings of English governance during this period of time that lead to the push for freedom in America and eventually the adoption of initiative and referendum.

Historical Backdrop
The dominant form of government throughout all of human existence has been Kings. Sometimes called Caesar, Czar, Pharaoh, Caliph, Emperor, Kaiser, or Chief, the system was the same. One man determined all aspects of life for all of the people. Because “the King was the law” fairness and consistency were no more than occasionally dreamt ideals. Individual rights existed only to the extent that the King granted them. Because Kings were granted their power to rule from God, the King’s eldest son typically became the next King.

As society grew larger, it was increasingly difficult for Kings to oversee an enlarging geography. As a result the system of Feudalism, using lesser Kings called barons, earls, and lords evolved. To administer the increasing number of items requiring the attention of the King, the corps of advisors in service to the King grew larger, more bureaucratic and more corrupt. Together the King, the barons, earls, lords, and their advisors, made up society’s ruling class, called the aristocracy. Slavery was common and non-slaves were not much better off. The role of commoners or serfs in this caste system was to work and to pay tribute.

Island Feudalism Leads to Laws
England was somewhat insulated from the more frequent Feudalistic conflicts of mainland Europe. Thus, internal domestic concerns reached
center stage sooner. The natural tension between the King and his barons, earls and lords came to a head in 1215. A collection of barons had mutinied, defeating the King’s army. The Magna Carta was then drafted and defined Feudalistic Rights in 63 written articles. The single revolutionary notion achieved by the Magna Carta was that there should be limitations upon the absolute power of the King. The Magna Carta was a necessary step, but more time would be needed to invent democracy.

The Magna Carta did more to help the barons than the commoners. It reorganized the judicial system; it abolished tax assessments without con-sent; it standardized penalties for felonies; and trials were to be conduct-ed according to strict rules of procedure. Although the Pope voided the Magna Carta, it was reissued in 1217. In 1258, again over taxation, the barons revolted, forcing the Baronial Council to become permanent. The permanent Baronial Council was the first vestige of the House of Lords of Parliament. The Magna Carta was modified and confirmed by Parliament in 1297.

Conflict over the divine right of Kings versus limitations on his powers continued for centuries. In the 17th century, religious fragmentation and persecution, and the lack of individual liberties, fueled internal turmoil and emigration to the New World. Royal abuses had become so extreme that in 1628 Parliament passed the Petition of Rights. The Petition enumerated abuses and asked that they cease. The King responded by forcing Parliament to adjourn and imprisoning parliamentary leaders. An eleven years religious war against the Scots forced the King to convene Parliament to raise taxes. Unfriendly to the idea, Parliament was immediately adjourned and a new Parliament convened in 1640. But the new Parliament was even less friendly to the King and quickly arrested and executed one of the King’s closest advisors for treason, emphasizing the view that the King and his advisors were not above the law.

Soon after, a national referendum was proposed on the abolition of the monarchy and the House of Lords. The House of Commons was created which would be elected by universal male suffrage but limited by a bill of rights. However, the King refused to cooperate and was convicted of violating his coronation oath by attacking the people’s liberties, and was publicly beheaded in 1649. Parliament took unilateral control of government under the dictatorial leadership of Oliver Cromwell. The state-preferred religion changed, but religious persecution continued. Parliament was purged and Cromwell cruelly suppressed the Irish and Scots. Soon, the Commonwealth began to crumble. Upon Cromwell’s death, his son proved too weak to maintain control and so the son of the beheaded King was asked to return in 1660 and the Monarchy was restored.

John Locke
Events during this period influenced the thinking of John Locke, arguably the foremost political thinker of all times. Locke was born in 1632 and was educated at Oxford University. After teaching briefly, he became a physician. Uncomfortable with the restoration of the monarchy, Locke went to France in 1675. He returned in 1679 only to discover religious persecution as rampant as ever, and returned to the Continent until 1689. He was a philosophical empiricalist emphasizing the importance of experience and experimentation in the pursuit of knowledge. His two most important writings, Essay Concerning Human Understanding and Two Treatises o f Government were written in 1690. Locke attacked the theory of divine right of Kings and argued that sovereignty resided with the people, not the state. The state was limited by civil and “natural” law. It was government’s duty to protect natural rights, such as life, liberty, property, and religious freedom. He advocated checks and balances via three branches of government and separation of church and state. Locke held that revolution was not only a natural right, but also an obligation.

The contest for supremacy between the King and Parliament continued after Cromwell’s death. Finally the divine right of Kings ended with the Glorious Revolution in 1688. In a Parliamentary vote, the Crown was taken from James II and offered to William and Mary conditioned upon a written Declaration of Rights, which enumerated rights in similar fashion to what was to become the Bill of Rights in the U.S. Constitution.

Evolution of Sovereignty
During this period, John Locke introduced the next revolutionary notion: that the people were sovereign, not the King. The King-by-proxy government of the American colonies, proved both ineffective and largely irrelevant to the increasingly self-reliant colonists.

Locke’s ideas soon took hold in the American colonies. Thomas Jefferson, a reader of Locke, based many of his beliefs on Locke’s theories, which can easily be seen in his writings. A perfect example is Jefferson’s belief that “[t]he people.. . are the only sure reliance for the preservation of our liberty.” It’s that principal, that one simple statement, that best summarizes not only Jefferson’s and Locke’s beliefs, but also the beliefs that America was founded upon.

The Evolution of Initiative and Referendum in the United States
It wasn’t long before the American colonies had tired of the undemocratic governance by the Crown and soon gained their independence. Then came the tough job of designing a system of government that would recognize the sovereignty of the people while creating a strong government that would insure the stability of a newly formed country. Even though many historians believe initiative and referendum was a subject of discussion, it was left out of the original constitution- as was women’s suffrage and the abolishment of slavery.

However, Jefferson was a strong and vocal advocate of the referendum process, which in his view recognized the people to be the sovereign. Where-as the King of England spoke of his power to govern being derived from God, Jefferson knew that those chosen to represent the citizenry as envisioned in a republican form of government were only empowered by the people.

James Madison, as did Jefferson, knew too well the possibility that in a republic, those chosen to rule can and would on occasion become consumed with their power and take actions not consistent with the Constitution- actions that represented their self-interest and not the interest of the people. For this reason, a series of checks-and-balances were placed in the U.S. Constitution in order to right the errors caused when elected representatives chose to rule unconstitutionally or in their own self-interest. Not only did the Founding Fathers create these checks-and-balances by one branch of government over the next, they created a provision in Article V of the Constitution that allowed the people the right to make change and/or restore our Constitution absent action by the Government. Unfortunately this process still relied on some form of action by those in power and therefore can be argued as being unusable by the citizenry since it has never been utilized in over 200 years.

The Founding Fathers at the state level created republican governments on a smaller scale that mirrored that of the Federal Government. In these constitutions a series of checks-and-balances were created to take into account the possible abuse of power by elected representatives and to protect the people from an out of control government- when and if that were to happen. But what the citizens began to realize in the late 1800s was that no matter what checks-and-balances existed, the people had no direct ability to reign in an out-of-touch government or government paralyzed by inaction.

Then came the Populist Party of the 1890s. Its members had become outraged that moneyed special interest groups controlled government, and that the people had no ability to break this control. They soon began to pro-pose a comprehensive platform of political reforms. They advocated women’s suffrage, secret ballots, direct election of U.S. Senators, primary elections and initiative and referendum. Difficult as it would be to envision modern political systems without these reforms, they were considered quite extreme changes in the 1890s.

Perhaps the most revolutionary Populist reform was initiative and popular referendum. These forms of initiative and referendum, as well as the already established legislative referendum- which Jefferson championed in the late 1700s- acknowledged that the authority to legislate and govern was delegated by the people and reaffirmed that the people were the only true sovereign- as Jefferson and Locke had envisioned. They right-fully believed that government without the consent of the governed was tyranny and because authority, but not responsibility, can be delegated, a mechanism to un-delegate, when appropriate, was a proper check on the process of legislating.

It should be noted and emphasized that the move to establish initiative and referendum was not a movement to change our system of government or abolish representative government- but to enhance it. Our Founding Fathers at the state and federal levels created wonderful documents, but they were documents based on compromise. They realized that they would need to be changed which is why they created a mechanism to alter them when necessary. The system of checks and balances were created as a theoretical system based on how to check the power of one branch of government with another- but it was an unproven system. As time progressed, the citizens discovered that this theoretical system of checks and balances at the state and federal level worked- but not good enough- for their were times when elected officials chose not to act in the people’s best interest. For this reason, the Populists/Progressives strove to strengthen the system of checks and balances on government at the state level and advocated the initiative and referendum process. Additionally it must be remembered that we have two tiers of Founding Fathers in this country- those at the federal level and those at the state level. The Founding Fathers of Oklahoma and Alaska, for example, chose to put initiative and referendum in their states’ original constitutions. It would be wrong in my opinion to pass judgment that the Founding Fathers at the state level were in some way inferior to our Founding Fathers at the federal level.

In 1897, Nebraska became the first state to allow cities to place initiative and referendum in their charters. One year later, the Populists adopt-ed methods from the 1848 Swiss Constitution and successfully amended them into the South Dakota Constitution. On November 5, 1898, South Dakota became the first state to adopt statewide initiative and popular referendum. Oregon followed in 1902 when Oregon voters approved initiative and popular referendum by an 11-to-1 margin. Other states soon followed. In 1906 Montana voters approved an initiative and popular ref-erendum amendment proposed by the state legislature. Oklahoma became the first state to provide for the initiative and popular referendum in its original constitution in 1907. Maine and Michigan passed initiative and popular referendum amendments in 1908.

In 1911 California placed initiative and popular referendum in their constitution. Other states were to follow- but even with popular support in many states, the elected class refused the will of the people and did not enact this popular reform. In Texas; for example, the people actually had the opportunity to vote for initiative and popular referendum in 1914, but voted it down because the amendment proposed by the legislature would have required that signatures be gathered from 20% of the registered voters in the state -a number twice as large as what was required in any other state. The proponents for initiative and popular referendum felt it was more important to get a useable process than one that would have maintained the status quo and provided no benefit to the citizenry. However, the legislature used this defeat as an excuse to claim that initiative and popular referendum was not wanted by the people and therefore effectively killed the movement in Texas.

Eventually, between 1898 and 1918, 24 states adopted initiative or popular referendum- mostly in the West. The expansion of initiative and popular referendum in the West fit more with the Westerners belief of populism- that the people should rule the elected and not allow the elected to rule the people. Unfortunately in the East and South this was not the case. Those that were in power were opposed to the expansion of initiative and popular referendum because they were concerned that blacks and immigrants would use the process to enact reforms that were not consistent with the beliefs of the ruling class.

In 1959, when Alaska became a state, the citizens had adopted the power of initiative and popular referendum. Then in 1972, Floridians adopted statewide initiative. Mississippians in 1992 restored initiative and referendum to their constitution, 70 years after the state Supreme Court invalidated the election creating the process. Mississippi became the newest and last state to get this valuable tool.

The credit for the establishment of initiative and popular referendum in this country belongs with the Progressives. They worked steadily to dismantle the political machines and bosses that controlled American politics by pushing reforms eliminating the influence the special interest had on political parties and the government. Their goal, as is that of today’s proponents of the initiative and popular referendum, is to ensure that elect-ed officials remain accountable to the electorate.

Conclusion
The evolution from tyranny to democracy has been a long and difficult road- a road that is never ending. But as you can see, the evolution of initiative and referendum is not contrary to the evolution of representative democracy- but an enhancement to it. The two are designed to work hand-in-hand with each other. The following chapter by Rob Natelson specifically addresses this issue.

The long journey for democracy that began with the Magna Carta is far from finished. Though its future form may be unclear today, we can be certain that democracy will increase and that initiative and referendum will play a role in determining future democratic systems.

Initiative and Referendum Historical Timeline
This information compiled from research contained in David Schmidt’s Citizen Lawmakers and from independent research conducted by the Initiative & Referendum Institute.

1775 In his proposed 1775 Virginia state constitution, Thomas Jefferson includes a requirement that the constitution must be approved by the voters in a statewide referendum before it can take effect. Unfortunately, because he was hundred of miles from Virginia at the time attending the Continental Congress, delegates to the Virginia Convention did not receive the proposal until after the convention was already over.
1776 Georgia delegates gather in Savannah to draft their state’s constitution. The constitution includes a provision that would allow amendments whenever a majority of voters in each county signed petitions calling for a convention, but the provision is never invoked.
1778 Massachusetts becomes the first state to hold a statewide legislative referendum to adopt its constitution. The voters reject it by a five-to-one margin, forcing the legislature to rewrite its proposal.
1792 New Hampshire becomes the second state to hold a statewide legislative referendum to adopt its constitution.
1830 Voters in Virginia demand the power to veto amendments to their state constitution and are given it.
1834 Alabama, Connecticut, Georgia, Maine, Mississippi, New York, North Carolina, and Rhode Island adopt provisions preventing their state constitutions from being amended without the approval of the voters.
1848 The Swiss Constitution includes provisions for initiative and popular referendum.
1857 Congress requires that voters must approve all state constitutions proposed after 1857.
1885 Father Robert Haire, a priest and labor activist from Aberdeen, South Dakota, and Benjamin Urner, a newspaper publisher from New Jersey become the first Americans to propose giving the people statewide initiative and popular referendum power.
1897 Nebraska becomes the first state to allow its cities to use initiative and popular referendum.
1898 South Dakota becomes the first state to adopt statewide initiative and popular referendum.
1900 Utah becomes the second state to adopt statewide initiative and popular referendum.
1901 The Illinois legislature creates a statewide nonbinding advisory initiative process.
1902 Oregon becomes the third state to adopt statewide initiative and popular referendum. In Illinois, using a statewide nonbinding advisory initiative process, citizens place an advisory question on the ballot asking whether or not Illinois should adopt a real initiative and referendum process-voters say yes, but the legislature ignores them.
1904 Oregon is the first state to place a statewide initiative on the bal-lot. In Missouri, voters defeat a measure that would have established statewide initiative and popular referendum.
1905 Nevada adopts statewide popular referendum only.
1906 Montana adopts statewide initiative and popular referendum. Delaware voters approve an advisory referendum put on the bal-lot by the state legislature, asking whether they want the initiative process- but the legislature ignores the mandate.
1907 Oklahoma becomes the first state to provide for statewide initiative and popular referendum in its original constitution.
1908 Michigan and Maine adopt statewide initiative and popular referendum. Unfortunately, Michigan’s initiative procedures are so difficult that, under them, citizens are unable to place a single initiative on the ballot. Missouri adopts statewide initiative and popular referendum.
1910 Arkansas and Colorado adopt statewide initiative and popular referendum. Kentucky adopts statewide popular referendum. Illinois voters again approve a citizen- initiated nonbinding advisory question in support of statewide initiative and popular referendum- and the legislature again ignores them.
1911 Arizona and California adopt statewide initiative and popular referendum. New Mexico adopts only statewide popular referendum.
1912 Idaho, Nebraska, Ohio and Washington adopt statewide initiative and popular referendum. Nevada adopts a statewide initiative process, complementing its statewide popular referendum process adopted in 1905. A majority of Wyoming voters voting on a constitutional amendment to adopt statewide initiative and popular referendum approve the amendment; but Wyoming’s constitution requires that all amendments also receive a majority vote of all voters voting in the election, regardless of whether or not they vote on the actual amendment itself- so the measure fails. A majority of Mississippi voters voting on a constitutional amendment to adopt statewide initiative and popular referendum also approve the amendment; but, like Wyoming, a constitutional requirement that all amendments also receive a majority vote of all voters voting in the election, defeats the measure.
1913 Michigan initiative and popular referendum supporters lobby the legislature to pass amendments simplifying its statewide initiative and popular referendum process, a process so difficult that it is unusable. The legislature passes the amendments and voters approve them.
1914 Mississippi and North Dakota adopt statewide initiative and popular referendum. Wisconsin and Texas voters defeat measures creating a statewide initiative and popular referendum process. A majority of Minnesota voters voting on a constitutional amendment to adopt statewide initiative and popular referendum approve the amendment; but Minnesota’s constitution requires that all amendments also receive a majority vote of all voters voting in the election, regardless of whether or not they vote on the actual amendment itself- so the measure fails.
1915 Maryland adopts popular referendum.
1916 A majority of Minnesota voters voting on a constitutional amendment to adopt statewide initiative and popular referendum again approve the amendment; but the Minnesota constitution’s requirement that all amendments also receive a majority vote of all voters voting in the election, regardless of whether or not they vote on the actual amendment itself- again dooms the measure.
1918 Massachusetts adopts statewide initiative and popular referendum. North Dakotans vote and approve a more lenient initiative process. The amendment passed by the North Dakota legislature and adopted by the voters in 1914 had such strict procedures that no initiatives qualified for the ballot in the following election, so initiative proponents put an initiative on the 1918 ballot to ease the procedures.
1922 The Mississippi Supreme Court overturns Mississippi’s initiative and popular referendum process.
1956 Alaska adopts statewide initiative and popular referendum as part of its new constitution.
1968 Wyoming adopts statewide initiative and popular referendum. 1970 Illinois adopts a very limited initiative process.
1972 Florida adopts statewide initiative.
1977 Hardie v. Eu is decided by the California Supreme Court which finds unconstitutional the Political Reform Act’s cap on expenditures for qualifying ballot measures since it violates the First Amendment of the U.S. Constitution. The District of Columbia adopts initiative and popular referendum. The U.S. Supreme Court rules in First National Bank o f Boston v. Bellotti that state laws prohibiting or limiting corporate contributions or spending in initiative campaigns violates the First and Fourteenth Amendment.
1980 For the third time, a majority of Minnesota voters voting on a constitutional amendment to adopt statewide initiative and popular referendum approve the measure; but for the third time the Minnesota constitution’s requirement that all amendments also receive a majority vote of all voters voting in the election, regardless of whether or not they vote on the actual amendment itself dooms the measure. The U.S. Supreme Court rules in Pruneyard Shopping Center v. Robins that state constitutional provisions that permit political activity at a privately- owned shopping center does not violate federal constitutional private property rights of owner.
1981 The U.S. Supreme Court rules in Citizens Against Rent Control v. Berkeley that a California city’s ordinance to impose a limit on contributions to committees formed to support or oppose ballot measures violates the First Amendment.
1986 Rhode Island voters defeat a measure establishing statewide initiative and popular referendum.
1988 The U.S. Supreme Court rules in Meyer v. Grant that states cannot prohibit paid signature gathering, saying that initiative petitions are protected political speech.
1992 Mississippi adopts statewide initiative for the second time.
1996 Rhode Island voters approve a nonbinding advisory question put on the ballot by the legislature asking if they would like to have a statewide initiative and popular referendum process- but the legislature ignores them.
1998 The Initiative & Referendum Institute is formed to study and defend the I&R process on the 100 year anniversary of the adoption of the statewide initiative and popular referendum process in America
1999 The Minnesota House of Representatives approves a constitutional amendment that would establish a statewide initiative and popular referendum process. The U.S. Supreme Court declares in Buckley v. American Constitutional Law Foundation that, among other things, states cannot require that petition circulators be registered voters.
2000 The Minnesota Senate kills the initiative and referendum bill passed by the House the year before. The Initiative & Referendum Institute files suit against the U.S. Postal Service’s 1998 prohibition on collecting signatures on initiative petitions on postal property.

This is the original version of a chapter from The Battle Over Citizen Lawmaking, prior to editing. Also see the published version.

By Dennis Polhill

The most significant idea of the second millennium is that government powers must be limited. This is the foundation principle for democracy.

HISTORICAL BACKDROP
The dominant form of government throughout all of human existence has been Kings. Sometimes called Caesar, Czar, Pharaoh, Caliph, Emperor, Kaiser, or Chief, the system was the same. One man determined all aspects of life for all of the people. Because “the King was the law” fairness and consistency were no more than occasionally dreamt ideals. Individual rights existed only to the extent that the King granted them. Because Kings were granted their power to rule from God, the King’s eldest son typically became the next King.

Before there were big Kings, there were little Kings. Living in caves, the little Kings gained their initial power by brute force. They decided who would and who would not eat; what crimes would receive what punishment; and when to raid and pillage the neighbors.

As society grew larger, little Kings became big Kings. It was increasingly difficult to oversee an enlarging geography. As a result the system of Feudalism using lesser Kings called barons, earls, and lords evolved. To administer the increasing number of items requiring the attention of the big King, the corps of advisors in service to the King grew larger, more bureaucratic and more corrupt. Together the big King, the lesser Kings, and their advisors made up society’s ruling class, called the aristocracy. Slavery was common and non-slaves were not much better off. The role of commoners or serfs in this cast system was to work and to pay tribute.

ISLAND FEUDALISM LEADS TO LAWS
England was somewhat insulated from the more frequent Feudalistic conflicts of mainland Europe. Thus, internal domestic concerns reached centerstage sooner. The natural tension between the big King and the lesser Kings came to a head in 1215. A collection of barons had mutinied, defeating the King’s army. Magna Carta in 63 written articles defined Feudalistic Rights. The single revolutionary notion achieved by Magna Carta was that there should be limitations upon the absolute power of the King. Magna Carta was a necessary step. But more time would be needed to invent democracy.

Magna Carta did more to help of the barons than the commoners. It reorganized the judicial system; it abolished tax assessments without consent, which eventually grew into Parliament; it standardized penalties for felonies; and trials were to be conducted according to strict rules of procedure. Although the Pope voided the charter, it was reissued in 1217. In 1258 again over taxation the barons revolted, forcing the Baronial Council to become permanent. The permanent Baronial Council was the first vestige of the House of Lords of Parliament. Magna Carta was modified and confirmed by Parliament in 1297.

Conflict over the divine right of Kings versus limitations continued for centuries. In the 17th century religious fragmentation and persecution fueled internal turmoil and emigration to the New World. Royal abuses had become so extreme that in 1628 Parliament passed the Petition of Rights. The Petition enumerated abuses and asked that they cease. The King responded by forcing Parliament to adjourn and imprisoning parliamentary leaders. An 11 years religious war against the Scots forced the King to convene Parliament to raise taxes. Unfriendly to the idea, Parliament was immediately adjourned and a new Parliament convened in 1640. But the new Parliament was even less friendly to the King and quickly arrested and executed one of the King’s closest advisors for treason, emphasizing the view that the King and his advisors were not above the law.

A national Referendum was proposed on the abolition of the monarchy and the House of Lords. A House of Commons would be elected by universal male suffrage but limited by a bill of rights. The King refused to cooperate, was convicted of violating his coronation oath by attacking the people’s liberties, and was publicly beheaded in 1649. Parliament took unilateral control of government under the dictatorial leadership, Oliver Cromwell. The state-preferred religion changed, but religious persecution continued. Parliament was purged. Cromwell cruelly suppressed the Irish and Scots. The Commonwealth began to crumble. Upon Cromwell’s death, his son proved too weak to maintain control and the son of the beheaded King was asked to return in 1660.

JOHN LOCKE
Contemporary events evidently influenced the thinking of John Locke, arguably the foremost political thinker of all times. Locke was born in 1632 and was educated at Oxford University. After teaching briefly, he became a physician. Uncomfortable with the restoration of the monarchy, Locke went to France in 1675, returned in 1679 to discover religious persecution as rampant as ever, and returned to the Continent until 1689. He was a philosophical empiricalist emphasizing the importance of experience and experimentation in the pursuit of knowledge. His two most important writings, Essay Concerning Human Understanding and Two Treatises of Government were written in 1690. Locke attacked the theory of divine right of Kings and argued that sovereignty resided with the people, not the state. The state was limited by civil and “natural” law. It was government’s duty to protect natural rights, such as life, liberty, property, and religious freedom. He advocated checks and balances via three branches of government and separation of church and state. Locke held that revolution was not only a natural right, but an obligation.

The contest for supremacy between the King and Parliament continued after Cromwell’s death. Finally the divine right of Kings ended with the Glorious Revolution in 1688. In a Parliamentary vote the Crown was taken from James II and offered to William and Mary conditioned upon a written Declaration of Rights, which enumerated rights in similar fashion to the U.S. Bill of Rights.

CONTRASTING CONSTITITONS
Other than the three great Charters of English liberty discussed above (Magna Carta, Petition of Rights, and Declaration of Rights), Great Britain has no written constitution. Many consider the three great Charters to comprise Britain’s constitution. The British constitution makes no mention of governmental structure; only rights.

Interestingly, the U.S. Constitution, as it emerged from the 1787 Constitutional Convention was the opposite. It focused on governmental structure only and made no mention of rights. So, what is a constitution? Dictionaries and encyclopedias avoid a comprehensive definition.

LESSONS LEARNED FROM IMPERIALISM
In the middle of the second millennium the two major contestants in claiming the World were Britain and Spain. Colonization meant the superimposition of language, laws, culture and government from the motherland. A look at the human condition today in the respective colonized countries is instructive. In virtually every case the English speaking ones are better off than the Spanish speaking ones: stronger economies, human rights, more individual wealth, bigger players in the global economy, lower poverty, less disease, longer life expectancy, higher education, more evolved democratic processes, etc. Did the British pick better countries to colonize or is there another reason? If the success of the British colonies happened to be the product of natural resources, genetics, climate, the efforts of an individual political leader, or a few technological breakthroughs, the result would be random. Because the result is virtually universal, the defining variable must be a component of the British culture. It must be the system of rights, laws and government. That no man is above the law: the rule of law, is not a trivial contribution.

EVOLUTION OF SOVEREIGNTY
Magna Carta simply established that government should be limited. For nearly 500 years the concept of limits was refined and solidified. Then John Locke introduced the next revolutionary notion: that the people were sovereign, not the King. The King-by-proxy government of the American colonies, proved both ineffective and largely irrelevant to the increasingly self-reliant colonists. They would soon be ready to put Locke’s ideas into practice.

New England Town Meetings date back to the early 1600s. Elections of leaders occurred from the beginning of colonization. Thomas Jefferson suggested in 1775 that the proposed Virginia Constitution be approved by a vote of the people. In 1778 Massachusetts was the first state to hold a statewide referendum to adopt its constitution. It failed and had to be rewritten. New Hampshire adopted its constitution of 1792 by statewide referendum. When the Virginia Constitution was rewritten in 1830 the people took from their legislature the unilateral authority to amend their constitution. In 1834 eight additional states made changes to recognize the people’s sovereignty. Today 49 states acknowledge the sovereignty of their people by requiring that proposed amendments to the state constitution be approved only by vote of the electorate. Delaware is the only state that permits its legislature to amend its state constitution.

Thomas Jefferson had a firm grasp of Locke’s ideas and assigned it such importance as to advocate that it be one of three mandated readings for all students. Over 100 years Locke’s junior, at 33 Jefferson shook the foundations of conventional thinking by writing in 1776, “… to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” Remembering their comparatively recent experience with Cromwell, the British aristocracy accepted the notion of self-government with bemusement. The first real experiment in human history with self-government had begun.

REPUBLICAN FORM OF GOVERNMENT
Article IV, Section 4 of the U.S. Constitution states, “The United States shall guarantee to every State in this Union a Republican Form of Government …” This meant free, open, and competitive election of representatives. The concern in 1787 was that if the people of one State chose a monarch or dictator, that the inevitable friction and thirst for political domination would undermine and destabilize their experiments in self-government in other states. It is contrary to the notion of self-government to suggest that this clause infers any further limitations on how people might decide to govern themselves.

MANAGEMENT THEORY
Management students learn to lead by exercising the principles of management: planning, organizing, directing, and controlling. Subordinates are empowered to achieve their charge by the delegation of authority. Though authority is delegated, responsibility is not. Because responsibility is maintained, the manager is obliged to oversee the progress of work. When subordinates deviate from the work plan or fail to be productive, the manager takes corrective action. Tasks that require a comprehensive vision or far-reaching strategic decisions cannot be effectively delegated. The responsibility of controlling the work implies that the manager may occasionally find it necessary to un-delegate tasks, taking things into his own hands. Usually un-delegating fills a subordinate’s skill gap helping good workers to become better. Occasionally the subordinate is generally incompetent or insubordinate and the manager is compelled to take more extreme action.

Of course, the people must be the boss in any model of democratic government. This is widely understood and frequently underscored. The U.S. Constitution opens with “We the People” and goes on to make numerous limiting and insensitive pronouncements such as “Congress shall make no law …” Article I, Section 1 says, “All legislative Powers herein granted shall be vested in a Congress …” The people delegate to Congress the authority to legislate, but limited the extent of the delegated authority by the phrase “herein granted.”

State constitutions replicate the tone and terminology. In Colorado, Article V, Section 1 opens with “The legislative power of the state shall be vested in the general assembly consisting of a senate and house of representatives, both to be elected by the people, but the people reserve to themselves the power to propose laws and amendments…” Here the sovereign people delegate the authority to legislate to the general assembly, but the people are also making it absolutely clear that they are not delegating all legislative authority. They “reserve to themselves” the power to legislate when they so choose.

INSUBORDINATE LEGISLATORS
The contempt that legislators hold for petitions is not surprising. To them any petition on any subject is a personal insult. It is like saying, “You didn’t do your job. So let’s go see what the boss has to say about it.” Any person with enough talent and pride to be an elected official would naturally be offended.

However, when offense turns into action to strangle the process, the very person elected to protect and defend democracy, his constituents, and the Constitution crosses the line by subverting the institutions he swore an oath to uphold. Icon of democracy reverts to subversive tyrant. As stated in the Declaration of Independence, “A Prince, whose character is thus marked by every act which may defined a Tyrant, is unfit to be the ruler of a free people.” Penned in 1776 with King George III in mind, the phrase is surprisingly fitting for some of today’s political operatives.

Legislative attacks on the petition process are too many to discuss thoroughly. Most Initiative states observe at least one attempt per year to restrain the petition process. In 1999 there were over 100 such bills in the state of Oregon alone. The State of Colorado has been humiliated twice on the national stage for passing acts subversive to democracy, when the U.S. Supreme Court struck down legislatively imposed petition restrictions. The Court’s view is that whether the state has petitions is determined by the people of the individual state. However, once the state has the Initiative and Referendum (I&R) process, the First Amendment, protection of free political speech rules. Thus, reasonable regulations that facilitate and augment the process are permissible. Restrictions are not.

CONFLICT OF INTEREST
The petition process is daunting to undertake. Most people who consider a petition decline to pursue it. No one exercises the petition process when any other path is available. A review of the subject content of various petitions reveals the obvious. Petitions deal with two types of issues: conflict of interest issues and too-hot-to-handle issues.

Conflict of interest issues are those that are impossible for legislative bodies to address honestly due to their position. Examples include: compensation and benefits, districting, terms of office, recall, campaign finance limitations, term limits, tax and spending limitations, and regulations of the I&R process. Basically any issue that limits the power of politicians or government is a conflict of interest issue. Expecting the legislature to fairly deal with any of these examples is like asking a first grader to set his own bedtime. It just doesn’t work.

Too-hot-to-handle issues are those that carry a political price that legislators are unwilling to pay. These include those that are offensive to any side of any issue. Politicians who wish to be reelected are careful to not offend any lobbyist constituency or any grassroots group. Thus, issues with even a moderate degree of controversy tend not to be addressed in the legislature.

SPECIAL INTERESTS
The history of special interests is well-known. After the Civil War railroads and other business interests gained enormous influence over legislative bodies. Inordinately fraudulent elections placed tremendous control in the hands of corrupt political party machines. Legislators were openly purchased. Policy meant the allocation of privilege to the few. In response to criticisms insiders strove to clarify the forms of graft that were proper. Outraged groups of reformers came together first in the Populist movement of the 1890s and again as the Progressive movement of the 1900s. Betrayed by their political leaders, they advocated reforms that enlarged the democratic process by limiting the powers of their elected officials. Some of the advocated reforms included woman suffrage, secret ballots, election of U.S. Senators, primary elections, election of judges, recall petitions, Initiative petitions, Referendum (legislative challenge) petitions, voter registration, no straight party ballots, nonpartisan municipal elections, and many more.

No doubt these insiders referred to the insurgent Populists and Progressives as “special interests.” From their perspective the label was accurate. The insurgents did have different interests. Because any group of like-minded people may be referred to as a special interest, a clearer definition of the term “special interest” is needed.

Webster’s New Collegiate Dictionary defines special interest as “a person or group seeking to influence legislative or government policy to further often narrowly defined interests.” By this definition, because the Populists and Progressives were motivated on behalf of the general interest of society, they were less of a special interest than were the railroads. The word “narrowly” is key to the definition. When a broad segment of society stands to benefit from an idea, then advocacy is, by definition, not that of a special-interest.

With a clearer understanding of the term “special interest,” a closer look at what happens under the Capitol dome, is instructive. A February 7, 2000, research paper by Professor Barry Fagan, “Who Testifies and Why” tabulates all testimony on all 60 bills heard in 1999 before the Colorado Senate Finance Committee. Sixty two percent of the bills concentrated benefits narrowly. Equally important, Professor Fagan discovered that, “…chances are 96 percent that a witness is a beneficiary of that bill or representing someone who is …” Fagan explains the imbalance by public choice theory. Most witnesses are motivated by self-interest and come to testify when the benefits of testifying outweigh the costs. This occurs most frequently when benefits are concentrated narrowly. When a bill is structured as special interest legislation, favorable testimony is abundant. The legislative process sinks to the level of special-interest autonom. A similar study by James Payne, “The Public Interest,” revealed that Congressional testimony for more spending was favored by the ratio 145:1.

To state that the legislative process is heavily influenced by special interests may be an understatement. A quick look back at the list of examples of initiative petitions in the previous section, “Conflict of Interest,” reveals that hardly any are issues with narrowly concentrated benefits. Clearly the petition process is less influenced by special interests than is the legislative process under the Capitol dome.

In a March 1997 paper “The Citizen’s Initiative and Entrepreneurial Politics,” Professor Anne G. Campbell concluded, “… the initiative process in Colorado has been used primarily in attempts to benefit the public interest, and that it has rather infrequently been used to promote the objectives of special interests.”

WHAT THEY SAY ABOUT PETITIONS
As it is said, “A half truth is a whole lie.” Politics has become the deceitful art of stating half-truths. Half-truths are especially effective in misleading the less informed for the short term. This is why negative campaigning is so effective. If the opposition objects, then the false claim gains legitimacy.

From the discussion in previous sections it is known that those who dislike petitions most are those with the greatest stake in the legislative process: career politicians, lobbyists, and special interests. These groups tend to be especially well-practiced in the art of manipulating rhetoric to suit their purposes. Following is a list of the 14 most commonly heard complaints about petitions as stated by petition opponents:

1. Initiatives are the tool of special interests.
2. Initiative campaigns are influenced by money.
3. Voters are incompetent to decide complex issues.
4. Initiatives are poorly written.
5. Initiatives are often unconstitutional.
6. There are too many initiatives on the ballot.
7. Initiatives cause ballot clutter.
8. Voters do not like long ballots.
9. Initiatives benefit one philosophy.
10. People vote selfishly.
11. Many initiatives are bad ideas.
12. Initiatives place extraneous material in the Constitution.
13. Initiatives create tyranny of the majority.
14. Initiatives make the Legislature unnecessary.

A more extensive discussion of each is provided in “Are Coloradans fit to make their own laws?” By Dennis Polhill, Oct. 1996 which can be found at http://www.i2i.org/suptdocs/issupprs/ip0896.htm or http://www.iandrinstitute.org/indepth/document1/introduction.htm).

These 14 statements are more accurate when reworded slightly:

1. Initiatives provide a means of legislating when special interests control the Legislature.
2. Initiative campaigns make it more difficult for money to influence legislation.
3. Voters are competent and conscientious to decide complex issues.
4. Initiatives are not as poorly written as most legislation.
5. Initiatives are rarely unconstitutional.
6. More initiatives appear on ballots when the legislative process is not working properly.
7. Ballot clutter is augmented by old ballot format and voting procedures.
8. High voter turn out proves that voters want to vote on issues.
9. Initiatives are used by every political philosophy.
10. People vote thoughtfully.
11. Many initiatives are good ideas.
12. Initiatives rarely place extraneous material in the Constitution.
13. Initiatives can not cause “Tyranny of the Majority.”
14.Initiatives focus the legislature on issues relevant to voters.

HOW MANY ARE TOO MANY?
In all of Colorado history only 61 petitions have made it into law. The process is so difficult that the vast majority do not succeed. About 70% are defeated in election. But only one in 10 or 20 reaches the ballot at all. Hundreds more are never attempted either because people are unfamiliar with their right to petition or because they lack the resources to undertake the difficult petition process.

Because the Colorado General Assembly passes about 300 laws per year, the 61 petition-laws represent close to 0.2% of all laws. Stated in reverse: 99.8% of all Colorado law is made in the General Assembly.

These numbers overstate petition activism. At the local government level far fewer than 0.2% of laws come from petitions. Fewer than 5% of Colorado’s local governments have the petition process and those with it rarely exercise it. At the Federal government level no laws are the product of petitions.

The 0.2% also overstates petition activism at the state level nationwide. The majority of States (26) do not have the initiative petition. Several of the remainder 24 State procedures are so restrictive that the process is rendered dysfunctional. For example, scholars frequently do not even count Illinois among the list of states with I&R and the Mississippi process is so difficult that only two petitions have ever succeeded in appearing on the ballot. Of the states where petitions are most active, only two states have more petitions appear on the ballot than does Colorado. That means 47 states (94%) have no petitions or fewer petitions than Colorado.

Comprehensive data is not available to calculate an absolute number, but conceptual generalizations are possible. Less than 0.1% (1 in 1,000) of state level laws result from a petition. Possibly as little as 0.01% (1 in 10,000) of all laws come from a petition.

DIRECT DEMOCRACY
The term Direct Democracy infers a system of democratic government in which citizens are consulted on all decisions. Conversely, Indirect Democracy is a system of democratic government through elected representatives. One hundred percent implementation of either extreme is improbable and generally undesirable.

Absolute Direct Democracy, although increasingly achievable via modern technology, would quickly wear on the interest and patience of most people. Average citizens would be buried with hundreds of daily decisions regarding issues impossible for most to become adequately educated about: should the police chief received a raise, be fired, be commended, or be reprimanded? Clearly, smaller, decentralized, more devolved units of government may more effectively deal with direct involvement of their citizens. The Swiss Landsgemeinde predating 1294 and the pre-Revolutionary War New England town meetings (banned by Britain “for better regulating the government…”) provide evidence. Small groups quickly discover it expedient to divide work and specialize. Management expert, Tom Peters claims that groups begin to become bureaucratic when they grow to five people. Bureaucracy is the negative byproduct of work specialization.

Absolute Indirect Democracy is equally infeasible. In the Management Theory section it was revealed that the boss (the sovereign people) must never delegate certain tasks and must sometimes un-delegate tasks. It was also learned in the Conflict of Interest section that there are issues impossible for legislators to address honestly and other issues too difficult for legislators to resolve.

Sometimes the term Direct Democracy is used in a pejorative sense. The context leads people to believe that any more citizen participation might result in chaos or an end to life as we know it. As was discovered in a the discussion of Special Interests, a look at who is making such claims may be more informative than the actual words.

Although an Initiative petition is an example of Direct Democracy, it alone is not Direct Democracy. It would be less misleading to apply either the term Direct legislation or citizen participation.

As the wise old man said, “If you don’t ask the right question, you cannot get the right answer.” The Direct Democracy question is more accurately about “What is the appropriate level of citizen participation in their government?” Though a specific answer is currently unavailable, the vast majority of people concur that there will be more citizen participation in the future. The underlying questions are, “How soon will there be change? What form will the change take? Where will the leadership come from? Who should decide?”

DO PETITIONS DOMINATE THE PROCESS?
Knowing that at least 99.9 percent of laws come from elected officials, makes it difficult to reconcile the domination claim. It is unlikely that the average petition law is over 1000 times more important than the average legislated law? Respect for legislators might improve, however, if they passed fewer inconsequential laws. Knowing who opposes petitions and why from the discussion in previous sections, helps explain the source and motivation for this exaggeration.

But by the mere fact that they are statements from the boss, petition-laws approved by a vote of the people are and should be more consequential than legislated laws. A true representative would never dream of ignoring or subverting the stated will of people. The influence of petitions goes even farther. Failed petitions communicate much information about the concerns and priorities of the public. These expressed concerns of the general public often influence the legislative agenda. Agenda priorities suggested external to the General Assembly might be a disruption to an internally set agenda, but only if the internal agenda is out-or-sync with the people. A true representative welcomes such direction, because it allows him to do his job more effectively.

Because petitions are used by every political ideology, petition opponents can easily find examples offensive to anyone. The tax issue is an interesting study. Although some believe that taxes should be higher, the majority of people today feel that their taxes are high enough. This majority view is out-of-sync with the view of most legislators, as they frequently feel compelled to seek ways to circumvent the will of people. A recent study by University of California Professor John Matsusaka found that Initiative states are taxed 4% below the national average. Matsusaka also found during the 1930s, when the public had a greater interest in more government spending than did legislators, that Initiative states accelerated spending more rapidly than did non-Initiative states. Legislators are often out-of-sync with the people and petitions universally accelerate the democratic process, correcting the disparity.

Citizens take their voting franchise seriously. Exit polls regularly find that voters are more informed on most issues than they are on most candidates. Attempts to ascertain voter drop-off patterns are ineffective, because voters rationally skip issues they are uncertain about and seek out those issues they care about. States, like Wyoming and Minnesota, that count abstain votes (skipped votes) as something other than an “abstain,” misrepresent and distort the intent of voters.

Professors Caroline Tolbert, Daniel A. Smith, and John Gummel released new research that reverses a commonly held misperception. “The Effects of Ballot Initiatives on Voter Turnout in the American States” concluded that voter turnout was higher in Initiative states than non-Initiative states in every Presidential election and in every midterm election from 1960 through 1996. Initiatives appear to universally augment voter interest in elections.

HOW DOES MONEY INFLUENCE THE PROCESS?
Professor Anne G. Campbell has focused her research on the influence that money has on the outcome of issue elections. In a January 1999 paper, “The Effect of Campaign Spending on Initiative Campaigns,” Campbell concluded, “while overwhelming spending in opposition to a ballot measure can buy the defeat of initiatives, money has been singularly ineffective at buying the passage of initiatives.” This makes use of the process by narrowly defined special interests nearly impossible, unlike the legislative process.

The 1976 Colorado election was historic. Alarmed at the growth in the number of
Initiative petitions, opposition groups rallied to put a stop to it. Professor John S. Shockley tabulated that opposition spending exceeded proponent spending by over 10:1 on all issues combined. The opposition groups subsequently passed several laws restricting the petition process, several of which have since been stricken as unconstitutional. In 1996 when petition defenders attempted to protect petitions from continuing attacks by the General Assembly with the Petition Rights Amendment, opponents raised over a million dollars to perpetrate false campaign claims and defeat the measure.

In her new book, “The Populist Paradox,” Professor Elisabeth Gerber neutralized left-right ideological issue bias by aggregating all ballot measures in eight states over the period 1988 through 1992. Gerber found that 61 percent of all money spent in Initiative campaigns appeared on the opposition side. Gerber further found that 74 percent of opposition funding came from economic, professional, and business interests, the very same groups that are highly organized and well funded to affect favored outcomes at the state capitols. Regarding referred measure campaigns, Gerber further discovered that 70 percent of the funds came from the same groups who opposed initiatives and that 98 percent supported the measures drafted in the state legislature.

As measured by their spending, it can be concluded that those who work the Capitol like referred measures, but do not like Initiatives.

WHEN IS GOVERNMENT INTRUSION PERMISSIBLE?
The decade-ago collapse of Communism reminds us that political change comes in only two possible forms: violent and nonviolent. Though more lives would have been lost had Soviet troops been willing to fire on unarmed civilians, the transformation of Eastern European countries could have been less violent. Fewer lives might have been lost if the system had been open to continuous, gradual, peaceful change. However, it is not the nature of totalitarian systems to be open. Systems of democratic government, on the other hand, should be different.

But even in a democracy it is unrealistic to expect the status quo to reform itself out of existence whenever the need arises. The Initiative petition was invented as a pressure release valve to implement structural changes to the system peacefully. The Progressives used the petition as their tool to advance the remainder of their structural reform agenda (a partial list of their reforms is provided in the Special Interests section above). Term limits, tax limits, and campaign spending limits are current examples of structural changes that would be impossible without the petition.

In the Insubordinate Legislators section the view of the Court was mentioned: reasonable regulations to facilitate and augment the process far permissible; restrictions are not. When governments regulate petitions, they find themselves in an awkward position, at best.

Non-mandatory advice from government and other experts is desirable. Intrusion occurs whenever a government is in a position to exercise veto or approval power over a Petition. Some commonly observed intrusion points are: drafting of the scope, drafting the title, drafting a summary, estimating fiscal impact, determination of single subject, determination of Constitutionality, approval of petition format, drafting of voter information guides, and the counting and validation of signatures. Space does not permit discussion of each of these potential abuse points. Most people involved for the government are astutely aware of the inherent problems and work painstakingly in pursuit of fairness and objectivity. Unfortunately not all people are able to hold their personal biases in check. Minor rhetorical variations that might have devastatingly fatal consequences to a campaign or to the ultimate meaning of a proposal should be made only by the proponents. Anything otherwise, jeopardizes altogether the fundamental idea of the Initiative petition.

The rationale for intrusion is to protect voters from abuse and manipulation by overzealous proponents. This concern fails the logic test. It pre-supposes that someone is better able to screen for the truth and to objectively recast the message for public consumption. It also assumes that the election mechanism itself is an inadequate check against manipulation and deceit. These are both false, at least most of the time. But even if they were true, both thoughts are fundamentally undemocratic and bring to mind the famous Thomas Jefferson quote, “Men by their makeup are naturally divided into two camps; those who fear and distrust the people and wish to draw all powers from them into the hands of the higher classes, and those who identify themselves with the people, have confidence in them, cherish and consider them the safest and most honest, if not always the wisest, repository of the public interests. These two camps exists in every country, and, whenever men are free to think, speak, and write, they will identify themselves.”

There should be no doubt that an increasingly restrictive and closed petition process increases the risk of violence in America. Abraham Lincoln once advocated a national Referendum to reconcile the slavery issue. It is impossible to known whether the Referendum might have been effective in avoiding the Civil War, saving hundreds of thousands of American lives and immeasurable human suffering. But we do known the result without the Referendum and one cannot help but wonder, what would have been lost to have tried?

WHAT IS A CONSTITUTION?
A constitution is a written document of the people. It is the means by which the people agree to come together and operate as a civilized society. In so doing they define the structure of their government, establish separation and balance of powers between branches, and create limits. Clearly the entities created by the constitution are subordinate to it and may take no unilateral action to modify the constitution or to otherwise change its meaning. Such actions by any branch are grossly insubordinate and subvert the constitution, the process by which the government was created, the notion of sovereignty and the foundations for democracy. Only the sovereign people may make such changes.

“Natural” rights, sometimes called individual rights or fundamental rights, because they exist naturally, cannot be given or taken away by action of government. They should be itemized in the constitution in an un-amendable form. The primary reason for governments to exist is to protect and defend all “natural” rights for all of the people. Although a listing of “Natural” rights cannot be all-inclusive, the listing is important to facilitate their aggressive defense.

If the branches of government are separate and equal, then none is superior to the other. Thus, no branch is empowered to overrule another, when they are in dispute. A viable constitution must provide a means of reconciling such disputes. Disputes that cannot be resolved, probably necessitate action by the sovereign people.

Because the people may wish to modify either the structure of their government or the limits, a functional amendment process must be an integral part of any viable constitution.

A constitution for democratic government must:
1. Offer a list of “Natural” rights.
2. Establish the structure of government, including separation and balance of powers.
3. Define governmental limitations.
4. Include a method of reconciling disputes between the branches.
5. Provide a functional method of constitutional amendment.

A constitution that lacks one or more of these elements, may serve to provide civil society for a period of time. But lacking a key element, a constitution will eventually become dysfunctional and destructive to society. Once this occurs it may be necessary for it to be totally abandoned or replaced.

DYSFUNCTIONAL CONSTITUTIONS
The U.S. Constitution lacks a viable amendment process. Three quarters of the states must ratify proposed amendments. The problem is the source of proposed amendments. The founders anticipated that most proposed amendments would come from the states. But because Congress is in a position to block state-proposed amendments, no conflict of interest issues are addressed and governmental structure questions are rarely addressed. No state-proposed amendments have ever been released for ratification. Of those proposed by Congress, there have been over 10,000 introduced, of which 33 have been released for ratification and 27 have been ratified. Of the 27, numbers one through 10 plus 27 were drafted by James Madison as the Bill of Rights. Only a few (12,19 & 22) of the remaining 16 deal with change in the structure of government.

Forty-nine states have made 399 applications for a Constitutional Convention. Yet Congress stonewalls both efforts to convene a convention or to develop systems that might make a convention unnecessary. Congress’ thirst for power may make it the most tyrannical, undemocratic institution in America. Thomas Paine wrote as though he know the Congress of today, “Men who look upon themselves as born to reign, and others to obey, soon grow insolent; selected from the rest of mankind their minds are early poisoned by importance; and the world they act in differs so materially from the world at large, that they have but little opportunity of knowing its true interests … ”

The Confederate Constitution corrected some dysfunctional parts. It prohibited omnibus bills, required a supermajority vote for appropriations, and removed from the control of Congress the process of proposing amendments, requiring that 25% of the states concur on a proposal to release it for ratification.

Legislators that work to subvert the petition process in I&R states are insubordinate. Are Legislators in non-I&R states any less insubordinate? Hardly! Their arrogance and contempt for democracy is shocking. Evidently they believe that the state constitutional flaw that fails to provide a viable amendment mechanism somehow empowers them to deny the people’s will when they so choose. Legislators in non-I&R states are obliged to bring important issues before the people for their consideration, including the state constitutional amendment process itself. In 1906 the people of Delaware voted in favor of I&R with 89.1%. With this mandate the people have been patiently waiting for over 94 years for their honest and responsible representatives to implement the process.

The words of the Founders are often relevant today. In his 1776 book Common Sense Thomas Paine wrote, “We may be as effectively enslaved by the want of laws in America, as by submitting to laws made for us …”

SUMMARY
1. Magna Carta established that government must be limited.
2. John Locke reasoned that the purpose of government is to protect the “natural” rights of individuals.
3. The American colonies put the ideas of self-government and people-sovereignty into practice.
4. The ideas of democratic theory properly replicate those commonly exercise in management theory.
5. Attacks on the petitioner process by elected officials are acts of insubordination, were worse.
6. Petitions typically represent issues impossible for legislators to resolve.
7. Special interest groups find the petitioner process less friendly than legislation by elected officials.
8. The most commonly heard complaints about petitions are simply not true.
9. Less than one in 1,000 of our laws is the result of a petition.
10. A middle ground is preferable between absolute Direct Democracy and absolute Indirect Democracy.
11. Petitions help elected representatives to be more responsive and democratic.
12. Petitions increase voter turnout.
13. Voters are better informed on issues than they are about most candidates
14. Money is used most substantially by opponents to defeat petitions.
15. Government involvement in the petitioner process should be advisory only.
16. A Constitution is the people’s tool for defining and limiting their government.
17. A Constitution is dysfunctional when it lacks one of five major features.
18. Elected officials who refuse to correct dysfunctional Constitutional features are as insubordinate as those who seek to destroy the Constitution.

CONCLUSION
In all of human existence, life was mostly dictated by brutes. The comparatively recent invention of democracy has proven effective. Both human rights and economic freedoms have never been greater and are greatest where democratic processes are most evolved. The capacity of democracy to redefine itself is one of its most important aspects. Every time that democracy’s meaning has been questioned, the former definition was discovered to be too limited.

The U.S. may have suffered its darkest hour extending freedom to all races. But America’s largest war was insufficient to reconcile gender voting rights. This natural extension of democracy took another 48 years to achieve. But these, along with the civil rights movement of the 1960s, are only the best-known examples. Didn’t the Bill of Rights enlarge democracy? And the 12th Amendment that took selection of the President away from Congress? And what about the 19th Amendment that made U.S. Senators elective? And the 22nd Amendment that imposed term limits on the President? And didn’t many of the Progressives’ issues help to expand democracy: secret ballots, primary elections, voter registration, home rule, no straight party ballot, recall petitions, and Initiative and Referendum petitions?

Only by actions of tyrants has democracy been temporarily rolled back. There are no examples in the world were democracy was first enlarged and subsequently rescinded by democratic action. A recent poll revealed that petitions were popular among people in every state, but were most popular in those states with the Initiative and Referendum.

The long journey for democracy that began with the Magna Carta is far from finished. Though its future form may be unclear today, we can be certain that democracy will increase and that Initiative and Referendum will play a role in determining future democratic systems.

Opinion Editorial

By Dennis Polhill, Melissa Moses

It could be argued that government under Soviet communism was less hypocritical than America’s. The Soviets made no pretense about democracy, representation, accountability, competitive elections or open government. Citizen participation was mandatory for show. Lack of election alternatives was irrelevant. Besides, the ruling elite knew what was best.  Nothing could be gained by inviting the involvement of foolish and uninformed citizens. Americans are openly critical of arrogant Soviet rulers contempt toward their people. The unstated inference is that we know better. We have figured out this self-government thing and others would be wise to copy our example.

Is that so?

Turnover in the British House of Lords, appointed for life, has exceeded that of the U.S. Congress for most of the twentieth century. When Congressional turnover shot from 2% to 7% in 1994, it was labeled a revolution. Congressional elections typically have no more than a couple dozen of 435 House of Representatives seats in play. The power of incumbency combined with the conspiracy by the two dominant political parties to minimize their respective election risk through gerrymandering has resulted in the near-elimination of contested elections. If there is no threat of defeat, if there is no contest between candidates or ideas, is there an election?

Less studied, but equally troublesome are Colorado elections.  Every election cycle about 25% of the 100 General Assembly seats are uncontested by one of the two major parties.  Over 55% of the remaining races are won in landslides.  Only about a dozen races are seriously contested.

Colorado now has over 2,162 governments, each with an elected board and each with taxing and regulatory authority.  The distribution is 63 counties, 269 cities, 176 school districts, and 1,654 special districts (water, sewer, parks, recreation, fire protection and more).  There are 192 governments in Arapahoe County; 159 in Jefferson County.  The number of new governments grew last year by 69.

Though serving on a small district board may be a thankless task and recognition of one’s civic contributions may be deserved, some actions raise questions about motives. When an election date or location is obscure, fewer people vote. Although districts could conduct elections in November, when voter turnout is highest, they conduct elections that produce minimal voting. How difficult is it for someone to manipulate the election outcome? Their only legal obligation is to post a legal notice in a local newspaper. When there are not enough candidates to fill the vacancies, elections are cancelled.  Although November elections are less expensive, because costs are shared among many governments, other dates are typically used. A Jefferson County district with a $200,000 budget, increased its taxing authority to $164 million per year.  Another successfully opted-out of term limits by a vote of 10 to 4. How likely were these outcomes, except via secret elections?

The General Assembly, outraged at abuses of the initiative process, is currently considering numerous methods to throttle it. The November 2000 ballot had 12 statewide issues: six initiative petitions and six referred by the General Assembly. In 1998, there were eight initiatives and three referred; in 1996: eight initiated and four referred; in 1994: eight initiated and three referred; and, in 1992: 10 initiated and three referred. During the past five election cycles, voters approved 14 of 40 initiative petitions (35%) and 12 of 19 referrals (63%).

Though these numbers are not extreme, several 1990s initiatives were seen by politicians as personal insults. Tax limits said, We dont like what you are doing with our money.  Campaign spending limits said, We have concerns about how elections are financed. Term limits said, Dont stay forever. To the career politician, could anything be more insulting, more disrespectful, more unappreciative, more abusive?

In addition to the 12 statewide ballot issues on the 2000 ballot, at least 297 governments placed 537 measures on ballots, seven of which were initiative petitions (1.3%) and 530 of which were referred (98.7%). Of the 530, 328 were tax, debt or spending increases (62%) and 115 were attempts to opt out of term limits (22%).

What alien force has paralyzed our leaders to cease being influenced by the mere will of their constituents? Long ballots are primarily caused by the refusal of elected officials to abide by limits set by the people. Politicians falsely blame long ballots on petitions so that they may work to murder the messenger.

Dennis Polhill is a Senior Fellow and Melissa Moses is a Research Associate at the Independence Institute, a government reform think tank in Golden, http://i2i.org.

This article, from the Independence Institute staff, fellows and research network, is offered for your use at no charge. Independence Feature Syndicate articles are published for educational purposes only, and the authors speak for themselves. Nothing written here is to be construed as necessarily representing the views of the Independence Institute or as an attempt to influence any election or legislative action.
Please send comments to Editorial Coordinator, Independence Institute, 14142 Denver West Pkwy., suite 185, Golden, CO 80401 Phone 303-279-6536 (fax) 303-279-4176 (email)webmngr@i2i.org

Opinion Editorial

By Dennis Polhill

Most Colorado legislators will violate their oath of office soon after swearing it on January 10, 2001. The legislators will knowingly subvert the state Constitution’s provision which allows citizens to call for a vote on new laws passed by the legislature.

The oath reads, I, (name) solemnly swear that I will uphold the Constitution of the United States and the Constitution of the State of Colorado, and I will faithfully discharge the duties of my office to the best of my knowledge and ability, so help me God.

The authority to legislate is delegated to the general assembly. The delegation is limited, not absolute. Citizens are empowered to override legislative decisions. (Colo. Const., art. V, sec. 1.) The mechanism is the “referendum petition.” If enough signatures are gathered to challenge a new legislative statute, then the voters have a chance to approve or disapprove the statute at the next general election.

Colorados lack of recent referendum petitions is not the product of citizen contentment. Rather, it is Constitutional subversion by elected officials. The Colorado Constitution reads, The second power hereby reserved [to the people] is the referendum, and it may be ordered, except as to laws necessary for the immediate preservation of the public peace, health, or safety. In other words, the citizens get to vote on everything, if they want to, except for emergency legislation. But the definition of emergency has changed drastically.

Colorado’s most recent “referendum petition” in 1932 proved to be a humiliation to the legislature. The referendum challenged a 50% tax increase on oleomargarine and the tax increase was defeated with 62%.

Legislators determined to correct the problem and invented the safety clause. Mere citizens would no longer interfere with the legislator’s fine work–work such as imposing extortionate taxes on margarine in order to protect dairy farmers from competition.

Thus, the “safety clause” has appeared on nearly every piece of legislation since 1932. It reads, The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.

The safety clause is supposed to be used only for real emergencies–such as a law banning fires during an especially dry summer. But in practice, the “safety” clause serves only one purpose: to deny citizens their reserved power to challenge laws. In other words, to subvert the Colorado Constitution.

In response to criticism from Douglas Bruce and other citizen activists, legislative leadership in January 1997 declared new procedures for Use of Safety Clause. They publicly trumpeted their statesmanship: the safety clause no longer will appear automatically.

Well, maybe the “safety” clause is not automatic, but it’s still used very, very frequently, for bill that have nothing to do with emergencies of the sort that should prevent the public from being able to vote on whether to retain the law.

Indeed, Coloradans would be alarmed to learn that the legislature thinks there were 426 statewide emergencies just in the year 2000. Some of the safety-threatening-emergencies dealt with by the legislature since the 1997 promise to stop abusing the safety clause include: the ratio of electrical journeymen to apprentices, travel expenses for juries, regulation of notaries, pet care, prohibition of cruising, art in juvenile facilities, recouping license plate mailing costs, oil and gas commission personnel, and male mammography.

It’s true that abuse of the safety clause has declined. The clause was once universal, and now appears in about 59% of bill. Abuse of the safety clause tends to be higher in the year after an election, and declines by about ten points in election years. The State Senate misuses the safety clause more frequently than does the House.

Although more and more legislators are informed about this abuse and refuse to use the safety clause on their own bills, there is a complicity factor. The abuse is so rampant, that honest legislators must not object to the safety clause abuse by their peers. Otherwise, the conscientious legislators would be ostracized as extremists.

There is new leadership in both the Senate and the House this year, so perhaps the new leaders can implement some constructive changes.  Reforms might include: prohibition of safety clause use, except in genuine emergencies; separate roll call vote to attach a safety clause to a bill; requiring a statement of the exact supposed emergency and its injurious consequences; requiring supermajority approval to add a safety clause.

These reforms would make it much harder for legislators to prevent people from voting on whether to retain new laws. For the legislature ever to override the “reserved power of the people is a serious matter. Continued misuse would merit removal of this authority entrusted to legislators. Many legislators take their oath seriously. Let’s hope the changes of the 2000 election bring more responsible behavior.

Dennis Polhill is a Senior Fellow with the Independence Institute, a government reform think tank in Golden, http://i2i.org.

This article, from the Independence Institute staff, fellows and research network, is offered for your use at no charge. Independence Feature Syndicate articles are published for educational purposes only, and the authors speak for themselves. Nothing written here is to be construed as necessarily representing the views of the Independence Institute or as an attempt to influence any election or legislative action.
Please send comments to Editorial Coordinator, Independence Institute, 14142 Denver West Pkwy., suite 185, Golden, CO 80401 Phone 303-279-6536 (fax) 303-279-4176 (email)webmngr@i2i.org

Opinion Editorial

By Dennis Polhill

Every two years the State of Colorado accuses hundreds of thousands of its citizens of violating election laws. This accusation is implicitly made when signatures on initiative petitions are ruled invalid by the Secretary of State.Yet no one is fined or imprisoned for their crimes.

These criminals are not pursued because the State’s mission is to frustrate petitions, not to enforce the law.  Besides, persecuting thousands of everyday citizens for exercising their fundamental right to petition would not stand up in any fair Court or in the court of public opinion.

A complex maze of rules and laws has been installed to make petitioning more difficult.  Some politicians themselves have fallen victim to the abstract and arbitrary procedures by failing to satisfy the increasingly restrictive ballot access requirements.

It is now more difficult to exercise one’s petition right in Colorado than one’s voting right.  The legitimacy of mail in ballots is attested by the signature of the lone voter.  That same voter, to exercise the petition right, must similarly attest his own signature under the identical penalties of law.  But in addition, the petition circulator attests the signature and then the notary attests the circulator, and finally all are ascertained by the State.

Outrageous examples are abundant:  William is disqualified because he signed as Bill; another is disqualified because the name has too many characters for the computer; an entire petition is invalidated because the notary made an error in the date.  Famous Coloradoans have been invalidated — including a Speaker of the State House of Representatives and the Nuggets’ coach. Colorado has been embarrassed on the national stage more than any other state. Twice the U.S. Supreme Court has invalidated legislative attempts to limit petition rights.  Badge, circulator reporting, black ink signatures and blue petition book requirements are gone, thanks to the Supreme Court’s protection of the First Amendment right to petition.

Interestingly, the petition only gives people the right to vote. Evidently petition opponents subscribe to the Benito Mussolini philosophy of government, “Give me the right to nominate and you can vote for whomever you please.”

Elected representatives seem comfortable infringing on the Constitution and ignoring their oath of office.  In Article V of the Colorado Constitution the people delegate the authority to legislate to the General Assembly, but “reserve to themselves the power to propose laws and amendments.”  The petition is not a right that the political establishment can issue and rescind or throttle and unleash.  It is a “Reserved Power.”  The General Assembly’s authority cannot go beyond enabling and facilitating the process.

Historically, issue opponents carried the burden of challenging signature validity.  This is because the Constitution defines a signature as “prima facia evidence,” meaning that it is presumed valid until proven otherwise. But the legislature changed this, and made a law requiring that the Secretary of State check signatures.

Technicalities benefit opponents as long as an idea can be defeated by denying people the vote.  It is Colorado’s rigid, drop-dead requirements that cause controversy over technicalities.  The signature controversy would disappear, if there were reasonable cure and carry-over provisions.  The purpose of a petition is to demonstrate public interest. Does public interest subside if the petition is one signature short or one day late?

Expect continued attacks on the Initiative process, like this year’s Senate Bill. This bill would impose geographic distribution on petitions; the state would be divided into four zones, and petitions would need a certain number of signatures from each zone. The stated goal is to prevent Denver from imposing unpopular ideas on rural areas.

Though meritorious in intent, the proposed solution cannot succeed. First, this mechanism does not give veto power to rural areas.  Instead it adds another technicality.  Second, geographic distributions have previously been proposed and defeated.  Third, no one has proposed geographic distributions for legislative bills.  Fourth, if it is a good idea, it should also apply to elected officials?  Should the election of the Governor not count, if not popular enough in some area?  Fifth, petition defenders will bring an expensive legal challenge for restricting the process.  Sixth, geographic discrimination suggests that there is also a need for quotas on the basis of race, gender, party affiliation, physical disability, affluence, intellect, and more.

Dennis Polhill wrote this article for the Independence Institute, a free-market think tank in Golden, www.i2i.org.

This article, from the Independence Institute staff, fellows and research network, is offered for your use at no charge. Independence Feature Syndicate articles are published for educational purposes only, and the authors speak for themselves. Nothing written here is to be construed as necessarily representing the views of the Independence Institute or as an attempt to influence any election or legislative action.

Please send comments to Editorial Coordinator, Independence Institute, 14142 Denver West Pkwy., suite 185, Golden, CO 80401 Phone 303-279-6536 (fax) 303-279-4176 (email) webmngr@i2i.org

Opinion Editorial

By Dennis Polhill, Chris Baker

Great strides in the evolution of human existence are rare. One of those great strides occurred 223 years ago this month. Thomas Jefferson, the 33 year old delegate from Virginia to the Second Continental Congress put goose-quill to paper and etched words that will stand for all of eternity.to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

Perhaps an older author would have lacked the boldness to so directly challenge conventional thought. For centuries kings had the power to dictate ones fate at the snap of his fingers. No one had proposed the opposite: that the people were sovereign, hereditary kings were not.

The foundation principle upon which all democracy must be built, people-sovereignty, has become soundly entrenched in America. In Europe, Fascists declared democracy outmoded and obsolete for government in the twentieth century, vesting all power in their dictators. The Communists were more subtle and promised to restore democratic principles as soon as their benevolent dictator has adequately provided for the needs of all.

But in the U.S. when political systems broke down in the 1890s and government became the instrument by which privilege was issued to influential special interests, new political systems were invented that enlarged the principles of people-sovereignty, giving operational definition to ideals expressed by Jefferson, Madison and other Founders.

The right of citizens to directly propose and implement laws was included in the package. Other reforms, which were neither conceived nor implemented by politicians or political parties, included secret ballots, printed ballots, primary elections, and direct elections of U.S. Senators.

The right of citizen initiative formalized the petition rights drafted into the First Amendment of the U.S. Constitution by James Madison. The Initiative empowered citizens to propose laws to the ballot that legislators refused to address.

The self-confidence, pride and passion that motivates officials to first run for office sometimes becomes their enemy once elected. They are so committed to do civic good, that the notions of accountability and checks-and-balances seem to them unnecessary, if not insulting. Not surprisingly, instead of supporting petition rights, their actions frustrate and complicate the process, overlooking the fact that petitions are utilized only when the legislative process fails.

Sadly, many politicians claim that the exercise of votes by sovereign citizens are somehow more influenced by special interests than is the legislative process. Their words sound strangely reminiscent of King George III when he banned town meetings in the American Colonies to better regulate the government.

In 1992 Coloradoans grew tired of the free spending of their tax dollars by politicians, citizens used the initiative petition to propose the Taxpayers Bill of Rights which imposed limits. Not surprisingly, many in the ruling political establishment shrilly claimed that Colorado would collapse into economic chaos. Seven years later it is clear that alarmist assertions were clearly not accurate and it is more likely that TABOR contributed to Colorado having one of the strongest economies in the nation.

University of California Professor John Matsusaka performed extensive multiple regression analysis to conclude that states with petition rights have taxes that are 4% below the national average. This equates to $332 more disposable income annually for a family of four. Matsusaka also found that initiative states tended toward decentralization of spending decisions and there was less use of taxation as a tool for redistribution of wealth.

The initiative process does not always lead to less spending. Matsusaka found that the desire of politicians to tax and spend in the 1990s was reversed in the 1930s. Initiative states more rapidly responded to the will of the people by accelerating spending programs.

If the initiative process gives the people more of what they want, then isnt that the essence of democracy? Who among us is so astute that his views should be dictated to others? It would be wise for enlightened legislators to invest more thinking in the meaning of the message than in attacking the messenger and subverting the peoples sovereignty.

——————————————————————————–

Dennis Polhill is a Senior Fellow and Chris Baker is a Research Associate at the Independence Institute, a free-market think tank in Golden, http://i2i.org.

This article, from the Independence Institute staff, fellows and research network, is offered for your use at no charge. Independence Feature Syndicate articles are published for educational purposes only, and the authors speak for themselves. Nothing written here is to be construed as necessarily representing the views of the Independence Institute or as an attempt to influence any election or legislative action.
Please send comments to Editorial Coordinator, Independence Institute, 14142 Denver West Pkwy., suite 185, Golden, CO 80401 Phone 303-279-6536 (fax) 303-279-4176 (email)webmngr@i2i.org

By Dennis Polhill
UWSA-Colorado, Issues Chairman
for Denver Election Commission

PART I

“We must disenthrall ourselves from the past. Otherwise becomes a barrier to the future.”
– Abraham Lincoln

The American Civil War was the final desperate effort of agricultural society to survive against the onslaught of industrial society. The transition from first wave (agricultural civilization) to second wave (industrial civilization) transcended a 300 year period — roughly from 1600 to 1900 – and included social change so massive as to be beyond the human capacity to fully comprehend. Not only did this transition include the obvious Industrial Revolution and Civil War, but it included the Renaissance, the European scientific and cultural awakening and the American Revolution with its invention of democracy.

Common understanding of history gives us, at best, superficial understanding of these events: Feudalistic monarchs were rejected from France to Japan in successions of bloody civil wars. Most countries did not have the benefit of a profoundly deep intellectual and moral leader, like Thomas Jefferson. The norm after revolution was to have a decade of anarchy followed by a return to some form of authoritarian rule. Real democracy did not come to France for 100 years.
The systems of society must be compatible. To be compatible, they must be parallel. So as civilization moved to industry; all of its systems came to be factory-like. Labor was centralized; corporations became conglomerates; capital was centralized; fortunes were made for families such as Rockefeller,-Kennedy, Dupont, Carnegie, and Hughes; education become mass produced; cities grew; housing was massified; transportation was massified; the military became a machine; democracy was invented; political parties came into being; government became centralized and bureaucratic. Small farmers were dislocated. Artisans and craftsman were displaced. The farms that survived became factories. Dislocations produced disenfranchisement of group after group with the product labor riots, sabotage, violence, massacres, strikes, etc.

To say that the scale of social change associated with the transition from first wave to second wave was gigantic is an understatement.

Today upheaval, turmoil, and discontent can be witnessed at every turn. The scale of conflict appears to compound daily. Alvin Toffler defines the third wave as information civilization. Information civilization started about 1950 and its impacts have accelerated due to the introduction of the personal computer in 1980, and subsequently, Internet. Already a thousand individuals in the Denver Metro area have set up personal bulletin boards on their home computer (third generation Internet systems). It is predicted that Internet servers such as Compuserve, Prodigy and AOL will be obsolete and out of business in less than a decade. Some say that TV’s will be obsolete in five years. The transition to information civilization will be no less traumatic than to industrial society. Conceivably, the trauma will be greater because the time to adjust will be compressed. The fact that we are not more aware that we are in the midst of this giant change is simply a “forest for the trees” issue. One of the most difficult things in life is to maintain an objective perspective.

The move to information society cannot be stopped, slowed, or steered. Individuals and institutions with a vested interest in the second wave will do all in their power to resist change.
Industrial society gave both economic freedom and personal freedom to individuals. Information society will give even more economic and personal freedom to people.

Systems that were massified for industrial society now must be de-massified for information society. All of the systems that were made to look like factories must now be reshaped in order to respond to the unique needs and demands of individuals. Education, labor, capital and corporations must change. The entire thought basis upon which we have built regulation, legislation, political parties, and political processes is no longer relevant.

Attached is an article by Alvin Toffler that began to make some of this picture clear to me. This article motivated me to purchase and read all of his works. I recommend that you do the same. The third wave is the reason people are angry. The third wave is the reason UWSA exists and has clout. The third wave is the reason that the two parties are “out of it” – they have no clue and know not what to do. The third wave is why there is schizophrenia within UWSA – that is, 750 of the members clamor for a third party and 25o argue that a third party is not the solution. The solution is something bigger; something to be yet visualized and articulated.

PART II

Unfortunately, Toffler offers no specifics. The solutions are up to those who have the courage to innovate, to lead, and to implement. There is augmented risk to society in the fact that our political systems and leaders are lagging behind and are the least flexible systems of society. Instead of acknowledging that there is a problem (take taxation as an example) and leading, elected officials attack the people and/or citizen activists. This is 180 degrees in the wrong direction. Such conduct only increases the prospect of irresponsible acts by extremist kooks like Timothy McViegh. Because citizens enacted term limits and other controls when legislative bodies have a conflict of interest to act, elected officials moved to restrict the right of petition. This conduct will not get society where it needs to go. There will be more, not less, democracy in the future.

Four categories of change to come to political systems are minority power, semi-direct democracy, decision division, and PI-STEMS.

Minority Power – Majority rule is obsolete. It fails to account for impacts on minorities. It fails to measure how important an issue is to voters, what trade-offs people are willing to make, and whether the minority is injured beyond repair. It is likely that various forms of proportional representation, formalized systems of conflict resolution, and mechanisms that find and capture “efficient frontiers” in public policy will be invented.

Semi-direct Democracy – The form of democracy (representative democracy) invented by the Founding Fathers was appropriate for their time. At least 90a of the people were illiterate. The masses had to spend every waking moment in productive effort just to survive. Transportation and communication systems were primitive. Direct democracy carries the weight of “tyranny of the majority” (which is obsolete). Thus, semi-direct democracy is a moderate and reasonable middle ground reform. The initiative and referendum process should not be restricted or killed. It should be reformed, modified and expanded. Why do the people not have the right by petition to propose a bill, to modify a bill, to bind the vote of their legislator, to set up public hearings, to establish a legislative committee, to make a formal expression of priorities to the legislature either for policy action or for spending? Why do not the constituents of county and special district governments in Colorado have the right of I & R? These and other semi-direct democracy tools will come. When they do, the role of elected representatives will be vastly different.

Decision Division – Decision division is the collapse of centralized decision making. As the amount of information grows and as the pace of decision making necessarily accelerates, it becomes functionally impossible for decision making to be dominated by central control. Decisions that appropriately should be decentralized, delegated, and devolved, can be, will be, and must be reassigned. The Gulf War pitted a third wave army against a second wave army with predictably one sided results. As Don Shula once said, “people who know exactly what
to do, thrive under pressure.”

PI-STEMS – PI-STEMS are “Political Information Systems.” The role of the parties will be replaced by PI-STEMS. Soon the idea of a majority party will be obsolete. The information available to voters who wish to be informed about issues and candidates is slanted and appallingly deficient. Access to, information will be facilitated by various PI-STEMS, many through Internet. Voting records, ratings, etc. will soon be readily available. Competition between the two parties will motivate them to lead in the invention of some PI-STEMS that will, in turn, diminish the relevance of both parties. Already independent candidates and splinter third parties are mounting attacks against rules and procedures t-hat discriminate against their involvement in the process.

Of course, the scope of the ideas contained herein is trivial and in a few short years will appear as primitive as the Mayflower or the vacuum tube. But it is time that the discussion be opened and quickly expanded. We are on the verge of an opening of the democratic process: a second awakening of democracy. The appropriate conduct for political leaders at all levels is to be alert to the trend, to anticipate it, and to facilitate it. The sooner we can get in tune with the future, the sooner we can begin to share in the benefits the future will bring. Our generation has a destiny to reinvent democracy.

Opinion Editorial

By Dennis Polhill

It is about power. Power over the people. If the people have more power, then there must be less for elected officials and those who influence them. Conversely, if elected officials and their minions wish to have more power, then they must take power from the people.

In the 1995 general session of the state legislature, a resolution was passed to overhaul the initiative process. SCR-2 was originally worded to make it harder for constitutional amendments and easier for statutes to access the ballot by initiative. However, SCR-2 was hijacked via amendment and steered away from its original intent to improve the initiative process, Senator Ray Powers withdrew his name as the prime sponsor and voted against it. Normally, when a sponsor does this, his peers respect his wish and the bill dies. But the desire for power knows no bounds in the hearts of Colorado’s elected officials.

The legislature voted to put SCR-2 on the ballot in the next statewide election in November 1996. It would amend the Colorado Constitution with a simple majority so that all future amendments require a 60% super majority.

The evidence shows that the people are extremely responsible and discreet in exercising their right to vote. Only 33 of the 106 citizen initiated amendments have passed since the right of petition was formalized in Colorado in 1910 with the Initiative and Referendum process. In contrast 60 of 109 referred amendments were approved over the same time period. It is inconsistent for the legislature to argue that there are too many amendments. What they mean is that there are too many citizen initiated amendments. When one is in the business of power, even one citizen initiative is one too many. In the 84 years that the people have had the right to petition in Colorado, only 14 of the 106 amendments would have passed had the 60% rule been in place. In all likelihood the moneyed interests, who find it more convenient and less expensive to influence the legislature would pour money into opposition campaigns. This would force the pass rate to be even less than the 14 in 106. They may claim that the right to petition is still alive, but for all practical purposes it would be gone.

SCR-2 goes even further. It gives the legislature the authority to change citizen initiated statutes after 4 years. Current practice is that citizen initiated statutes are regarded as above legislated statutes. Thus, they are rarely and reluctantly changed. SCR-2 would give the legislature license to dabble, further infringing on the people’s right of petition.

The legislature’s disdain for petitions has a long history and is well known. The process is further restricted nearly every year. The U.S. Supreme Court ruled unanimously against the State of Colorado for such infringement in 1988.

The right of referendum has been co-opted since 1932. Once the legislature passes a law the people have the right to petition to put the law to a vote of the people, except when there is a statewide emergency. So, the legislature simply declares every law they pass to be an emergency.

Aside from the abusive conduct of the legislature there are a few compelling reasons to preserve the right of petition. The mere prospect of its use encourages better legislation. It provides a degree of accountability of legislators and a mechanism to deal with the conflict of interest and hot potato issues. Voter interest, competence and participation increases. At least four independent studies have found that voter turnout is about 10% higher when issues are on the ballot. It is a right that belongs to the people and for which the Founding Fathers pledged “our lives, our fortunes, and our sacred honor.”

It has always been and always will be that those who control power want to preserve it and want more. This has been the struggle of humanity since we first stood upright. Those who dislike the rights of petition are elected officials, political parties, and established special interests (big money, big business, and big labor.)

As the Declaration of Independence states, “A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a Free People.” Keep these words in mind the next time you vote for your state legislator. Term limits on state legislators take effect in 1998. Can we wait until 1998, or shall we fix the legislature in 1996?

Dennis Polhill is a Senior Fellow at the Independence Institute, a think tank in Golden Colorado.

THE

CONSTITUTIONAL

CONTROVERSY

OVER

FEDERAL GOVERNMENT

INVOLVEMENT

IN

TRANSPORTATION

 

By Dennis Polhill

Research assistance by

Dominque Tarpey and Steve McWhirter

 

 

 

 

Presented at

American Legislative Exchange Council

Seattle, Washington

July 2004

 

 

 

 

 

At least 9 Presidents of the United States

issued public statements to Congress

indicating that the U.S. Constitution

required amending before

the Federal government could

become involved in Transportation policy.

In 2004 the question is rarely raised.

 

 

INTRODUCTION

The controversy over whether the Federal government is permitted by the Constitution to be involved in transportation improvements began soon after adoption of the Constitution.

At least nine United States Presidents very strongly believed that the enumerated powers in Article 1, Section 8 of the U.S. Constitution excluded Federal involvement in transportation improvements.  Evidence of their convictions is expressed in unmistakable terms in their veto messages.

CUMBERLAND ROAD – An ambiguity that emerged from early American history is the Cumberland Road.   The first Federal funded highway connected the head of navigation on the Potomac River (Cumberland, Maryland) to the head of navigation on the Ohio River (Wheeling, West Virginia).  Construction was authorized by Congress on March 29, 1806.  Contracts were issued in 1811, but the War of 1812 interfered and construction did not begin until 1815 and was finished in 1818.  America’s eagerness to solidify its claims on western lands was in conflict with Constitutional limitations on Federal authority.

In 1803 Congress passed the 5 percent law.  Five percent of the revenue generated from the sale of Federally owned public lands was deposited into a fund.  Funds generated from 60% of the five percent (three percent) were granted to the States upon admission to the Union for roads, canals, levees, river improvements and schools.  Funds generated from the remainder, two percent, were dedicated for constructing roads “to and through” the West.  Bitter debate ensued when the two percent funds were allocated in 1806 to build the Cumberland Road.  Jefferson chose expediency by not vetoing the bill, but issued his important message[1] to Congress later in 1806 suggesting that the Constitution should be amended to allow Federal involvement in “internal improvements.”

The Cumberland Road became so heavily used that it fell into disrepair.  When Congress sought to again intervene by establishing tolls for maintenance in 1822, Monroe issued his only veto, arguing that Federal collection of tolls implied a power of jurisdiction, that was not granted to the Federal government by the Constitution.  By 1835 the Cumberland Road was known as the National Road and extended into Illinois.  The dilemma was resolved when control was devolved to the respective States that operated it as a toll facility until toll roads were bankrupted by railroad competition.

PRESIDENTIAL ACTIONS REGARDING ENUMERATED POWERS

JEFFERSON – In his December 2, 1806 message to Congress, President Thomas Jefferson considered the problem of a revenue surplus.  Reduction of the import duty on salt would give “advantage to foreign over domestic manufactures.”  Jefferson recommended “continuance and application to the great purposes of the public education, roads, rivers, canals, and such other objects of public improvement as it may be thought proper to add to the constitutional enumeration of federal powers.”  That is, Jefferson favored acceleration of Federal sponsorship, but was of the view that the U.S. Constitution must be amended to allow it.

Jefferson commented again on this topic in a February 14, 1824 thank you letter to Robert J. Garnett.  Garrett had given a copy of a book by Colonel Taylor, “New Views of the Constitution.”  The letter mentioned “the three great questions of amendment:” presidential term limits, popular election of the president, and giving to Congress the power over internal improvement on the condition that each State’s federal proportion of the moneys so expended, shall be employed in the State.

MADISON – James Madison, author of the U.S. Constitution, succeeded Jefferson as President in 1808.  In Madison’s last official act as President he issued a veto on March 3, 1817.  The bill, passed in February 1817, provided for setting aside the Bank bonus of $1,500,000 as a permanent fund for internal improvements.  To circumvent the constitutional prohibition, the bill language cleverly mixed rhetoric including “internal commerce,” “general welfare,” and “common defense.”  Madison replied specifically to each of these claims of authority.

Madison favored the policy but vetoed the bill as unconstitutional, “I am constrained, by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States.”[2]

He refers Congress to the Constitution, “The legislative powers vested in Congress are specified and enumerated in the 8th section of the first article.”  He adds, “The power to regulate commerce among the several States, cannot include a power to construct roads … without a latitude of construction departing from the ordinary import of the terms.”

“To refer to the power in question as ‘common defense and general welfare,’ would be contrary to the established and consistent rules of interpretation … such a view of the Constitution would have the effect of giving to Congress a general power of legislation … It would have the effect of subjecting both the Constitution and laws of the several States, in all cases not specifically exempted, to be superseded by laws of Congress.”  Finally, Madison points out “the assent of the States … cannot confer the power.”  In other words the states must agree by amending the Constitution, but may not agree to ignore its structurally imposed limitations on Congressional powers.  In the final paragraph Madison asserts, “that the permanent success of the Constitution depends on a definite partition of powers between the General and the State government, and that no adequate land-marks would be left by the constructive extension of the powers of Congress, as proposed in the bill.”

Madison’s veto message closed with sympathy for the policy objective, “I am not unaware of the great importance of roads … and hope that (the bill’s) beneficial objects may be attained …”

MONROE – James Monroe was elected in 1816 to succeed Madison.  His only veto was issued on May 4, 1822.  Monroe, like Madison and Jefferson, approved of the policy, but vetoed the Cumberland Road Bill as unconstitutional, “Congress does not possess the power under the Constitution to pass such a law.”[3]  Monroe reiterated Madison’s points, “This power can be granted only by an amendment to the Constitution.”  In addition to the indirect claims of authority refuted in Madison’s veto (commerce, general welfare and common defense), the Cumberland Road Bill claimed Congressional authority under post roads, the power to make all laws necessary and proper for carrying into execution all the powers vested by the Constitution in the government, and the power to make all needful rules and regulations respecting the territory and other property of the United States.  Monroe, “it cannot be derived from either of those powers, nor from all of them united, and as a consequence it does not exist.”  He closes by suggesting that “Congress (exercise) the propriety of recommending to the states an amendment to the Constitution.”  Monroe’s veto message is brief, less than two pages in the Congressional Record, but he elaborates exhaustively in his May 4, 1822 “Views of the President of the United States on the Subject of Internal Improvements.”  This document is nearly 30,000 words, is not part of the Congressional Record.[4]

JACKSON -Congress became more aggressive.  Andrew Jackson (President 1828-1836) vetoed four transportation bills as unconstitutional.  Like his predecessors he favored federal participation in internal improvements, but understood the Constitution as not allowing, and therefore prohibiting, it.  Jackson offered support to advancing the necessary Constitutional amendment by suggesting public agreement made the amendment possible, “If it be the wish of the people that the construction of roads and canals should be conducted by the Federal Government, it is not only highly expedient, but indispensably necessary, that a previous amendment of the Constitution, delegating the necessary power, and defining and restricting its exercise with reference to the sovereignty of the States, should be made.”  In other words, public consent made an amendment achievable and preservation of both the Constitution and State sovereignty requires it.  Congress elected to not advance the suggested Constitutional Amendment.

The Maysville, Washington, Paris, and Lexington Turnpike Road Company was vetoed as “unconstitutional”[5] on May 27, 1830.  This is one of the longer veto messages consuming 10 pages (over 6,000 words) in the House Journal.  Jackson reviewed the history of his predecessors on the question and summarized the arguments on both sides of the issue.  In the end he agreed with his predecessor-Presidents, “When an honest observance of Constitutional compacts cannot be obtained from communities like ours, it need not be anticipated elsewhere; and the cause in which there has been so much martyrdom, and from which so much was expected by the friends of liberty, may be abandoned, and the degrading truth, that man is unfit for self government, admitted.  And this will be the case, if expediency be made a rule of construction in interpreting the Constitution … No good motive can be assigned for the exercise of power by the constituted authorities, while those for whose benefit it is to be exercised have not conferred it.”

Jackson’s Maysville veto message reiterates language from the Monroe veto message supplement, which evolved into another criterion, “purely local character,” that appears in subsequent vetoes in various forms.  This is discussed in a subsequent section.

The Washington Turnpike Road Company was vetoed as “unconstitutional”[6] on May 31, 1830.

Jackson’s next “unconstitutional” veto was of “An Act to authorize subscription for stock in the Louisville and Portland Canal Company” passed near adjournment and he provided the veto message to Congress on December 7, 1830.  Again he refers Congress to the Maysville veto for edification.  “The practice of thus mingling the concerns of the government with those of the States or of individuals, is inconsistent with the object of its institution.  The successful operation of the federal system can only be preserved by confining it to the few and simple, but yet important objects for which it was designed.  A different practice, if allowed to progress, would ultimately change the character of this Government, by consolidating into one the General and State Governments, which were intended to be kept forever distinct.”[7]

Jackson’s last transportation veto as “unconstitutional” came on December 2, 1834 of “An Act to improve the navigation of the Wabash River.”  “I cannot refrain from expressing my increasing conviction of its extreme importance, as well in regard to its bearing upon the maintenance of the Constitution … the dangers of unconstitutional acts which, instead of menacing the vengeance of offended authority, proffer local advantages, and bring in their train the patronage …in my opinion, the Constitution did not confer upon (Congress) the power to authorize the construction of ordinary roads and canals … I could not consider myself as discharging my duty to my constituents in giving the Executive sanction to any bill containing such an appropriation.”[8]

TYLER – John Tyler vetoed as “unconstitutional” “An Act making appropriations for the improvement of certain harbors and rivers,” on June 11, 1844.  “At the adoption of the Constitution, each State was possessed of independent sovereignty … (which) expressly reserve(d) to the States all powers not delegated … (Congressional) power, in order to be legitimate must be clearly and plainly incidental to some granted power, and necessary to its exercise.  To refer it to the head of convenience or usefulness would be to throw open the door to a boundless and unlimited discretion and to invest Congress with an unrestrained authority.”[9]

Tyler also pocket-vetoed “An Act making appropriations for the improvement of the navigation of certain rivers” on January 28, 1845, but issued no veto message, suggesting that he had said all that he wished to say on the issue in his June 11, 1844 veto message.

POLK – On August 3, 1946 James Polk delivered a veto message to Congress for “An Act making appropriations for the improvement of certain harbors and rivers.”  The bill appropriated $1,378,450 to more than 40 objects of improvement.  Because of the “local character” of these projects, Polk said, “it is difficult to conceive … what practical constitutional restraint can hereafter be imposed … The Constitution has not, in my judgment, conferred upon the federal government the power to construct works of internal improvements … The approved course of the government, and the deliberately expressed judgment of the people, have denied the existence of such a power under the Constitution.  Several of my predecessors have denied its existence in the most solemn forms … The general proposition that the federal government does not possess this power is well settled.”[10]  Polk also advances a test for constitutionality originally laid down by Madison, “Whenever a question arises concerning a particular power, the first question is whether the power be expressed in the Constitution.  If it be, the question is decided.  If it be not expressed, the next inquiry must be, whether it is properly an incident to an expressed power, and necessary to its execution.  If it be, it may be exercised by Congress.  If it be not, Congress cannot exercise it.”

Polk issued a second veto of a transportation bill on December 15, 1847 of “An Act to provide for continuing certain works in the Territory of Wisconsin, and for other purposes.”  Polk’s first objection was the bill’s misleading title.  It passed on the last day of a session and appropriated $6,000 for “continuing” work, while $500,000 was appropriated for numerous new projects.  The veto message opens by referring Congress to his prior veto message of August 3, 1946 and referenced to comments found in the veto messages of Madison, Monroe, and Jackson.  Polk also quotes Jefferson’s 1806 message to Congress recommending “an amendment to the Constitution.”  Restating the obvious Polk writes, “No express grant of this power is found in the Constitution.”[11]

PIERCE – Franklin Pierce issued seven transportation vetoes, more than any other President.  “An Act making appropriations for the repair, preservation, and completion of certain public works theretofore commenced under the authority of law” was vetoed as “unconstitutional” on August 4, 1854.  This bill is “not, in my judgment, warranted by any safe or true construction of the Constitution.”[12]

His first veto message was brief because the bill reached him in the “expiring hours” of a session, but Pierce elaborates at length in his December 30, 1854 (read on January 2, 1855) message to Congress.  He recites the 10th Amendment to the Constitution as further evidence to clarify the intended specificity of the enumerated powers listed in Article 1, Section 8.  He reasoned, “If the framers of the Constitution, wise and thoughtful men as they were, intended to confer on Congress the power over a subject so wide as the whole field of internal improvements, it is remarkable that they did not use language clearly to express it.”  In response to the assertion that language in the Constitution’s Preamble inferred a power vested Congress with authority over internal improvements, he wrote, “To assume that anything more can be designed by the language of the Preamble would be to convert all the body of the Constitution.”

On March 3, 1855, Pierce vetoed “An Act making appropriations for transportation of the United States mail by ocean steamer and otherwise, during fiscal years ending the 30th of June 1855 and the 30th of June 1856.”  In addition to citing that the appropriation was both a bad spending priority and a poor policy, Pierce stated that the bill was “of doubtful compatibility with the Constitution.”[13]

Congress persisted by passing “An Act to remove obstructions to navigation in the mouth of the Mississippi River at the Southwest pass and Pass a l’Outre.” It was vetoed on May 19, 1856, with “my views were exhibited in full on the subject … the Constitution does not confer on the general government any express powers to make such appropriations.”[14]

“An Act making an appropriation for deepening the channel over the St. Clair flats, in the State of Michigan” was vetoed on May 19, 1856 as violating the Constitutional “restriction on the power of Congress.”[15]

“An Act making an appropriation for deepening the channel over the flats of the St. Mary’s River, in the State of Michigan” was vetoed on May 22, 1856, as “not a necessary means for execution of any of the expressly granted powers of the federal government.”[16]

“An Act for continuing the improvement of the Des Moines rapids, in the Mississippi River” was vetoed on August 11, 1856.  For elaboration Congress was referred to his prior veto messages.[17]

“An Act for the improvement of the navigation of the Patapsco River, and to render the port of Baltimore accessible to the war steamers of the United States” was vetoed on August 14, 1856.  Pierce again referred Congress to his prior veto messages.[18]

BUCHANAN – President James Buchanan vetoed “An Act making an appropriation for deepening the channel over the St. Clair flats, in the State of Michigan” on February 1, 1860, as “a violation of the spirit of the Constitution.”  Buchanan declined to provide a protracted reply, “The question of the Constitutional power of Congress to construct internal improvements within the States has been so frequently and so elaborately discussed that it would seem useless on this occasion to repeat or to refute at length arguments which have been so often advanced.”  Suffice it to say, he agreed with his predecessors.  He specifically refers Congress to the Polk veto of December 15, 1847 and offers, “The corrupting and seducing money influence exerted by the general government in carrying into effect a system of internal improvements might be perverted to increase and consolidate its own power to the detriment of the rights of the States.”[19]

ARTHUR – Chester A. Arthur was the last President to unambiguously express his Constitutional views in a veto message.  On August 1, 1882 he vetoed, “An Act making appropriations for the construction, repair, and preservation of certain works on rivers and harbors, and for other purposes.”  “I regard such appropriations of the public money as beyond the powers given by the Constitution to Congress and the President.  I feel the more bound to withhold my signature from the bill because of the peculiar evils which manifestly result from this infraction of the Constitution.”[20]

PRESIDENTIAL VETO SUMMARY – This research of transportation vetoes finds that eight president vetoed 19 transportation bills as unconstitutional violations of enumerated powers.  Jefferson provided the same language in his December 2, 1806 message leaving no doubt of his views on this question (Jefferson issued no vetoes during his presidency).  Links to Senate and House Journals where the exact and complete language of the respective messages may be reviewed are provided in Appendix A.

COOPERATION BETWEEN THE BRANCHES

The most significant power of a President is the power to veto legislation.  Thus, a veto represents the most solemn and sacred act exercised by a President.  A veto may be advanced for any reason or no reason at all.  Most are due to disagreement over scope, methods, nature or priorities of legislation; or philosophical differences.

All Presidents wisely strive to sustain a positive and constructive working relationship with the legislative branch.  Clearly, all of the nine veto-Presidents (Jefferson, Madison, Monroe, Jackson, Tyler, Polk, Pierce, Buchanan, and Arthur) had the option to not use confrontational language by issuing their vetoes on other-than-constitutional grounds.  But they did not, inferring both a powerful strength of conviction and an enormous sense of obligation to express their Constitutional understandings.  That many also exercised these vetoes contrary to their own preference for policy, strengthens the message in their words.

Each of the above vetoes in effect accused members of Congress of ignoring their oaths of office to uphold the Constitution, of failing to comprehend the Constitution’s meaning and intent, or of being unwilling to abide by clearly enumerated Constitutional limitations.  Such accusations are neither trivial nor conducive to a positive working relationship.  Their principled stances provided no rewards.

GENERAL OR LOCAL BENEFIT – The views of the nine veto-Presidents above as represented by unmistakable language directed at Congress are unequivocal.  The specific views of other Presidents are less clearly decipherable from their veto message language.

The Jackson Maysville veto advanced Monroe language that evolved into criterion that appears in several subsequent vetoes in some form, “general welfare” of “purely local character” and eventually became the slippery slope that yielded current Federal involvement.  Did the vetoes of the subsequent Presidents seek to be more subtle and less offensive with their rhetoric toward Congress?  Did these words mean to say with less insult to the integrity of Congress, “unconstitutional under enumerated powers?”

This research does not attempt to comprehensively inventory all vetoes with this ambiguous language.  The cited veto messages sometimes included words like, “for the benefit of particular localities”, “of local interest”, or “lacking a general benefit.”  A partial list of such vetoes follows:

  • Benjamin Harrison, April 29, 1890 “a matter of local interest”
  • Benjamin Harrison, June 4 1890 “the public needs do not suggest or justify such an expenditure”
  • Grover Cleveland, May 23, 1888 “(not) necessary for the transaction of public business”
  • Grover Cleveland, May 29, 1896 “for the benefit of limited localities”
  • Grover Cleveland, July 7, 1896 “I (am not) satisfied that the legislation proposed is demanded by any exigency of the public welfare”
  • Theodore Roosevelt, March 3, 1903, “for local improvement”
  • Woodrow Wilson, July 11, 1918 “not in the public interest”
  • Herbert Hoover, July 11, 1932 “Fraught as it is with possibilities of misfeasance and special privileges”
  • Franklin D. Roosevelt, June 11, 1940 “the public interests are not such”
  • Franklin D. Roosevelt, August 2, 1941 “benefits of such expenditures are dependent upon local enforcement”

 

A Calvin Coolidge veto on May 18, 1928 comes close but does not quite state “local interest” as his reason, “Having in mind the increasing ability of the States to finance road construction due to the general adoption of the gasoline tax and the increase in revenue from this source which would accrue to States from roads.”  The State gasoline tax was a comparatively new innovation.  A Federal gasoline tax was, as yet, nonexistent.  Coolidge was, in effect, arguing against a Federal program of taxation and redistribution, the net effect of which would have advanced Federal involvement in State transportation decisions.

 

SEPARATION OF POWERS – As adherence to the Constitution slipped further from public perception, Congress acted to enlarge its power by including in legislation that Department Secretaries report directly to Congressional Committees.  Presidents objected to this infringement in another series of vetoes.  These are on Constitutional grounds, but because the limitations of Article 1, Section 8 seem to have been largely forgotten, the basis is encroachment on Executive Powers by the Legislative Branch.  These illustrate Congress’ insatiable thirst for more power.

  • Dwight D. Eisenhower, July 16, 1956 “violate the fundamental constitutional principle of separation of powers”
  • Lyndon B. Johnson, June 4, 1965 “undesirable and improper encroachment by the Congress and its committees into the area of executive responsibilities”
  • Lyndon B. Johnson, August 21, 1965 “repugnant to the Constitution (by) encroachment (on) the separation of powers between the legislative and executive branches”
  • Richard Nixon, April 5, 1973 “conflicts with the allocation of executive power to the President”
  • Jimmy Carter, July 10, 1978 “directs Secretaries to report to congressional committees”

OPENING THE FLOODGATES

INTERSTATE HIGHWAY SYSTEM – On June 29, 1956 President Eisenhower signed into law the “National System of Interstate and Defense Highways.”  Title II, the Highway Revenue Act, was its financial component that raised the Federal gasoline tax from 1 cent (implemented in 1932) to 2 cents (raised to 3 cents in 1958 and to 4 cents in 1959) per gallon and was scheduled to expire on June 30, 1972.  The 40,000 miles of new highways would be State owned and operated.  The Federal role was fiscal, to collect and redistribute revenues to expedite construction by States.  Conformity of construction among the States was an important goal of the legislation.  The Clay Committee estimated the total cost at $27 billion.  The bill authorized $25 billion.  By 1958 the system had increased to 41,000 miles at a total estimated cost of $41 billion.  In 1966 the Bureau of Public Roads became the U.S. Department of Transportation.  The Interstate System was completed in 1982.  In 1976 the Federal gasoline tax was extended and in 1990 increased from 9 cents to 14 cents.  Currently the Federal gasoline tax, at 18.4 cents, generates about $40 billion per year.

GROWTH OF PORK – In “Breach of Trust” former U.S. Representative Thomas Coburn of Oklahoma defines pork as “one member of Congress determines where the money is to be spent.”  Congress uses the friendlier label: “earmark.”  By this definition Federal Transportation Legislation contained only ten pork projects in 1982 at a cost of $386 million.  The 1987 bill contained 150 pork projects for $1,300 million, motivating a Reagan veto.   By 1991 the number of projects had grown to 539, at $6,200 million and the 1998 bill contained “a record shattering 1,467 pork projects for $9,500 million.”  “Shuster consistently argued that setting aside 5 percent … was a very reasonable thing to do.”  The debate had moved quite considerably afar from the points so eloquently articulated by Madison, and others.

Coburn elaborates on how these projects are generated by vote-buying.  Maverick Congresspersons who say, “My vote is not for sale” are punished.  The going rate of $15 million for a vote for the 1998 bill was corroborated by several Congresspersons.  House Transportation Chairman, Shuster, lividly denied the accusations as “McCarthyism.”  But Budget Committee Chairman, Kasich, called the bill an “abomination,” introducing a short-lived amendment to the bill that would reduce the federal gasoline tax to 4 cents per gallon.

TRUST FUND HISTORY – The Reason Public Policy Institute Policy Study 216[21] by Bob Poole in 1996 reviewed the history of the Federal Highway User Trust Fund, seeking to account for all costs in order to reveal a more accurate listing of donor versus recipient states aggregated over the life of the Fund.  Conventional wisdom is that 21 states are donor states.

RPPI reasonably underestimated the costs of Federal administration, mandates, delays and distortion of priorities.  This exercise revealed that the number of donor states is 33, 12 more than are generally considered donor states.  Because RPPI conservatively estimated and because other costs exist that were not included in the analysis such as the significant resources state and local governments use lobbying to recover “free money,” 33 donor states is an understatement.  In a yet-to-be-released CATO study, author Gabriel Roth, estimates that at least 42 states are donor states.  Thus, few states receive more money than they pay into the Trust Fund and the vast majority of states are injured by the continued movement of funds through the D.C. money-filter.  The value of money is not enhanced when it goes thru D.C.  A listing of the donor and recipient states based on RPPI’s 1996 research, along with their current representation in Congress is provided in Appendix B.

CONCLUSION – Notwithstanding, the Constitutional foundation, the historical evolution and the political promises, the trend toward higher levels of Federal waste, inefficiency and corruption should disturb all who care about good government.  This is exactly what the Polk veto of 1860 predicted, “The corrupting and seducing money influence exerted by the general government in carrying into effect a system of internal improvements might be perverted to increase and consolidate its own power to the detriment of the rights of the States.”

  • The Federal gasoline tax was created as a temporary tax to construct the Interstate Highway System.
  • The Federal gasoline tax has achieved it mission.
  • The Interstate Highway System was completed in 1982.
  • Since 1982 the number of “pork” projects has grown exponentially.
  • Continuation of the Federal gasoline tax is injuring transportation in at least 33 states.
  • The states injured by continuation of the Federal gasoline tax represent 88% of the U.S. House membership.
  • The Founders and several successor presidents stated that the U.S. Constitution does not delegate to the Federal government the authority to be involved in transportation improvements.
  • The Constitution has not been amended to allow Federal involvement in transportation.
  • All of the indirect claims of authority by Congress have been answered by the various presidential vetoes of proposed transportation legislation.
  • The warnings that ignoring the limits imposed by the Constitution would open the door to unbounded authority and centralization by Congress have come true.
  • The warning that money would become “corrupting and seducing” has come true.
  • The warning that ignoring the limits imposed by the Constitution would subjugate the states to Congress has come true.

State Departments of Transportation are sufficiently prepared to handle the added responsibility of prioritizing and managing their own transportation systems.  Devolving to the states responsibility for transportation is not only the right thing to do, but will result in improved fiscal efficiency and accountability.  After all, this is how the problem of the Cumberland Road was reconciled in 1835.  The era of massive transportation construction has ended.  The future challenge is to operate and maintain the world’s foremost transportation system with efficiency.  This cannot be achieved well with continuing top-down mandates.  Rather, devolution and liberalization of Federal restrictions will free those with the most innovative and creative leadership solutions to act.  There is a time to lead and a time to follow.  Less Federal involvement in transportation will facilitate more leadership in some, if not all 50, states, which will help America to be more competitive in this time of global competition for markets and jobs.  We owe it to the future to devolve transportation responsibilities to the states where they rightfully belong.

 

 

 

APPENDIX – A

 

LINKS TO CONGRESSIONAL RECORD

REGARDING ENUMERATED POWER

 

President

Bill

Date

Reference Location

Link to Reference Location

Jefferson

N/A

Dec. 2 1806

Senate Journal

http://lcweb2.loc.gov/cgi-bin/ampage?collId=llac&fileName=016/llac016.db&recNum=3http://lcweb2.loc.gov/cgi-bin/ampage?collId=llac&fileName=016/llac016.db&recNum=4http://lcweb2.loc.gov/cgi-bin/ampage?collId=llac&fileName=016/llac016.db&recNum=5

Madison

H.R. 29

March 3, 1817

House Journal

 

http://lcweb2.loc.gov/ll/llhj/010/1400/14170534.tif http://lcweb2.loc.gov/ll/llhj/010/1400/14180535.tif http://lcweb2.loc.gov/ll/llhj/010/1400/14190536.tif http://lcweb2.loc.gov/ll/llhj/010/1400/14200537.tif

Monroe

H.R 50

May 4, 1822

House Journal

 

http://lcweb2.loc.gov/ll/llhj/015/0500/05590560.tif http://lcweb2.loc.gov/ll/llhj/015/0500/05600561.tif

Monroe

May 4, 1822

Veto Supplement Not in Congressional

Record

 

Jackson

S. 27

May 31, 1830

Senate Journal

 

http://lcweb2.loc.gov/ll/llsj/019/0300/03600360.tif http://lcweb2.loc.gov/ll/llsj/019/0300/03610361.tif http://lcweb2.loc.gov/ll/llsj/019/0300/03620362.tif http://lcweb2.loc.gov/ll/llsj/019/0300/03630363.tif http://lcweb2.loc.gov/ll/llsj/019/0300/03640364.tif http://lcweb2.loc.gov/ll/llsj/019/0300/03650365.tif http://lcweb2.loc.gov/ll/llsj/019/0300/03660366.tif http://lcweb2.loc.gov/ll/llsj/019/0300/03670367.tif http://lcweb2.loc.gov/ll/llsj/019/0300/03680368.tif http://lcweb2.loc.gov/ll/llsj/019/0300/03690369.tif

Jackson

H.R. 285

May 27, 1830

House Journal

 

http://lcweb2.loc.gov/ll/llhj/023/0700/07330733.tif http://lcweb2.loc.gov/ll/llhj/023/0700/07340734.tif http://lcweb2.loc.gov/ll/llhj/023/0700/07350735.tif http://lcweb2.loc.gov/ll/llhj/023/0700/07360736.tif http://lcweb2.loc.gov/ll/llhj/023/0700/07370737.tif http://lcweb2.loc.gov/ll/llhj/023/0700/07380738.tif http://lcweb2.loc.gov/ll/llhj/023/0700/07390739.tif http://lcweb2.loc.gov/ll/llhj/023/0700/07400740.tif http://lcweb2.loc.gov/ll/llhj/023/0700/07410741.tif http://lcweb2.loc.gov/ll/llhj/023/0700/07420742.tif

Jackson

H.R.304

Dec. 7, 1830

House Journal

 

http://lcweb2.loc.gov/ll/llhj/024/0000/00150015.tif http://lcweb2.loc.gov/ll/llhj/024/0000/00160016.tif http://lcweb2.loc.gov/ll/llhj/024/0000/00170017.tif http://lcweb2.loc.gov/ll/llhj/024/0000/00180018.tif http://lcweb2.loc.gov/ll/llhj/024/0000/00190019.tif http://lcweb2.loc.gov/ll/llhj/024/0000/00200020.tif http://lcweb2.loc.gov/ll/llhj/024/0000/00210021.tif http://lcweb2.loc.gov/ll/llhj/024/0000/00220022.tif http://lcweb2.loc.gov/ll/llhj/024/0000/00230023.tif http://lcweb2.loc.gov/ll/llhj/024/0000/00240024.tif http://lcweb2.loc.gov/ll/llhj/024/0000/00250025.tif

Jackson

S. 97

Dec. 2, 1834

Senate Journal

http://lcweb2.loc.gov/ll/llsj/024/0000/00230023.tif http://lcweb2.loc.gov/ll/llsj/024/0000/00240024.tif http://lcweb2.loc.gov/ll/llsj/024/0000/00250025.tif http://lcweb2.loc.gov/ll/llsj/024/0000/00260026.tif http://lcweb2.loc.gov/ll/llsj/024/0000/00270027.tif

Tyler

H.R. 203

June 11, 1844

House Journal

 

http://lcweb2.loc.gov/ll/llhj/039/1000/10811081.tif http://lcweb2.loc.gov/ll/llhj/039/1000/10821082.tif http://lcweb2.loc.gov/ll/llhj/039/1000/10831083.tif

Tyler

H.R.541

Jan. 28, 1845

Pocket

No veto message.  Tyler’s previous veto on constitutional grounds infers that this bill might have been vetoed on similar grounds.

Polk

H.R.18

Aug. 3, 1846

House Journal

 

http://lcweb2.loc.gov/ll/llhj/041/1200/12091209.tif http://lcweb2.loc.gov/ll/llhj/041/1200/12101210.tif http://lcweb2.loc.gov/ll/llhj/041/1200/12111211.tif http://lcweb2.loc.gov/ll/llhj/041/1200/12121212.tif http://lcweb2.loc.gov/ll/llhj/041/1200/12131213.tif http://lcweb2.loc.gov/ll/llhj/041/1200/12141214.tif

Polk

H.R.84

Dec. 15, 1847

House Journal

 

http://lcweb2.loc.gov/ll/llhj/043/0000/00820082.tif http://lcweb2.loc.gov/ll/llhj/043/0000/00830083.tif http://lcweb2.loc.gov/ll/llhj/043/0000/00840084.tif http://lcweb2.loc.gov/ll/llhj/043/0000/00850085.tif http://lcweb2.loc.gov/ll/llhj/043/0000/00860086.tif http://lcweb2.loc.gov/ll/llhj/043/0000/00870087.tif http://lcweb2.loc.gov/ll/llhj/043/0000/00880088.tif http://lcweb2.loc.gov/ll/llhj/043/0000/00890089.tif http://lcweb2.loc.gov/ll/llhj/043/0000/00900090.tif http://lcweb2.loc.gov/ll/llhj/043/0000/00910091.tif http://lcweb2.loc.gov/ll/llhj/043/0000/00920092.tif http://lcweb2.loc.gov/ll/llhj/043/0000/00930093.tif http://lcweb2.loc.gov/ll/llhj/043/0000/00940094.tif http://lcweb2.loc.gov/ll/llhj/043/0000/00950095.tif http://lcweb2.loc.gov/ll/llhj/043/0000/00960096.tif http://lcweb2.loc.gov/ll/llhj/043/0000/00970097.tif http://lcweb2.loc.gov/ll/llhj/043/0000/00980098.tif

Pierce

H.R. 392

Aug. 4, 1854

House Journal

 

http://lcweb2.loc.gov/ll/llhj/049/1300/13401340.tif http://lcweb2.loc.gov/ll/llhj/049/1300/13411341.tif

Pierce

H.R. 595

Mar. 3, 1855

House Journal

 

http://lcweb2.loc.gov/ll/llhj/050/0500/05410541.tif http://lcweb2.loc.gov/ll/llhj/050/0500/05420542.tif http://lcweb2.loc.gov/ll/llhj/050/0500/05430543.tif

Pierce

S. 1

May 19, 1856

Senate Journal

 

http://lcweb2.loc.gov/ll/llsj/047/0300/03410341.tif http://lcweb2.loc.gov/ll/llsj/047/0300/03420342.tif

Pierce

S. 2

May 22, 1856

Senate Journal

 

http://lcweb2.loc.gov/ll/llsj/047/0300/03510351.tif http://lcweb2.loc.gov/ll/llsj/047/0300/03520352.tif

Pierce

S. 14

May 19, 1856

Senate Journal

 

http://lcweb2.loc.gov/ll/llsj/047/0300/03400340.tif

Pierce

S. 53

Aug. 14, 1856

Senate Journal

 

http://lcweb2.loc.gov/ll/llsj/047/0600/06080608.tif

Pierce

H.R. 12

Aug. 11, 1856

House Journal

 

http://lcweb2.loc.gov/ll/llhj/052/0400/04921420.tif

Buchanan

S. 321

Feb. 2, 1860

Senate Journal

 

http://lcweb2.loc.gov/ll/llsj/051/0100/01140114.tif http://lcweb2.loc.gov/ll/llsj/051/0100/01150115.tif http://lcweb2.loc.gov/ll/llsj/051/0100/01160116.tif http://lcweb2.loc.gov/ll/llsj/051/0100/01170117.tif http://lcweb2.loc.gov/ll/llsj/051/0100/01180118.tif http://lcweb2.loc.gov/ll/llsj/051/0100/01190119.tif http://lcweb2.loc.gov/ll/llsj/051/0100/01200120.tif http://lcweb2.loc.gov/ll/llsj/051/0100/01210121.tif

Arthur

H.R. 6242

Aug. 1, 1882

13 Cong. Reg. 6758

http://www.i2i.org/articles/MISC/arthur.pdf

 

 

 

 

 

 

 

 

 

 

 

APPENDIX – B

 

FEDERAL HIGHWAY TRUST FUND

CONGRESSIONAL REPRESENTATION

OF

DONOR AND RECIPIENT STATES[22]

STATE

DONOR OR RECIPIENT

Congressional Votes

Senate

House

Alabama Donor

2

7

Alaska Recipient

2

1

Arizona Donor

2

8

Arkansas Donor

2

4

California Donor

2

53

Colorado Donor

2

7

Connecticut Recipient

2

5

Delaware Recipient

2

1

Florida Donor

2

25

Georgia Donor

2

13

Hawaii Recipient

2

2

Idaho Recipient

2

2

Illinois Donor

2

19

Indiana Donor

2

9

Iowa Donor

2

5

Kansas Donor

2

4

Kentucky Donor

2

6

Louisiana Donor

2

7

Maine Donor

2

2

Maryland Recipient

2

8

Massachusetts Recipient

2

10

Michigan Donor

2

15

Minnesota Donor

2

8

Mississippi Donor

2

4

Missouri Donor

2

9

Montana Recipient

2

1

Nebraska Donor

2

3

Nevada Recipient

2

3

New Hampshire Donor

2

2

New Jersey Donor

2

13

New Mexico Donor

2

3

New York Donor

2

29

North Carolina Donor

2

13

North Dakota Recipient

2

1

Ohio Donor

2

18

Oklahoma Donor

2

5

Oregon Donor

2

5

Pennsylvania Donor

2

19

Rhode Island Recipient

2

2

South Carolina Donor

2

6

South Dakota Recipient

2

1

Tennessee Donor

2

9

Texas Donor

2

32

Utah Recipient

2

3

Vermont Recipient

2

1

Virginia Donor

2

11

Washington Recipient

2

9

West Virginia Recipient

2

3

Wisconsin Donor

2

8

Wyoming Recipient

2

1

TOTAL

100

435

17 Recipient States

34

54

33 Donor States

66

381



[1] See Appendix A for a link to the Congressional Record.[2] See Appendix A for a link to the Congressional Record.[3] See Appendix A for a link to the Congressional Record.[4] See Appendix A for a link.[5] See Appendix A for a link to the Congressional Record.[6] See Appendix A for a link to the Congressional Record.[7] See Appendix A for a link to the Congressional Record.[8] See Appendix A for a link to the Congressional Record.[9] See Appendix A for a link to the Congressional Record.[10] See Appendix A for a link to the Congressional Record.[11] See Appendix A for a link to the Congressional Record.

[12] See Appendix A for a link to the Congressional Record.

[13] See Appendix A for a link to the Congressional Record.

[14] See Appendix A for a link to the Congressional Record.

[15] See Appendix A for a link to the Congressional Record.

[16] See Appendix A for a link to the Congressional Record.

[17] See Appendix A for a link to the Congressional Record.

[18] See Appendix A for a link to the Congressional Record.

[19] See Appendix A for a link to the Congressional Record.

[20] See Appendix A for a link.

[21] http://www.reason.org/ps216.html

[22] http://www.reason.org/ps216.html

Following are the December 1999 observations of Dennis Polhill regarding the Confederate Constitution as contrasted with the U.S. Constitution:

  1. The structure of the Confederate Constitution (and government) was extremely similar to the U.S. Constitution.
  2. The Confederate Constitution was written with the benefit of over 70 years experience with the U.S. Constitution.
  3. Except for the provision of slavery, the Confederate Constitution offers some worthy innovations and improvements on the U.S. Constitution.
  4. The CC offers no Bill of Rights.  Rights are integrated with the basic document.  This was one of the difficulties that Thomas Jefferson had with the U.S. Constitution.  He said that attaching a Bill of Rights at the end made it appear as an afterthought.  For this reason he gave serious thought to and nearly did oppose its ratification.
  5. Article I delegates legislative authority to Congress.  In so doing the authority of Congress is enumerated in 18 sections.  These parallel the U.S.C. with variations such as the Post Office must operate out of its own revenue.
  6. Article I limits the powers of Congress in 20 sections that repeat most of the USC Bill of Rights.  #20 is an omnibus bill prohibition, meaning that no bill may have provisions attached to it that are unrelated to the title.  #9 requires that all appropriations be approved by a 2/3 super-majority of Congress.
  7. Article II relates to the Executive.  The President is limited to a single 6 year term.  All appointments (judicial and executive) are approved by 2/3 of the Senate.
  8. Article V in both documents deals with its amendment.  This is the most extreme variation between the two documents.  The CC takes away from Congress the power to propose Amendments.  Only States may propose Amendments.  When 3 (of 11 states = 25%) States concur on a proposed Amendment, Congress is obliged to convene a Constitutional Convention to consider the proposed Amendment.  When 2/3 of the States ratify, the Amendment becomes part of the Constitution.
  9. Elected Officials and Judges are bound by their oath to uphold the Constitution.
  10. The 9th and 10th Amendments to the USC (which reserve rights not specified to individuals and powers not delegated to the Federal government for the states) appear in the CC prominently immediately prior to Article VII, the ratification article. 

Opinion Editorial

By Dennis Polhill

The Founders wrote in the Declaration of Independence, “whenever any form of government becomes destructive, it is the right of the people to alter or to abolish it.” Since 1990 Americans have sought to “alter” an out-of-control government by imposing new limits: term limits.

Other limits proposed include tax and expenditure limits, balanced budget limits, campaign finance limits and others. Forty-one state Constitutions prohibit omnibus bills. Omnibus bills, also called “Christmas Tree” bills, are those that append unrelated provisions (read: payoffs) in order to attract enough votes to pass. They offer a little something for everyone, but end up authorizing things that lack merit — bad public policy. Omnibus bills make virtually everyone worse off, except politicians. Acknowledging this flaw, the original Confederate constitution, with comparatively few departures from the U.S. Constitution, prohibited omnibus bills. If omnibus prohibition or term limits or other ideas are worthy, by what mechanism are they to be achieved? “Alter” infers a means for achieving alteration, short of revolution or creating an entirely new document.

A written constitution defines the structure of government and specifies the limits under which it may operate, partially in the form of enumerated individual rights. That is, we the people delegate limited powers to be governed by. Laws are conformity agreements between all citizens negotiated by representatives. Constitution limits government. Statutes are the rules for the people.

Thus, legitimacy is ascertained by who a Constitutions owner is; irrespective of the quality contained within, who controls the amendment process? If a government controls the amendment process, then the government owns the document, not the sovereign people. This problem is evident in fledgling democracies all over the world. They draft Constitutions, copying provisions of others, but rarely come to grips with the notion that the people are sovereign, not the state.

Article V of the U.S. Constitution addresses the amendment process. Three-quarters of the states must agree to ratify a proposed amendment. The control question hinges on drafting proposed amendments. Most familiar is drafting proposed amendments in Congress, because all 27 amendments originated via this path. Congress can effectively draft the proposal when there is a national consensus and no conflict of interest. However, limits on Congressional power, such as term limits, are conflicts of interest. Like a first-grader setting his own bedtime, Congress is paralyzed.

Aware of the problem, the Founders included a second path for drafting proposals: “two-thirds of the several states, shall call a convention for proposing amendments.” Since 1787 there have been about 400 applications from 49 states, including Colorado. Congress has neglected to define the rules that would either convene or govern a convention. After all, Congress would lose power if a convention occurred. Constitutional scholars are divided over interpreting the 400 convention applications and it is likely that someone will file suit to clarify the situation. Is it proper that Congress may frustrate efforts to set Congressional limits merely because Congress has neglected to set the rules? Should dereliction of duty be rewarded by empowerment?

Interestingly, the widely supported proposals for new limits originate from the left, the right and the center, suggesting a very broad and growing awareness of the need for new Congressional limits.

Some defend Congressman Tancredos betrayal of his word with “unilateral disarmament.” Meaning: with seniority Colorado will more effectively rip off other states using the corrupt omnibus system. For Colorado to win, other states must lose. This reasoning was rejected overwhelmingly in 1990 when Colorado became the first and only state to impose term limits on its Congressional delegation. Sixteen other states agreed in 1992. Colorado reaffirmed statewide support for Congressional term limits in 1994, 1996, and 1998.

Now the politicians hope that interest in term limits has faded. The statewide 65:35 vote against lifting District Attorney term limits proves otherwise. A Rocky Mountain News poll in mid-October discovered 62% support for term limits, virtually the same level as the 1990s. Support for term limits will not fade merely because politicians declare it so, or because they deceptively delete part of the Colorado Constitution under a false ballot title, or because they fail to exercise leadership and are unresponsive or lack accountability.

Did voters send Tom Strickland a term limits message when he appeared on the ballot as the only one of five U.S. Senate candidates who did not support term limits? Pundits and pollsters have thus far failed to offer an explanation for Allards surprise victory.

Arrogant politicians should be cautious in their contempt for term limits. How likely is it that Americas political establishment can continue to succeed in denying the peoples will? We, the people, patiently, but eagerly, await political leaders who will provide the kind of government we wish. The longer they dawdle, the more this is a measure of power and control without merit, and an indication of the need for possible further limitations to be placed on the politicians.

###
Copyright 2002, Independence Institute

INDEPENDENCE INSTITUTE is a non-profit, non-partisan Colorado think tank. It is governed by a statewide board of trustees and holds a 501(c)(3) tax exemption from the IRS. Its public policy research focuses on economic growth, education reform, local government effectiveness, and Constitutional rights.

JON CALDARA is President of the Institute.

DENNIS POLHILL is a SENIOR FELLOW with the Independence Institute.

ADDITIONAL RESOURCES on this subject can be found at: www.i2i.org

NOTHING WRITTEN here is to be construed as necessarily representing the views of the Independence Institute or as an attempt to influence any election or legislative action.

PERMISSION TO REPRINT this paper in whole or in part is hereby granted provided full credit is given to the Independence Institute.

Opinion Editorial

By Dennis Polhill, David Ottke

Subverting the will of the people by fixing elections strikes at the heart of the democratic process.

Shortly after the 2000 census is finished, powerful politicians will meet in virtual secrecy to decide who will be in power for the next decade.

It is a flaw of the winner-take-all two party system.  Gerrymandering is the process of redrawing election district boundaries to throw as many of the opposing party’s votes into as few districts as possible.  Thus, by conceding a few districts, the majority party enhances its margins in the legislative body and insures its control until the next census.  The natural consequence is that majority party voters living in minority party dominated districts lack both representation and an opportunity to achieve representation through the election process.  Minority parties never have a chance to become the majority. The threats of having third party views heard are suppressed even more than they are naturally.

In the November 1998 election, 79 of Colorado’s 100 General Assembly seats were filled.  Sixty-five House members and 14 Senators were elected.  One of the two major parties did not bother to field a candidate in 19 races. The number of uncontested races was an improvement over the 1996 high of 25.  Similar numbers were posted throughout the decade.  Is it that too few people care or are more sinister forces at play?

Candidates consider victories of over 55% as landslides.  By that standard 63 landslides occurred in the 79 General Assembly races in the 1998 election.  Otherwise stated fewer than 20 percent of the races had better than the faintest hope of a real election contest. But arguably 1998 may have been the most competitive General Assembly election of modern time due to term limits prohibiting 27 veteran legislators from running again.  Eighty per cent and 83% of Colorado House members were elected by landslides in 1996 and 1994 respectively.  If 80% of election results are predetermined, then the votes of 80% of voters do not matter.

The numbers at the federal level are worse.  Since World War II, Congressional re-election rates have ranged between 98% and 99%.  When turnover shot up to 7% in 1994, it was termed a “Revolution.”

If there is no election contest, “Is there an election?”  Americans ridicule the Communist system for providing only one candidate. Fascist dictator, Benito Mussolini, once said, “give me the right to nominate and you can vote for whomever you please.”  With superficial concern for declining voter turnout, election observers fail to comprehend the deeper message sent by voters as they increasingly exercise their right to abstain from voting.

Founding Father Elbridge Gerry, for whom gerrymandering is named, demonstrated how quickly commitment to democratic principles mutates into self interest.  As Governor of Massachusetts in 1812, he oversaw the drawing of election district boundaries to insurer the political result that he desired. Despite its profoundly undemocratic nature gerrymandering spread quickly. Early state constitutions always gave power to draw districts to the state legislature, usually with veto power given to the Governor.  This practice continues today in 32 states, including Colorado. More widespread than the well-known racial abuses, gerrymandering has become a tool for protecting incumbents from serious election challenges.

Recognition of the need for reform is not new.  At least four bills were considered by the Colorado General Assembly in 1981.  Two failed in the legislature and two were vetoed.  All four dealt with Congressional districting only and were seen by the Democratic Governor as maneuvering by the Republican Legislature to capture more Congressional seats. In 1990 State Senator Terry Considine introduced his Election Reform Amendment.  It was designed to restore competition to the election process.  In addition to term limits and campaign finance disclosure, ERA put redistricting in the hands of an independent commission and required that the number of party registered voters be balanced in each district. Lacking interest in such changes the General Assembly quickly disposed of the ERA.

The conflict of interest of having legislative bodies draw election districts is obvious.  Redistricting must be entrusted to a body of independent citizens more interested in increasing election competition than lightening the re-election load.  In addition to the current criteria of equal population and contiguousness, a compactness criteria must be enforced. The goal is to minimize the ratio of perimeter to surface area, making appendages to capture desired population clusters more difficult.

Elections are an integral part of both the democratic process and the American culture.  The notion of an increasingly constrained election process has no future.  Lacking the necessary changes, more extreme reforms such as abandonment of geographic representation altogether, may be on the horizon.

——————————————————————————–

Dennis Polhill is a Senior Fellow with the Independence Institute, a free-market think tank in Golden, http://i2i.org.

This article, from the Independence Institute staff, fellows and research network, is offered for your use at no charge. Independence Feature Syndicate articles are published for educational purposes only, and the authors speak for themselves. Nothing written here is to be construed as necessarily representing the views of the Independence Institute or as an attempt to influence any election or legislative action.
Please send comments to Editorial Coordinator, Independence Institute, 14142 Denver West Pkwy., suite 185, Golden, CO 80401 Phone 303-279-6536 (fax) 303-279-4176 (email)webmngr@i2i.org

Opinion Editorial

By Dennis Polhill

Who should be exempt from taxes? By resoundingly defeating Amendment 11, Colorado voters said that private charities should continue to be exempt from property taxes. But there is a far larger tax exemption issue that has not been debated: should government entities be exempt from taxes? Why is it fair that ordinary citizens pay the state sales tax when they buy office supplies, but the Denver City Council, for example, is exempt from the tax?

The notion of governmental tax exemption is rooted in the famous 1819 case, McCullough v. Maryland, which held that “federal properties within city boundaries are not taxable.” The logic was rooted in the English common law of sovereign immunity wherein the king is immune because the king is the law.

But sovereign immunity is inconsistent with constitutionally limited government that recognizes citizens as the true sovereign. The 1819 McCullough ruling was adequate for simpler time when governments were fewer and their purpose was constitutionally limited. Taxation among governments would constitute a transfer providing no direct benefit and unnecessarily increasing costs.

But times have changed, and the immunity from taxation premise deserves rethinking. The U.S. now has nearly 90,000 governments. Colorado will soon exceed 2,000. Within Jefferson County there are 140.

The location of the Federal Center in the city of Lakewood imposes unreimbursed, costs of traffic control, snow removal, street sweeping, pothole patching, drainage, police and fire protection and so forth. Many more similar impacts accrue when a county government locates facilities in a small town. The Grand county school district is deprived of needed operating revenue because Winter Park ski resort (owned by the City of Denver) does not pay property tax. Some governments provide more free services to other governments than they receive. This inequity creates the incentive for feudalistic-like competition among them. They quickly and aggressively compete to secure new-found revenue sources and service rights.

Some non-traditional services (like day care) find as many as five levels of government laying claim to the right to provide the service, even though the service is also provided by non-profits and by taxpaying businesses.

When the government provides a service, such as running an athletic club, and the government is exempt from taxation, then the government enjoys a huge hidden cost advantage over private competitors. The hidden costs are not efficiencies; they are cost burdens that are redistributed to other governments, to taxpayers, and to individual consumers. The government clubs may drive the other athletic clubs out of businessnot because the government club is better, but because the private clubs have the burden of sales taxes, property taxes, corporate income taxes, etc., from which their government rival is exempt.

Back in 1819, government entities did not compete directly with private business or with each other. But today, governments are without limits.

As more tax-exempt government entities drive private competitors out of business, the tax base is eroded.

Ultimately, the government tax exemption issue forces us to consider the purpose of taxation. Under one philosophy of taxation, the purpose of taxation is to pay for government services. Under this philosophy, most government tax exemptions should be abolished. For example, if a county sales tax is used to fund fire protection for everyone in the county, a government owned athletic club or day care center in that county should also pay sales taxes, since the government facilities benefit from fire protection the same as everybody else.

The other philosophy of taxation is that taxes are to redistribute wealth from the unworthy to the worthy. Since governments are (supposedly) not motivated by monetary gain, while normal businesses operate under the profit motive, it is good that taxes redistribute wealth from people who work for private business to people who work for the government. The tax exemption for government entities, by giving government entities more money to spend on salaries, amounts to an indirect transfer of wealth from private to government hands.

Until society comes to grips with the core principles, the public policy problem will continue to grow. Complexities are inevitable when society has the basics wrong.

The simplest cure for the tax-exemption problem would be to make governments subject to ordinary taxes, the same as everyone else.

——————————————————————————–

Dennis Polhill is a Senior Fellow at the Independence Institute, a free-market think-tank located in Golden, Colorado

This article, from the Independence Institute staff, fellows and research network, is offered for your use at no charge. Independence Feature Syndicate articles are published for educational purposes only, and the authors speak for themselves. Nothing written here is to be construed as necessarily representing the views of the Independence Institute or as an attempt to influence any election or legislative action.
Please send comments to Editorial Coordinator, Independence Institute, 14142 Denver West Pkwy., suite 185, Golden, CO 80401 Phone 303-279-6536 (fax) 303-279-4176 (email) webmngr@i2i.org

Trends in the National Transportation Policy
by Dennis Polhill
C.E. 170 Transportation Characteristics
Instructor: Professor Athol
December 22, 1975

Table of Contents

I. Setting the Stage
1. Tradition
2. The First Legislation
3. The First Real Effort
4. Decline
5. The Federal Role
6. The “Good Roads” Movement

II. The New Era
1. The Federal Aid Highway Act of 1916
2. The Federal Highway Act of 1921
3. The Hayden-Cartwright Act
4. Toll Roads
5. Interregional Highways
6. The War Years
7. The Federal Highway Act of 1944
8. A Financing Problem
9. The Federal-Aid Highway Act of 1956
10. The Federal-Aid Highway Act of 1958
11. The Federal-Aid Highway Act of 1961
12. The Federal-Aid Highway Act of 1962
13. The Federal-Aid Highway Act of 1966
14. The Federal-Aid Highway Act of 1968
15. The Federal-Aid Highway Act of 1970
16. The Federal-Aid Highway Act of 1973

Bibliography
Long Distance Telephone interviews

I. Setting the Stage

1. Tradition

In early England monasteries were largely responsible for the maintenance of roadways. After Henry VIII dissolved the monasteries (1536-1539) the roads rapidly deteriorated. In 1555 the Parliament instituted “Statute Labor” which required four days work per year upon the roads by every parishioner. This is the source of the common law concept which has carried through to the American system. The effectiveness of this system was identified early in the history of the United States and adjustments were proposed.. In 1785 George Washington proposed abandonment of county- controlled statute labor in favor of contract work directed by a central authority. Governor Livingston of Pennsylvania in 1791 proposed that each county establish its own maintenance force to be paid by county taxes to “work faithfully instead of the ridiculous frolic of a number of idlers.”

2. The First Legislation

The first American road legislation was passed by the Virginia General Assembly in 1632. The Act was three lines and provided merely that roadways should be built.

The second action was taken in 1639 by the colony of Massachusetts. It was significant in that it was the first to mention right-of-way widths. In 1664 New York passed roadway legislation which specified standards (i.e., ten foot roadway width, stumps cut close to ground, and bridged). In 1704 the Maryland colony passed a law similar to New York’s with the addition of roadway markings (notches in trees).

In 1743 a charter was granted to the Ohio Company (private enterprise) to make a road across the mountains to the confluence of the Monongahela and Kanawha Rivers. This was the road which was used by General Braddock in 1755 during the French and Indian War. In 1758 General John Forbes made another road through Bedford and Ligonier for his successful assault on Ft. Duquesne in Pittsburgh. In 1775 the Transylvania Company was chartered with the purpose of making the wilderness road through the Cumberland Gap into Kentucky. Most American roads at the time of the revolution were mere pack trails. A few, mostly those mentioned above, were wide enough for wagons. Pounded stone was not implemented until 1832 and wood planks were not used until 1835.

3. The First Real Effort

After the Revolutionary war the federal government was interested in the development of roads for the purpose of maintaining the unity of the nation. As a carry-over from English common law local authorities were responsible for road repair. Local agencies demanded help from the States. The States were unable to help due to their war debts. Therefore, state governments met the challenge by chartering private turnpike companies with the authority to build roads and charge user tolls. Virginia granted the first such charter in 1785 but Pennsylvania rapidly became the leader in 1791 by adopting a statewide transportation plan for 68 road and navigation improvements. In 1808 the Secretary of the Treasury reported to Congress that Connecticut had 50 turnpike companies and 770 miles of road, and New York had 67 companies and 3,110 miles of road. Some turnpike companies were subsidized by the States through stock purchased on tax exemptions. Many were able to profit up to 15 percent per year, the maximum legal limit.

Four main transmountain roads were built to meet the demand for westward migration. The Lancaster Pike was ex-tended to Pittsburgh. In New York a road was built from Massachusetts to Lake Erie. The Cumberland Road was built. from the Head of Navigation on the Potomac River (Cumberland,

Maryland) to the Head of Navigation on the Ohio River (Wheeling, West Virginia), The Northwest Turnpike was built from Winchester, Virginia to a point on the Ohio River.

4. Decline

The Railroads came into the picture about 1830. By 1850 only a few turnpike companies and transportation companies had not yet gone bankrupt due to competition from the railroads. The growth of roadways, had reached a peak.

Turnpike companies stopped maintenance. Travelers refused to pay tolls because of the condition of the roads. Responsibility for roadways fell back to state and local agencies who were able to do little. The period from 1850 to 1900 has been labeled the “dark age of the rural road.” Basically the only new roads built during this period under federal subsidy were military wagon roads built by the Army Corps of Engineers primarily in the territories.

5. The Federal Role

In 1796, Colonel Ebenezer Zane chose his revolutionary war veteran bounty land warrant at the juncture of the Muskingum, Hockhoeking, and Scioto Rivers. He received special permission from Congress to make a post road from Limestone, Kentucky (now Maysville) to Wheeling, West Virginia. This was the first instance of subsidy by the federal government for roads. Zane’s trace, like the others started out as a pack trail, but its economic significance was rapidly identifiable. Heavy traffic caused Zane’s road to be chopped out wide enough for wagons by 1803.

In 1803 Congress passed the 5 per cent law. A fund was established in-which 5 per cent of revenues generated from the sale of federally owned public lands was deposited. Three per cent was granted to the States upon admission to the Union for roads, canals, levees, river improvements and schools. Two per cent was used for constructing roads “to and through” the west. -All 33 states admitted between 1820 and 1910 were subject to this law except Texas and West Virginia,”-which had no federal lands.

The two per cent is the interesting part. In 1806 Congress authorized these funds to be used for the construction of the Cumberland road, one of the four transmountain roads. Bitter debate developed in and out of Congress..

Strict constructionists to the constitution denied that the federal government had the authority to build roads, except in territories. Article X of the Bill of Rights, “The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Proponents of federal road building prevailed by citing the “General Welfare” clause of the Constitution. By 1813 the Cumberland road was open from Cumberland, Maryland to Wheeling, West Virginia. The road became so heavily used that appropriated funds were not sufficient for maintenance. Congress took action by authorizing tolls in 1822. President Monroe vetoes the act stating that collection of tolls implied a power of jurisdiction which Was-not granted to the federal government by the Constitution. In 1835 the Army Corps of Engineers conducted major repair and rebuilding after which the road was turned over to the States for operation as a toll facility.

In 1823 Congress granted Ohio a 120 foot R.O.W. and one mile of public land on each side to finance a road from eastern Lake Erie to the Western Reserve. In 1827 Congress subsidized a toll turnpike in Ohio from Columbus to Sandusky.

In 1827 Indiana used its land grant money to build the “Michigan Road” from Lake Michigan to Indianapolis and then to Madison.

In 1830 President Andrew Jackson vetoed a bill funding the Mayville turnpike in Kentucky stating and set-ting the national policy that “Internal improvements of a purely local character are not of national importance.” This reasoning negates the claim of highway proponents under the “General Welfare” clause leaving the “police powers” (State’s Rights) clause to prevail.

All subsequent federal legislation, even during the heavily liberal periods before World War I and during the depression, have been very careful not to challenge the precedents set by these two presidential vetoes. It will be interesting to-see what, if anything, evolves as a result of the 1974 Federal-Aid Highway Amendments signed into law by President Ford, January 5, 1975, which open the Highway Trust Fund to off-system projects.

6. The “Good Roads” Movement

The interest in good roads was revitalized in the 1880’s through the lobbying power of the League of American Wheelmen and other cyclist groups. In 1893 Congress established the office of Road Inquiry. The office had a budget of $10,000, one agent, and one clerk; was organized under the Department of Agriculture; and was to “make investigations in regard to the best methods of road making, (and) to prepare publications….suitable for…. disseminating information on this subject.”

Briefly, the Office of Road inquiry became the office of Public Road Inquiry in 1899, the office of Public Roads in 1905, the office of Public Roads and Rural Engineering in 1915, the Bureau of Public Roads in 1919. In 1939 the Bureau of Public Roads became the Public Roads Administration under the Federal Works Agency. In 1949 the Federal Works Agency was abolished. The Public Roads Administration became the Bureau of Public Roads again, temporarily under the General Services Administration (7/1/49 – 8/20/4.9) and finally under the Department of Commerce. In 1966.the Department of Transportation was established. The Bureau of Public Roads was transferred under this consolidation move and became the Federal Highway Administration.

In 1895, four passenger cars were registered in the United States. By 1900, 8,000 were on the roads. By 1910 there were 458,000. In 1904 the first complete inventory of public road mileage was conducted by the office of Public Road Inquiry. The United States had 2,151,570 miles of road.

Only 153,662 miles were improved with stone, gravel, or sand- clay surfaces. (A few were even better: the first brick street was constructed in Charleston, West Virginia in 1872; the first rock asphalt street was constructed in Newark, New Jersey in 1870; the first sheet asphalt street was constructed in Washington, D.C, in 1879.1 Not included in the total was 1,101 miles of stone surface toll roads in Pennsylvania and 497 miles of toll roads in Maryland. Ninety-three per cent of the nation’s roads were dirt paths. In 1891 New Jersey was the first state to pass a State-Aid Bill. It was also the first state to allow local governments to utilize debt services for road projects. By 1917 all states had adopted State-Aid legislation for roads. Roy Stone, first Head of the Office of Road Inquiry recommended that “object lesson roads” (experimental/demonstration) be constructed. Stone got approval but his budget remained at $10,000. He was forced to go to private and local sources for funds. Stone resigned in 1893. Martin Dodge, the new Director continued the demonstration road program. The “object lesson” concept was successful. Once it became widely known that “good roads” were a potential reality, the clamor increased. Congress would have to do something.

Even the railroads, secure in their position as the backbone of the American transportation system, got on the good roads bandwagon. The railroads had learned a hard economic lesson by yielding to pressures to build spur routes and duplicate parallel routes which never provided profits. The railroads were anxious to provide service to those unprofitable tributary routes through other means.

Finally, in 1912 Congress authorized $500,000 for an experimental program of rural post-road construction. It is interesting to note at this late date how cautious Congress is with regard to the precedents set by the vetoes of Presidents Monroe and Jackson. Under Article I, Section 8, Para-graph 7 of the U.S. Constitution, Congress is specifically delegated responsibility for postal roads. In fact, the appropriation was made through the Post Office Appropriation Act and States were required to come-up with two-thirds of the project costs. Only 17 states took advantage of the program. This was the only one of 60 federal monetary aid bills to pass in 1912. Consequently a Joint Congressional Committee was appointed to determine if and how federal funds could be used to aid highway construction. The report was submitted in 1915 and resulted in the passage of the Shackleford Good Roads Bill.

II. The New Era

1. The Federal Aid Highway Act of 1916

In 1916 Congress parsed the Shackleford Good Roads Bill, better known as the Federal Aid Road Act. This Legislation was revolutionary in concept and established the be-ginning of a new era in transportation. The Act circumvented established precedents by making the program optional to the States on the basis-of a 50 – 50 matching funds relationship. Each State was required to establish a state highway department capable of administering the funds. States received apportionments on the basis of formulas weighted by area, population, and rural mail route mileage (still relying on the post-road responsibility of Congress). The States retained the initiative and prerogative in proposing roads and types of improvements, the responsibility for surveys, plans, specifications, right-of–way acquisition, and contract administration. No tolls could be charged. Ownership and maintenance responsibility remained with the State. This act set the pattern for all highway legislation of the future.

The century long debate over the nature and intent of the Federal-State relationship had,~ in all practicality, been resolved. During conservative periods attempts have been made to swing back to the transitional “Federalism:” late 1920’s Eisenhower administration, Nixon administration; but it is unlikely that this will ever be successful.

The traditional interpretation of federalism as a strict division of responsibilities between the Federal and State Governments had been adjusted to, but not yet labeled, the “New Federalism.” The “New Federalism” is difficult to define but is generally described as a mixture of responsibilities, similar to a marble cake.

2. The Federal Highway Act of 1921

The Federal-Aid Road Act of 1916 authorized $5,000,000; $10,000,000; $15,000,000; $20,000,000; $25,000,000 for fiscal .,years 1917, 1918, 1919, 1920 and 1921 respectively. The pro-gram was an astounding success. However, in 1917 the United

States found itself in the midst of World War I. It was quickly discovered that the railroads were not capable of handling the increased demand for transport of war material. The trucking-industry was born. In one year the number of trucks in the country doubled. There were no load limits and during the spring thaw of 1918 even the best roads deteriorated. The poor condition of the roads and fuel restrictions helped trucking for hire to thrive.

After the war, road builders and truck manufacturers agreed on a truck capacity of 7 1/2 tons. The post office appropriation act of 1920 authorized $200,000,000 of additional funding for the 1916 road act. Also $139,000,000 worth of surplus war material and equipment was distributed among the State Highway Departments. The railroads were helped back on their feet by the Transportation Act of 1920. The Federal-Aid Highway Act was about to lapse. Another highway act was necessary to continue the program. The Federal Highway Act of 1921 was passed. A major provision of this act was the requirement that all State Highway Departments designate a system of principal roads which would be eligible for federal aid funds. The “Federal-Aid System” was limited to seven per cent of the total mileage in each state and subject to approval of the Bureau of Public Roads (to assure continuity between states). Congress appropriated $75,000,000 for fiscal 1922.

3. The Hayden-Cartwright Act

The Federal Aid Highway Act of 1934, better known as the Hayden-Cartwright Act, is significant in that it allowed the use of federal matching funds up to one and a-half per cent for surveys, plans, and engineering investigation. Highway planning was born. During the next two years, 1934 and 1935, Herbert S. Fairbank, Deputy Commissioner for Research of the Bureau of Public Roads became a strong and outspoken advocate of “Planning for Planning.” He is called the Father of Highway Planning. His recommended inventories required a great deal of man power. Under the National Recovery Act, manpower was made available for both highway work and planning. Requirements for state matching funds were temporarily lifted so that work could continue.

It was estimated that for each person working on the highways two other people were employed in the manufacture and trans-port of needed material and equipment. With the inclusion-of “WPA” funds, appropriations during the ’30’s went as high as $1.2 billion per year.

4. Toll Roads

During the 1930’s the Pennsylvania Turnpike was constructed between Harrisburg and Pittsburgh. It was planned and built by special state authorities, which used private engineering firms and financed the project with revenue bonds. During World War I2, heavy military use of the road proved valuable both to the turnpike authorities and the military. Increased traffic allowed the revenue bonds to be retired early and expeditions movement of war goods aided the military. This, with the increase in traffic after World War II stimulated growth of toll roads in several states.

5. Interregional Highways

The value of the Pennsylvania Turnpike was recognized before the war. In 1938 Congress directed the Bureau of Public Roads to study the feasibility of a toll-financed system of six superhighways. The report, “Toll Roads and Free Roads” was presented to Congress in 1939. The report stated that a 14,000 mile toll road system as suggested by Congress would not be self-supporting. The report went on to document the need-for a system of interregional super-highways with connections through and around cities. A 26,700 mile system was proposed with the suggestion that the federal government contribute more than the traditional 50 per cent federal share. In 1941 President Roosevelt appointed a National Interregional Highway Committee headed by Thomas MacDonald, Commissioner of Public Roads to look more closely at the concept. The value of the Hayden-Cartwright Act and Herbert Fairbank’s inventory of data for planning was realized. -In addition, Congress in 1943 requested the Bureau of Public Roads to make a study of the need for a nationwide expressway system. In 1944 a single joint report was submitted to Congress entitled “Interregional Highways.” The study considered many alternatives and recommended a 39,000 mile optimum network. The report called for “high standards of geometric design” and full access control. No cost estimate was made, but a $750,000,000 per year post war expenditure was suggested.

6. The War Years

A Federal Highway Act was passed in 1940 but little of the apportioned funds were utilized due to World War II.

In 1941 (less than three weeks before Pearl Harbor) Congress passed the Defense Highway Act. It authorized 75 per cent participation by the federal government but approved only projects on a designated strategic highway network. Roads which provided access to military establishments were subject to 100 per cent participation. In 1943 Congress amended the

Defense Highway Act so as to authorize expenditure of funds still remaining under the 1940 Highway Act. For the first time federal funds were allowed for right-of-way acquisition. The funds were used only for PS & E (plans, specifications and estimates) and for R.O.W. acquisition for two reasons: (a) critical material was needed for the war effort, and (b) Congress wanted to generate a reservoir of plans in order to start highway construction immediately after the war.

7. The Federal Highway Act of 1944

The Federal Aid Highway Act of 1944 required the designation of a “National System of Interstate Highways” not to exceed 40,000 miles. The Act also authorized $500,000,000 per year for the first three years after the war. The funds were restricted to a 45:30:25 ratio for primary, secondary and urban extensions, respectively. This distribution was later labeled the “ABC Program” and the ratio remained until-1973. The Act retained the provision which allowed the use of federal funds for right-of-way acquisition and established as a prerequisite to federal aid that traffic control devices must conform with uniform standards. The indirect or passive nature of this last requirement reflects the continued reluctance of Congress to confront the constitutional question of State’s rights. No funds were specifically designated for interstate construction.

On August 2, 1947, selection of the general locations of the interstate routes was announced. Much discussion between theStates, the Department of Defense and the Bureau of Public Roads had gone into the selections. A total of 37,700 miles was recommended. The remaining 2,300 miles authorized by Congress was reserved for auxiliary urban routes.

8. A Financing Problem

In 1952 the Federal Aid Highway Act authorized $25,000,000 specifically for the interstate system and equal amounts for 1954 and 1955. The 1954 Federal Aid Highway Act authorized $175,000,000 for 1956 and 1957 respectively. for the interstate system at 60 per cent participation. The program was ineffective. Federal authorizations were too small and States were unable to finance their portion. The first interstate highway cost estimate was $11.3 billion in 1949. At this rate, the interstate system would never have been completed. The cost estimate was increasing faster than the system was being built.

In 1953 the House Subcommittee on Roads conducted hearings and published the “National Highway Study.” The automobile manufacturer’s association had just completed a study which indicated that unsafe and inadequate highways were costing the nation’s motorists at least 3 billion dollars per year. In 1954 President Eisenhower described a “properly articulate highway system” in his message to the Governors’ Conference. In response the Governors’ Conference directed its Committee on Highways to prepare a special report to the President. The Kennon Committee Report went to the President with the message that the national government should assume primary responsibility for financing the interstate system. The Federal Aid Highway Act of 1954 directed the Bureau of Public Roads to make several extensive studies. One of these was the “Needs of the Highway System, 1955 – 1984” (March 1955) estimated the cost of the interstate system at $23.2 billion. Another was “Process and Feasibility of Toll Roads and their Relation to the Federal Aid Program” (April 1955). This report indicated that 6,700 miles could be financed by tolls; but that widespread interest in toll roads would soon end.

After the report from the Kennon Committee, Eisenhower” appointed the Advisory Committee on a national highway program, better known as the Clay Committee for its chairman. The Committee report “A 10-year National Highway Program” was presented to Congress in February 1955. This report set the estimate at $27 billion and recommended a 90 per cent ($25 billion) share for the federal government. The interstate system was to be constructed over a 10 year period and was to be financed by $20 billion of long-term bonds-which would have been-.repaid over a 32 year period from the existing 2-cent federal motor-fuel tax. Congress was not happy with the report: (a) the proposal placed a 32 year ceiling on ABC programs; (b) it would cost $12 billion in bond interest, and, (c) it removed fiscal control of the program from the hands of Congress.

Early in 1955 bills were introduced into both the House and Senate, but no legislation resulted. Although nearly all factions were in favor of the interstate programs, there was lack of agreement and compromise.

9. The Federal-Aid Highway Act of 1956

By the time Congress returned in 1956 pressure of public opinion had increased. Differing factions were ready for compromise. The pay-as-you-go concept was agreed upon.

A house bill was passed 4/17. It was amended and passed in the Senate 5/29. A compromise bill was developed by 6/25 and passed both houses on 6/26 by overwhelming majorities. President Eisenhower signed the bill 6/29. The National System of Interstate and Defense Highways was born. This Act is actually two acts. Title I is the Federal-Aid Highway Act of 1956. Title II is the Highway Revenue Act of 1956.

Title z directs the Secretary of Commerce to cooperate with State Highway-Departments in the establishment of design standards (AASHO and BPR had already begun. The standards were completed and adopted by July 1956). Title I authorized 41,000 miles of interstate. Inclusion of existing toll roads in the interstate system was permitted (federal funds could not be applied to toll roads and the toll roads must be opened to free travel once the bonds are paid off). The Act limited vehicle weights and widths by adopting the AASHO limits or those of the respective state, whichever was higher. The Act expanded on a provision of the Federal-Aid Highway Act of 1950 which established the requirement for public hearings when by-passing or going through a city. Advanced acquisition of right-of-way was permitted. The federal share was 90 percent. A generous ABC program was continued. The apportionment formula as applied to the interstate was to be changed, effective 1959. Subsequent apportionments would be on the basis of need, so that the entire system would be completed at the same time.

Title II created the funding mechanism which would make the interstate system possible. It created the Highway Trust Fund which is the source of federal matching funds.

Creation of the Trust Fund required several amendments to the Internal Revenue Code. Previously highway funding was taken out of the general budget. Similarly, highway revenues went into the general treasury. The idea behind the fund is simply to separate the highway money from the regular federal budget to require the highway users to pay for the highways. Highway. user taxes were increased for the period 7/1/56 to 6/30/72. The taxes are deposited in the Trust Fund and are administered by the Secretary of the Treasury. If a balance should accrue in the Trust Fund, the money was to be loaned to the general treasury under the same conditions as, but in place of, outside money. By 1969 over $160 million had been generated from interest on the Trust Fund balance. The highway user taxes and the Trust Fund have been one of the most popular taxes ever devised.

10. The Federal-Aid Highway Act of 1958

In January of 1958, as required by the Act of 1956, the Bureau of Public Roads submitted its first periodic estimate of the cost of completing the interstate system. Over a million man-hours went into preparation of the estimate. This was the first detailed estimate of the entire 41,000 mile system. It came to $37.6 billion (the $10 billion increase was due to four factors: traffic projections, $1.3 billion; local needs (dictated by congressional action), $3.8 billion; construction prices, $4.1 billion; and miscellaneous, $.8 billion). In addition, 1958 was a time of recession. Congress decided to accelerate the highway program as a cure for the economy. The Federal-Aid Highway Act of 1958 was passed. It increased interstate authorizations from $2 billion to $2.2 billion for fiscal 1959 and to $2.5 billion for each of fiscal 1960 and 1961. To avoid depletion of the Trust Fund the highway user taxes had to be raised in 1959.

11. The Federal-Aid Highway Act of 1961

The second periodic estimate of the cost of completing the interstate system was presented to Congress in January 1961. Over two million man-hours went into its preparation. $33 billion would be required to complete the system. It confirmed the estimate of 1958. The “Highway Cost Allocation Study” undertaken in 1956 was also presented to Congress in January 1961. The purpose of this study was to recommend a system. of equity by which costs and benefits to highway uses would be matched. The Federal-Aid Highway. Act of 1961 was passed, raising certain highway user taxes, establishing equity among users, and putting the Trust Fund back on a sound basis.

12. The Federal-Aid Highway Act of 1962

The need for an integrated transportation program and in-depth planning became apparent in 1962. AASHO, NACO, and AMA (National League of Cities) launched their “Action Program” which advocated urban transportation planning.

The National Committee on Urban Transportation had been advocating such transportation planning since its creation in 1954 by AMA, ICMA, ASPO, NIMLO, APWA, and MFOA. The Federal-Aid Highway Act of 1962 required a continuous planning program and called for greater cooperation among all levels of government. The Act stipulated that after 7/65 projects would not be approved unless they were based on continuous, comprehensive, and cooperative transportation planning. Congress repeated itself in regard to transportation planning in the Housing Act of 1961 and the Urban Mass Transportation Act of 1964. There was no question as to the position of Congress in regard to comprehensive, in depth planning, the integration of transportation systems, and cooperation between governments. The 1962 Act also required state highway departments to furnish satisfactory relocation advisory assistance to families displaced by the new interstates.

13. The Federal-Aid Highway Act of 1966

Four acts of significance to the highway system were passed in 1966. The National Traffic and Motor Vehicle Safety Act identified the necessity “to establish motor vehicle safety standards.” The Highway Safety Act attempted to establish a “coordinated national highway safety program.” It required states to establish an approved highway safety program. The Federal-Aid Highway Act merely appropriated revenues ($3:6 billion each for fiscal 1968 and 1969). The Transportation Act created the Department of Transportation.

14. The Federal-Aid Highway Act of 1968

The Federal-Aid Highway Act of 1968 created the “Traffic Operations Program to increase capacity and safety” (topics). There was $400 million authorized under topics on a 50 – 50 matching basis. Most states added 25 per cent for local governments making the local government share only 25 per cent. The 1968 Act also established appropriations for fiscal 1970 and 1971 of $4 billion each.

15. The Federal-Aid Highway Act of 1970

The Federal-Aid Highway Act of 1970 repeated the relocation assistance requirements of the 1962 Act. The relocation requirements were repeated again and expanded to all federal-aid projects by the uniform Relocation

Assistance and Real Property Acquisition Act of 1970. Another redundancy appeared on the environmental front.

The National Environmental Policy Act of 1969 establishing the E.I.S. (environmental impact statement) was passed.

The 1970 Highway Act repeated the environmental concern. The 1970 Act changed the participation ratio to 70 per cent federal for ABC programs. Topics was continued. The Trust Fund was extended to 1977 and $4 billion was appropriated for each of fiscal 1972, 1973 and 1974. The Highway Safety. Act was extended as Title II of the 1970 Highway Act. It is interesting to note that the Highway Trust Fund had proved so successful and so popular that in 1970 the Airport and Airway Development Act and the Airport and Airway Revenue Act were passed creating the Airway Trust Fund.

16. The Federal-Aid Highway Act of 1973

The 1973 Highway Act symbolizes the trend of changing priorities as the completion of the interstate system approaches and as the need for integrated transportation is recognized. Appropriations had peaked. The 1973 Act authorized only $3.25 billion each for fiscals 1975 and 1976.

The topics program was discontinued. In place of topics section 230 authorized off-system projects to eliminate safety hazards. Section 301 increased the appropriation under the Urban Mass Transportation Act of 1964 from $3.1 billion to $6.1 billion with 80 per cent federal participation from the Trust Fund. Section 124 opened the Trust Fund for bikeways and walkways: “sums appropriated …. shall be available for bicycle projects and pedestrian walkways…..”

The ABC (45:30:25) ratio was changed and federal participation on ABC projects was increased to 90 per cent.

The major change under the Federal-Aid Highway Amendments of 1974 was an additional provision for off-system projects. “These new funds may be used on any rural road or bridge which is toll free and not on a federal-aid system, and which is under the jurisdiction of and maintained by a public authority and open to public travel. The funds may not be used within the boundaries of any urban area with a population of more than 50,000.”

In the colonial period the emphasis was; against roads.

Roads could be used by the Indians and, therefore, were a liability. Most of the first roads were made by Armies as a necessity for making attacks. As the Indian threat decreased and as the population increased, crude roads, often only pack-trails were established. After the Revolutionary War there was a strong movement to provide roads and canals in an effort to tie the nation together, promote westward growth, and strengthen the economy through internal flow of goods. These roads were primary provided by creating private turnpike companies. With the development of the railroads about 1830 both the roads and the canals declined. The railroads maintained total dominance of the transportation picture until after 1900. The clamor for good roads by cyclists and the development of the automobile caused Congress to act. Legislation was passed in 1916 which allowed federal aid for highways without infringing on states rights. During World War I the importance of the automobile was realized and the highway program was accelerated. During the depression the highway program was accelerated even more in an effort to revive the economy. The highway system was doing so well that some thoughts were given to higher ideas such as planning and a nationwide system of superhighways. After World War II highway development was accelerated to provide the transition from war economy to peace economy. In-depth studies were conducted into the feasibility of an interstate system. In 1956 the Highway .Trust Fund was created and the interstate system was under way, top priority. The interstate system can be,attributed much of the credit for the booming economy of the 1960’s. The interstate produced a cost/benefit ratio of 2.9 on the basis of direct savings to uses along.

The peak has passed. The interstate is 87 per cent complete. Appropriations for highways has begun to decrease. What is in store, as evidenced by the planning requirements of the 1962 Highway Act and the increasing diversity of allowable applications of Trust Fund money by the 1970, 1973, and 1974 Highway Acts, for the future is a less concentrated, more general, integrated transportation policy. .

Bibliography

“Highways to Nowhere” by Richard Hebert, 1972.

“Mankind on the Move” by Christy Borth, 1969.

“Transportation Geography” by Michael Hurst, 1974.

“Future Highways and Urban Growth” by Wilbur Smith and Associates, 2/61.

“American Highway Policy” by Charles L. Dearing, 1941.

“Road to Ruin” by A.Q. Mowbray, 1969.

“Transportation Century” by George Mott, 1966.

“Locational Analysis” by Curtis C. Harris, Jr. and Frank E. Hopkins, 1972.

“The Urban Economies, 1985” by Curtis C. Harris, Jr., 1973.

“National Transportation Policy in Transition” by Herman Mentins, Jr., 1972.

“The Freeway in the-City” by the Committee of Urban Advisors for the FHWA, 1968.

“Traffic Operations Program to Increase Capacity and Safety (TOPICS): A Policy Evaluation” (Masters Thesis) by David Wright, 1969.

“Quarterly Report on the Federal-Aid Highway Program” by Norbert T. Tiemann, Administrator, FHWA, U.S. DOT, June 30, 1975 (released August 27, 1975).

“The Benefits of Interstate Highways”. by FHWA, U.S. DOT, 6/70.

“Social and Economic Effects of Highways” by the Socio Economic Studies Division, Office of Program and Policy Planning, FHWA, U.S. DOT, 1974; and the 1975 Supplement Thereto

“Highway Planning Technical Report – Financing Federal-Aid Highways – An Amplification” 7/74 by FHWA, U.S. DOT.

“The 1974 National Highway Needs Report” 1/31/75, by FFiWA, U . S . DOT. I

“Regional Decision Making: New Strategies for Substate Districts”. Volume I of Substate Regionalism and the Federal System, October, 1973, by the Advisory Commission on Intergovernmental Relations.

“The History and Development of Road Building in the United States” by. Thomas H. MacDonald, October 6, 1926, paper #16-85, A.S.C.E. Transactions.

“United States Government Organization Manual” 1974,

-by The Office of the Federal Register, National Archives and Records Service, Governor Services Administration.

“Highway Statistics Charts” 1973, FHWA, U.S. DOT.

“DOT News” (U.S. Roadway Summary & Distribution) , released 12/31/74, FHWA, U.S. DOT. .

“Federal-Aid Highway Project Procedures” 9/18/74, FHWA,U.S. DOT.

“New ederal Funds for Rural Roads – The Off-System Federal-Aid Highway. Program” 5/75,” FHWA, U.S. DOT.

“The Federal-Aid Highway Program and Federal-State ; Relation ship” 1/75, FHWA, U.S. DOT.

“The- Administration of Federal-Aid for Highways” 1/57,by The Bureau of Public Roads, U.S. Department of Commerce. “Acquiring Your Real Property for Federal-Aid Highways” 8/75 Office of Right-of-Way, FHWA, U.S. DOT.

“History of Public Works in the United States” 1976, E(prepublication draft of Chapters 3 and 4) by APWA.

“The Federal Union” 1964, by Hicks, Mowry, Burke.

“The American Nation” 1965, by Hicks, Mowry, and Burke.

“The Policy Setting: Analysis of Federal-Aid Policy Alternatives” by Richard P. Nathan, Brookings Institute for the U. S. Congress Joint Economic Committee.

“The Highway Trust Fund” 5/69, The American Road Builder, by E. M. Cope (Chief, Highway Statistics Division, Bureau of Public Roads).

“Development of the Interstate Highway System” 8/64, by The Bureau of Public Roads, U.S. Department of Commerce.

“A Brief History of the Federal-Aid Secondary Road Program” 1972, by FHWA, U.S. DOT.

“Pending Legislation Affecting Federal-Aid Highway Programs” 11/?5, APWA Reporter, by Daniel J. Hanson, Sr. (Executive Vice President, American Road Builders Association). .

“Public Roads of the Past.- Historic American Highways” by American Association of State Highway Officials.

“Development of Roads in the United States” by The Bureau of Public Roads.

“Federal-Aid Highway Funding” 5/75, FHWA, U.S. DOT.

“Laws Relating to Federal-Aid in Construction of Roads” 1971, Compiled by The Office of the Federal Register.

Long Distance Telephone interviews

11/6 Management Information Systems, FHWA

11/6 John Sharp, Program Coordinator for Historical Development, FHWA

11/6 Mr. Burdell, Chief of Federal-Aid Division, FHWA

11/6 Richard Wineburg (an Aide to Mr. Burdell)

11/6 DOT Library Information Desk

11/6 Mr. Maloney, Part-Time Historical Consultant, FHWA

11/6 Mrs. Feldman, Public Affairs Office, FHWA

11/6 Mr, Highland, Public Affairs office, FHWA

11/7 Mrs. Ritter, Works for Mr. Maloney

11/10 Dr. Suelleri Hoy, Executive Secretary of American Public Works Association Bicentennial Commission

12/1 Ellis Armstrong, Chairman, APWA Bicentennial Commission

12/9 Mr. Moss, Legislative Aide for Representative Goodloe E. Byron