Dennis Polhill

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

Denver Post, January 3, 1999

Taking The Initiative

Petitions underscore people’s right

By Dennis Polhill

Initiative and referendum, or “petition rights,” reinforce the ideal that the people are sovereign. As declared in 1776, “governments are instituted among men, deriving their just powers from the consent of the governed.” While citizens across the country seek to exercise their rights, career politicians have abandoned this basic American principle. Because the initiative is effective at curbing excess, it is under attack by career politicians. Petition opponents evidently subscribe to the philosophy of Benito Mussolini: “Give me the right to nominate and you can vote for whomever you please.” They seek to control outcomes by controlling the process. Lacking the backbone to openly oppose petitions, legislators take away petition rights one piece at a time. Every year legislatures take steps to further restrict petitions.

Last year was a milestone for petition rights. The process was first adopted 100 years ago in South Dakota. One century later, it is a vital and thriving example of citizen participation and self-governance.

Its existence can be credited to the Populist Party. By 1890, political corruption in the U.S. had reached new heights. Railroads and “special interests” found it beneficial to “own” politicians. To calm public outrage, politicians wrote books to clarify which kinds of graft were proper. This arrogant overreaching of the power class was similar to government under King George III. The solution was not to retreat from people-sovereignty, but to enlarge it. The Populist Party included petition rights as a major plank in 1892 to wrest control of their government from moneyed special interests and to enlarge and re-establish the People’s sovereignty. By 1918, they had succeeded in establishing the initiative process in 19 states. Since then, the citizens in only five additional states have been able to persuade their legislatures to subordinate their self-interest to people sovereignty.

Some of the most fundamental and controversial public-policy decisions have been brought about through the petition process: Women gained the right to vote; states can’t fund abortions; the eight-hour workday was created; physician-assisted suicide was legalized; poll taxes were abolished; term limits were approved; and campaign finance reforms were adopted. Clearly, petition reforms represent all ideologies.

Furthermore, because of the diversity of issues, voters in states with initiatives on the ballot are more likely to vote. Voter turnout is consistently higher. In 1998 turnout was nearly 10 percent higher in the 16 states with an initiative on the ballot. People believe that initiatives make a difference. With initiatives they get what they vote for. With candidates it is never certain.

Supporters of the initiative process include such notables as Thomas Jefferson, Teddy Roosevelt, William Jennings Bryan, Richard Gephardt, Dick Armey, Ralph Nader, Ross Perot, George Gallop and Ronald Reagan. Woodrow Wilson opposed the initiative process as a political science professor but reversed his opinion and apologized to his students after serving as governor of New Jersey.

The initiative is a natural extension of people sovereignty. Leaders know that authority — but not responsibility — is delegated. When authority is misused its delegation must be withdrawn. The initiative empowers citizens to hold legislative bodies accountable.

The referendum petition challenges a law made by the legislature, and the initiative petition seeks to create a law that the legislature failed to enact. Teddy Roosevelt stated it perfectly in his 1912 “Charter of Democracy” speech: “I believe in the initiative and referendum, which should be used not to destroy representative government, but to correct it whenever it becomes misrepresentative.”

Only 61 citizen petitions have yielded laws in all Colorado history. Contrast that with the legislature annually passing about half of 600 laws proposed in the same 88-year period (over 20,000).

The initiative process has been critical to checking unresponsive and unaccountable government in Colorado since 1910. Colorado’s biggest petition years were 1912 and 1914. The number of initiatives on the ballot was 10 in 1992, and 8 in each 1994, 1996 and 1998. The number of issues on the Colorado ballot seems larger because of the number of questions placed on the ballot by the state and nearly 2,000 local governments.

Virtually all initiatives fall into two categories nearly impossible for legislators to address. “Conflict-of-interest” issues deal with structure, form, control, reform or limits such as term limits, tax limits, campaign-finance reform, reapportionment, judicial reform and home rule. “Controversial” issues are those like the two hog-farm issues on the November ballot. Rather than offend powerful special interests there is less risk for legislators to not act.

Probably the most comprehensive study of an initiative election was done by Dr. John S. Shockley of the 1976 Colorado election. He found that voters were more informed and voted more frequently on issues than candidates. He also found that total opposition campaign spending exceeded initiative proponent spending by 10 times. Others have confirmed that opposition spending regularly exceeds proponent spending. Tax limitation was on the ballot nine times over a 26-year period and finally passed in 1992 when opposition spending dropped to 4-1. The 1994 tobacco tax proposal was defeated with a record $7.5 million opposition spending, making 1994 the most expensive issue election in Colorado history. Clearly, interest groups generally find a more friendly reception from legislators as they work hand-in-glove to undermine people sovereignty by limiting petitions in every way possible.

In the power-and-influence business, more is better than less. If securing more means taking powers reserved to the people, that is a price they are willing to extract. It is indisputable that the General Assembly has subverted the people’s sovereignty. Whether they will continue is unclear.

A statesmanly legislature would lead by restoring some of the people’s powers and letting the people be the ultimate sovereigns as envisioned by the Founding Fathers.

Dennis Polhill is a civil engineer and is a board member of the Initiative and Referendum Institute. He may be reached at 303-278-3636 or Dpolhill@aol.com.

Process lacks checks, balances

By Karl T. Kurtz

The Colorado initiative is a flawed process for writing new laws because it lacks the checks and balance of the normal legislative process. A simple remedy of adding a few months to the initiative process to allow the legislature to act on proposed initiatives would reduce the number of issues on which we have to vote and significantly improve the quality of the ones that go on the ballot.

What is wrong with the current initiative process? Imagine for a moment that Colorado’s legislature was radically different from its current setup. To avoid confusion, let’s call this pretend legislature the People’s Assembly.

Our People’s Assembly has one chamber consisting of 100 members who are not elected but instead are randomly selected from among all registered voters. The People’s Assembly meets for a few weeks every other year during the fall general elections. As a result, the members have virtually no experience or knowledge of lawmaking.

Prior to the legislative session, any member of the People’s Assembly can propose a new law. Soon after the member introduces the proposal, lawyers and researchers for the People’s Assembly hold a public hearing to review the proposal, ask questions and offer advice. After the hearing, the member proposing the law — but no one else — can make changes to the proposal. At this point in our make-believe legislative process, the proponent of the law is required to obtain the signatures of five other members of the People s Assembly in support of the proposal.

Once these signatures are obtained, the proposal proceeds to a vote of all the members during the next scheduled legislative session. When the members consider the issue, no one is allowed to change a single word of the proposal. There is only a period for debate followed by one take-it-or-leave-it vote.

No amendments. No correction of mistakes that may become obvious in the course of debate.

No negotiation. No compromises to resolve conflicting views among legitimate competing interests. No governor’s veto as a check against an overreaching legislature.

If this were the Colorado legislature, citizens, the media, businesses and unions would almost certainly attack it as unfair, unwise, irresponsible and inflexible. Aggrieved minorities or other losers in the legislative process would demand checks and balances in the form of multiple decision points such as two chambers, committee deliberations, “readings” of the bill in each chamber and a governor’s veto.

No way that such a “People’s Assembly” could ever exist in Colorado, you say? Think again. Our fictitious legislature is, with only two exceptions, a description of how the Colorado initiative process currently works.

The two exceptions are important and supply the redeeming features of the current initiative process. The first exception is that, unlike our fictional legislature in which a small number of randomly selected voters make decisions, all registered voters who choose to go to the polls cast the votes on any initiated matter. Thus, the initiative process is as representative of the people of the state as it is possible to get.

Second, the initiative process does not substitute for the General Assembly. It supplements the work of the legislature. It serves as a fourth branch of government. It provides a steam valve for when the General Assembly sidesteps significant policy problems or rejects proposals designed to address them.

These two points justify the existence of the initiative process in the Constitution. Yet viewing the initiative as if it were a legislature reveals fundamental flaws in making laws by this means. It shows that the initiative process lacks the checks and balances that make representative democracy work effectively as the basic American form of government.

What can be done to correct the flaws? A simple change in the initiative process to require a delay to allow the legislature to consider an initiative before the people vote on it would combine the value of the people’s power of initiative with the deliberative strengths of the normal legislative process.

How would this idea work? Any proponent of a new law could follow the current practices for qualifying an initiative for the ballot including obtaining signatures from 5 percent of the voters in the last gubernatorial election. The signature deadline would be in late March, 60 days before adjournment of the Colorado General Assembly, instead of the current early August deadline. The legislature would be required to hold a public hearing on the proposal within 20 days and to cast a floor vote on it.

The General Assembly and the proponents of the initiative would have four potential courses of action.1. If the legislature enacted the proposal as originally drafted, the measure would be removed from the ballot.2. If the legislature rejected the proposal, the proponents could submit the original version (or an amended one that takes into account the objections of the legislature) for a vote of the people. The record of action by the legislature would be a part of the information supplied to voters to help inform their decision.3. The legislature could also enact an amended version of the measure, in which case the proponents would have the option of deciding whether to place the original draft on the ballot.4. Finally, as with any proposed legislation, the legislature could choose to refer its own version of the proposal to the people for a vote. This referred measure could compete with the initiative.

The advantages of this change are obvious. It preserves the right of initiative proponents to go directly to the voters if they are not satisfied by the legislature’s action. It draws on the experience of legislators in writing, deliberating, negotiating and amending new laws. It prevents the legislature from avoiding the issue. It saves the expense of a statewide election whenever the proposition is withdrawn as a result of action by the legislature. It relieves the burden on untrained, often apathetic, voters of having to make numerous decisions on complex legislative proposals. It reduces the cost for both sides of an issue, because lobbying the legislature is generally much cheaper than mounting a statewide media campaign designed to reach all voters.

The principal drawback to this idea from the standpoint of proponents of the initiative is that it adds time to the process. The current Colorado Constitution requires completion of the initiative qualification process three months before a general election. This proposal would increase the time lag to seven months.

An additional four months may seem onerous to those who are impatient to enact their idea — and only their idea — into law. But in the course of most legislation it is little more than the time that a traffic light takes to change from yellow to red or green. And like the yellow light of caution that prevents traffic accidents, the time needed to allow the legislature to act on a proposed initiative is a small price to pay for preserving the safety and welfare of the people of the state of Colorado by avoiding ill-considered laws.

Karl T Kurtz is director of state services for the National Conference of State Legislatures headquartered in Denver. His views do not necessarily represent those of NCSL.

Losers in some ballot measures fight back

By Arlene Levinson

Americans decided 235 statewide ballot measures, or thought they did, in the November elections. But no sooner were the votes tallied than the warnings started coming: Voters’ decisions on several major issues may have to wait, held up by legal action and other challenges.

Mining interests immediately went to court to block implementation of Montanans’ vote on an environmental measure targeting gold mines. Opponents who saw Washington voters ban affirmative action echoed warnings of battles to come.

Nevada agreed with Alaska, Arizona and Washington state in approving the medicinal use of marijuana. But Nevada will not have such a pot law unless voters approve another measure in 2000, and even then, the state attorney general’s office says federal law may still stand in the way.

In California, the failure of a ballot measure backed by both parties, who had hoped to catapult California to center stage among presidential primaries, has party officials scrambling.

Voters declined to change rules that allow primary voters to cross party lines, prompting state Democratic Party chairman Art Torres to say he did not want such a “beauty-contest primary” unduly influencing the choice of nominees. Caucuses or a state convention may be held in the months before the scheduled primary, he said.

The Montana Mining Association and two companies filed suit in federal court in Helena to nullify the mine measure. “If we don’t get this initiative invalidated, gold and silver mining in Montana will be essentially gone,” said Jill Andrews, executive director of the industry group.

Cyanide is used to separate gold and silver from ore. The initiative passed in November bans use of the chemical in new mines or expanding those mines already using it. Andrews warned the ban will cost jobs and devastate communities.

But critics say cyanide harms the environment.

“They’re asking the judge to allow them to buy elections and to snub Montana voters,” said Jim Jensen of the Montana Environmental Center, the measure’s chief sponsor.

Washington state voters joined Californians who two years ago barred racial or gender preferences in government hiring and contracting and in college admissions.

Voters were saying, “‘It’s time for us to look beyond what makes us different,’” said John Carlson, a conservative commentator who led the campaign for the measure.

But Marty Larson, a community college student and member of a group that fought the measure, said, “I foresee a lot of court cases and basically a lot of angry people.” Without affirmative action, he said, “cronyism and nepotism will once again flourish.”

Other measures were less contentious.

• Iowa and Florida became the first states in 22 years to approve measures acknowledging women’s equality with men. Utah got rid of a constitutional provision protecting women’s assets from their husbands’ debts.

• Voters said they wanted stadiums in Denver, San Diego and Cincinnati.

• Oregon voters agreed to discard their voting booths: starting next year, all ballots will be cast by mail. The state also agreed to open adoption records for people over 21.

• South Carolina voters ended the state’s century-old ban on interracial marriages.

• Utah joined most other states in stripping imprisoned felons of their voting rights. The Utah Chapter of Citizens United for the Rehabilitation of Errants said voter rolls among the state’s 5,000 inmates had swelled from 5 percent to 30 percent since the measure was announced.

• New Hampshire voters rejected lowering the age of state senators from 30 to 25. They also turned down a proposal to edit the state constitution with gender-neutral alternatives to such phrases as: “His excellency, the governor.”

“I voted no because I know it doesn’t make a bit of difference,” said Jennifer Warren. “We know women are smarter anyway.”

Some of November’s votes were just new chapters in long-running controversies.

Gay marriage, for instance.

Alaskans voted to put a gay-marriage ban in their constitution. And Hawaiians told their Legislature to draft a law against same-sex marriages, the latest response to a 1993 state Supreme Court ruling that Hawaii has no right to ban homosexual marriage, because that would deny some citizens the rights provided others.

That ruling led to gay-marriage bans in at least 30 states and the Defense of Marriage Act enacted by Congress.

“People are taking a stand for traditional marriage,” Mike Gabbard, a leader of the Save Traditional Marriage group in Hawaii, said of November’s outcome.

But Joseph Melillo, who with his partner and two lesbian couples sued the state of Hawaii for denying them marriage licenses in 1990, warned, “It’s putting into our state constitution a discriminatory clause that will distinguish us from other people.”

In Colorado, voters in Fort Collins defeated a measure to protect gays and lesbians from bias. The proposal was especially emotional there sincethe beating death of Matthew Shepard, a gay student from the University of Wyoming who died in a Fort Collins hospital.

“National gay advocacy groups built this up as an important watershed, and I think it was,” said Fort Collins lawyer Jon-Mark Patterson, an ordinance opponent. “It showed most people here don’t want the government to take a side in a controversial moral debate.”

Michigan voters rejected a measure that would have made physician-assisted suicide legal. Dr. Jack Kevorkian, who says he’s attended more than 120 deaths, called the measure “crazy” and too restrictive.

“Michigan wants compassion and comfort for those facing their final days,” said Dr. Cathy Blight of the opposition Citizens for Compassionate Care and president of the Michigan State Medical Society. “They don’t want death bureaucracies or manipulations of vulnerable patients.”

In the continuing back-and-forth over abortion rights, Colorado voters agreed to require parents be notified when minors seek abortion but rejected a ban on late-term procedures, as did Washington voters.

American Indian tribes in California won strong approval to continue running casinos without state control, a measure hard fought by Nevada gambling interests and costing both sides more than $100 million.

Opponents filled the airwaves with warnings that the measure would lead to unregulated, untaxed gambling statewide. The tribes countered that impoverished Indians’ lives were bettered by gambling.

Proposition 5 is “the first time that wealthy business interests have not been allowed to sacrifice the lives of Indians and future Indians to satisfy their greed,” said Anthony Pico, chairman of the Viejas tribe in San Diego County. In animal-related issues, Californians banned horsemeat sales and the use of steel leg traps. Minnesotans passed constitutional protections for hunting and fishing. Utah voters made it harder to change wildlife management practices through citizen initiatives.

California voters narrowly adopted a 50-cent-a-pack cigarette tax hike to pay for social services for families with children under 5. The outcome was not known for several days, after absentee ballots were counted.

“This is wild. Talk about a horse race,” said Rob Reiner, the director-actor who was the measure’s backer.

Arlene Levinson writes on national issues for the Associated Press.

Feudal rulers have always preferred dutiful servants. Things have not been the same since Magna Carta in 1215 first guaranteed the right to petition about grievances. The nuisance of citizen involvement in their government was further enlarged in the First Amendment to the U.S. Constitution, which protects the petition and other free speech rights. Petition rights were formalized in the Colorado Constitution in 1910 as Initiative and Referendum. The Legislatures displeasure with petitions is demonstrated by its parade of attacks.

The current attack is House Concurrent Resolution 1998-1004. HCR-1004 will frustrate petitions for amending the Colorado Constitution, by increasing the signature requirement by 20%. HCR-1004 masquerades as reform by reducing the signature requirement for citizen initiated statutes, and protecting citizen-initiated statutes from legislative tampering for 2 years (unless 2/3 of the Legislature wants to tamper with the statute, in which case tampering would be allowed).

HCR-1004 is founded on several false beliefs:

One: There are too many initiatives. “Too many” is subjective. One is too many, for someone who disagrees with the idea of citizens controlling the government. All petitions are offensive to politicians, because the initiative process is an alternative method used only when the Legislature does not act. Petition use increases when legislative bodies are out of touch. The already difficult Colorado procedures insure that over 90% of petitions fail to reach the ballot. Should the voice of the people be further restricted or should the Legislature do more to respond to the peoples critical needs?

Two: There are too many amendments to the Colorado Constitution. Who should say what is “too many”? The low pass rate for proposed constitutional amendments suggests that voters are rightfully cautious about citizen initiatives. Elections work. Only 36 of 113 (32%) on the ballot in 86 years have passed. On the other hand the Legislature has originated 62 amendments. Since 1962 over 70% of amendments to the Colorado Constitution have originated in the Legislature. Because HCR-1004 does not seek to limit the Legislature, it fails in its alleged objective of reducing excess constitutional amendments.

Three: Many constitutional amendments should be statutes. This is true for a few, but not “many.” There have been only 36. Over half are indisputably constitutional, because they deal with governmental structure: home rule, recall petitions, judicial reform, reapportionment, number of legislative seats, annexation votes, and term limits. Probably half of the remainder are properly placed in the Constitution. Thus, a maximum of 9 issues would have been potential candidates for statutory instead of constitutional initiatives.

The authority to legislate is delegated to the Legislature by the sovereign people of Colorado. In so delegating, the people “reserve to themselves the power to propose laws and amendments” by petition. The legislature has no duty or authority to subvert petitions. In fact the legislature is entrusted to protect, defend, and enlarge the process. As the Colorado Supreme Court explained, “the general assembly is vested with power, subject to limitation(and) is divested of all discretionary authority(and) may not make any other limitation than that provided in the constitution” (Yenter v. Baker, 1952).

In another case, the state court affirmed the importance of the petition right: “The initiative power reserved by the people is to be liberally construed to allow the greatest possible exercise of this valuable right.” (Glendale v. Buchanan, 1978).

Improvement must begin by recognizing that direct initiatives deal effectively with “conflict of interest” issuesissues where the legislature is reluctant to act because the issues involve restrictions of legislators power. Valuable public service can be provided by reforming procedures that encourage abuse. In particular, citizen initiatives are a good way to cure problems that the government has created in the initiative process itself. These include: excessively long and confusing titles, unnecessary delays in assigning ballot numbers, inconsistent court rulings in both time delays and substance, subversion of referendum petitions, arbitrary signature invalidation, technicalities, unreasonable cure methods and periods, dysfunctional recall petition procedures, and prejudicial blue book (citizen election guide) drafting.

Initiatives are an essential part of the system of check and balances in our state Constitution. The legislature, instead of treating initiatives like a nuisance, ought to honor them, and enact reforms to simplify the process.

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

Life would be so much more pleasant for Colorado elected officials if they could somehow figure out how to be representatives of the people. Their failure to act on various popular ideas, viewed by them as repugnant, proves their reluctance to represent. The legislature’s most recent display of contempt is SCR-2, which will appear as a referendum on the November ballot. If passed, this proposal would practically derail citizen initiatives by requiring them to pass by a vote of 60% instead of the current 51%.

Tax limitations first made it to the Colorado ballot by citizen initiative in 1966. Subsequent tax initiatives were defeated in 1972, 1976, 1978, 1986, 1988, and 1990, before passing in 1992. The Colorado legislature failed to comprehend or to respond to the unsubtle message of the people. Had tax reform been enacted, it is unlikely that the voters would have passed the 1992 measure. The fact that the people would not approve tax limitations in the first eight attempts over 26 years suggests not only that the people are very cautious, discrete, and responsible in approving initiatives, but that they would prefer for legislators to deal responsibly with issues.

Colorado elected officials were offended again by the term limits issue. When term limits were proposed into the Colorado Senate in 1988 by Terry Considine, only three other Senators could find their way to support the bill. Considine became the proponent of a citizen initiative and succeeded in getting term limits on the ballot in 1990.

The initiative is the process by which a citizen may propose a law to the voters by circulating petitions. Not only did the people approve term limits by 71% but the issue took on a life of its own sweeping the nation. The Republican Revolution of 1994 used term limits as its anchor issue in the Contract with America.

The reaction of the Colorado legislature has been to attack both the message and the messenger: Term limits and tax limits are a bad idea. The citizens are uninformed and incapable of making prudent judgments. The initiative process is being abused by extremists who must be stopped. The initiative process, in spite of repeated court rulings against the actions of the State of Colorado as blatant violations of constitutional rights, continues to be attacked by the legislature. In a 1988 unanimous ruling of the U.S. Supreme Court against the state of Colorado prohibition of paid circulators was stricken. The court stated The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment. A 1994 U.S. district court used similar reasoning to strike down Colorado s requirements for circulator badges, black ink signatures , and blue ink petitions. The fact that the initiative is a “reserved power” in the Colorado Constitution and is not a right bestowed by the legislature, has done little to deter legislative infringement.

The initiative process is the most pure representation of popular will that exists today. By definition, it is philosophically neutral. It cannot lean to the left or to the right. It can be abused only to the extent that moneyed interests wish to influence an election outcome via campaign. Because it is far more difficult and expensive for the moneyed interests to influence a statewide election than to influence the legislature, they oppose the initiative process. These moneyed interest are the natural allies of the entrenched career politician. Together they represent a powerful, controlling, ruling elite. They look down and patronize the masses with their insider clichs, “those who are organized win and those who are not organized pay the bill.

To keep the masses divided they have tricked the people into believing that the political battle is between the left and the right. They allege that all that is needed is for a few more of the correct label to join in the fray. The peasants dutifully fight the good battle. One side or the other wins the election, but not in sufficient numbers. The truth is that the political battle is as it has always been. It is the people versus the rulers.

Instead of choking the initiative process, like the legislature is trying to do with SCR-2, it should view it as a tool to sense and to measure the will of the people. With a fresh outlook the legislature would find that the ballot can be used to their benefit by diffusing hot issues, by dismissing conflict of interest issues, by sensing the pulse of the people on marginal issues, and by forcing themselves to act on critical issues. The right to petition will not die. Why not be in tune with the people?
——————————————————————————–

Dennis Polhill is a Senior Fellow with the Independence Institute.

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

——————————————————————————–

Copyright 2000 II