Initiative process comes under siege in Colorado

An unlikely alliance of some of the state’s leading liberal and conservative voices are sounding the alarm that Colorado’s ballot initiative process is facing an unprecedented assault from established interests and lawmakers.

“In Colorado, there has been attack after attack after attack on the initiative process,” said Paul Jacob, president of the Citizens in Charge Foundation — a national group dedicated to preserving the rights of citizens to initiate ballot measures — on May 26 at Denver’s University Club. He spoke at a panel discussion sponsored by his organization and the Independence Institute, the Humane Society of the United States and Colorado Common Cause.

Wall Street Journal columnist John Fund went further. In recent years, he said, Colorado has witnessed “the most outrageous attacks on the initiative process that I have ever seen.”

State Sen. Kevin Lundberg, R-Berthoud, calls Colorado’s citizen initiative process “a very appropriate safety valve” and warns against efforts to restrict it at a panel discussion sponsored by the Independence Institute and Colorado Common Cause.
Photo by Ernest Luning/The Colorado Statesman
Democratic strategist Joe Trippi delivers the keynote address before a panel discussion on initiative rights in Colorado on May 26 in Denver. “They’re not trying to stop the initiative process, they’re trying to stop you,” he said.
Photo by Ernest Luning/The Colorado Statesman

The reason it matters, Fund said, is that “the initiative process is one of the single most dynamic ways of injecting change into a calcified system.” He continued: “It is much easier to attack the process and, indirectly, attack the people than it is to attack specific problems in the system — namely, the state legislators themselves, the bureaucracy, various special interests.” Ultimately, he added, “The attack on the initiative process is an attack on the right of the people.”

Across the ideological divide, Democratic strategist Joe Trippi made a similar plea to preserve the ability of regular folks to change the law.

“The same people who want to shut this thing down are the same people who run the Legislature,” he told The Colorado Statesman after the panel discussion. “A corporate giant who has a lot of money to have the best lobbyists working through the Legislature knows it can keep its tax loophole. It really does not want to wake up and find an initiative that takes that away. That’s what’s really going on here. The people who can control the process the way it works in the Legislature don’t like the uncertainty of what an initiative might be able to do to them.”

The ability of Colorado voters to propose and pass ballot initiatives — a right shared with voters in 23 other states — has been coming under increased threat in recent years, panelists warned, and the fight is only going to get more intense. State legislators have recently imposed restrictions panelists said are designed to intimidate — and threaten to bankrupt — residents who propose ballot measures, on top of repeated attempts to make it more difficult to reach the ballot and to pass once there.

Senate Concurrent Resolution 11-001, which had broad, bipartisan support in both chambers during the past legislative session, would have made it harder to pass constitutional amendments and imposed a geographic requirement on petition signatures. The bill floundered in the Legislature’s closing days when the Senate wouldn’t agree to a tweak made by the House, but Senate President Brandon Shaffer, D-Longmont, one of the bill’s key sponsors, said he’d be back with the measure next year and plans to place it on the 2012 ballot.

“We often land on different sides than the Independence Institute,” said Colorado Common Cause program director Elena Nunez, but on initiative rights, the two organizations agree.

She warned against viewing initiatives as the problem and pointed to numerous progressive reforms — including the state’s pioneering Sunshine Law, campaign finance and ethics regulations, and a measure that did away with binding legislative caucuses — to suggest that current critics of the initiative process might be shortsighted. “For us,” she said, “It’s been an incredibly important tool to forward the debate on open government, because when it comes to legislators, they don’t really respond well to criticism.”

Independence Institute President Jon Caldara credited Common Cause as a colleague in this fight. “While we don’t see eye to eye on many things,” he said, “we understand that, even if we disagree on issues, the ability for people to ask the citizenry to put things on the ballot is a right here in Colorado.”

Then he suggested that Colorado residents might not grasp how close they are to losing their initiative rights.

“I don’t think we quite realize what’s going on here in Colorado, but Colorado’s really becoming ground zero in the protection for citizens to have a voice in government,” he said.

The conservative activist has backed a number of initiatives over the years and was personally targeted by a lawsuit last year for “having the nerve,” in the words of defense attorney Shayne Madsen, to ask voters to weigh in on health care reform. She waved an enormous binder she said was only one of several containing motions in an expensive lawsuit against Caldara and another initiative sponsor. Had she been unable to get her clients dismissed from the suit, she said, they could have been liable for attorneys’ fees sufficient to bankrupt them.

Caldara was sued under provisions of a 2009 law — House Bill 1326, sponsored by leaders of both parties — that tightened restrictions on gathering petition signatures and also allows initiative sponsors to be sued for discrepancies on petitions they turn in.

State Sen. Kevin Lundberg, R-Berthoud, one of only a handful of legislators to oppose the 2009 bill, said he’ll work next year to undo some of its provisions. He called citizen ballot initiatives “a very appropriate safety valve, because under the gold dome, we don’t get it right every time.

Lundberg also blasted a pending lawsuit seeking to overturn the Taxpayers Bill of Rights, a constitutional amendment that requires voter approval of tax hikes, among other things. Noting that the initiative process is the lawsuit’s basis for challenging the amendment, he threw up his hands. “They’re willing to sacrifice the whole initiative concept over this one initiative.”

Nunez agreed that TABOR opponents risk tossing the baby with the bathwater.

“The initiative process debate has become a proxy about TABOR,” she said. Make no mistake, she added, Common Cause wants to see TABOR reformed. “But that’s not the debate we’re having,” she said. “We can’t have a debate about taxing, so instead we’re having it about the initiative process.”

After the panel, Trippi said the initiative process is worth protecting, even if it sometimes yields results as imperfect as the legislative process.

“It doesn’t mean the initiative will be the right one every time,” he said. “It doesn’t mean if a majority of the people vote for it, it’s always going to be the right law. But I think it’s a very healthy thing we need to preserve and protect and empower instead of restrict, dis-empower, keep all the power centralized under the dome.”


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