Guest Columns

CLARK, ISENBERG, KORTZ: RULING REINSTATES FIRST AMENDMENT RIGHTS

Judge in business-labor coalition lawsuit rules Amendment 54 is unconstitutional

Recently, a Denver District judge issued a preliminary injunction finding Amendment 54 — which restricts political speech by tens of thousands of Coloradans — unconstitutional. The order came in response to a group of plaintiffs who represent Colorado businesses, organized labor, nonprofits and such notable community leaders as Dan Ritchie, who said the new law was overly broad and vague and that it violated the rights of free speech and association guaranteed under the First Amendment.

In ruling that Amendment 54 is unconstitutional, Judge Catherine Lemon agreed with the plaintiffs that the amendment, which passed with 51 percent of the vote in November 2008, was not a close case.

Although they’re sometimes on opposing sides, individuals and organizations from both business and labor worked closely together to fight this ill-conceived amendment. This effort followed from a similar partnership that tried to prevent the passage of Amendment 54 and other ballot initiatives last November.

In both situations, Colorado Concern — an alliance of some of the state’s top business executives — worked with union officials from multiple labor groups in the state, including the AFL-CIO, the Service Employees International Union, the American Federation of Teachers and the Colorado Education Association.

Judge Lemon’s ruling demonstrates that when labor and business groups work together, the full extent of important policy issues can be exposed, and real progress can be made.

Until recently, Colorado was not a major battleground for business-labor disputes. In fact, business and union leaders had partnered previously on efforts to improve our community, working together, for example on Referendum C, the five-year “time-out” from TABOR.

But a number of proposals surfaced recently that sought to shift the political and economic balance that business and labor leaders in Colorado have maintained for 60 years.

In 2008, after seven controversial ballot measures were revisited by a consortium of business and labor leaders, four initiatives were withdrawn from the ballot and two were defeated by voters. Unfortunately, one of those proposals still passed. Amendment 54 became law, banning political contributions from holders of so-called “sole source government contracts.”

The stated purpose of Amendment 54 was to ban political giving by certain government contract holders, but it primarily sought to limit political speech and association that its authors didn’t like. Many voters realized, too late, that Amendment 54 restricted their rights to free speech and association. After it passed, no one wanted to risk the litigation and harsh penalties that could flow from inconsistent interpretations of this vague measure.

Because Amendment 54 extended to officers of an organization that held sole source contracts, it restricted the ability of board members to engage freely in speech about political issues and community causes. As a result, board members and officers of nonprofits were forced to choose between exercising their First Amendment rights and serving their communities. As a result, it became more difficult for businesses and nonprofits to attract and retain top quality board members.

Amendment 54 also prohibited the extended families of officers and board members from making political contributions. Government contractors literally became their brothers’ keepers (and their cousins’ keepers, and their in-laws’ keepers, and on and on). Political fundraising dwindled as nonprofits feared losing board members who were unfairly restricted.

For example, if The Children’s Hospital had a contract with an elementary school in Morrison to provide nursing services to its students, none of its board members, officers or their extended family members could make any political or campaign contribution anywhere in the state of Colorado. They were prohibited to donate in any race — from a county commissioner’s race on the West Slope, to an elected official in Denver to a gubernatorial candidate running statewide — regardless of whether the hospital or its board members had any contract with the county, city or state.

Because Judge Lemon embraced the protections granted by the First Amendment, groups and individuals that want to express themselves politically — whether from a business or labor perspective — have regained the right to do so.

As a result of the exhaustive efforts of business, nonprofit and labor leaders who recognized the threat our state faced, we believe that Colorado dodged a bullet this time. We are hopeful that the lessons we have learned from this experience will carry over into future labor-business compromises.

Colorado is a good place to do business and a great place to work; we can keep it that way by avoiding divisive measures that could hurt employers or employees. By working together, we will sustain our strong economy, which allows the state to attract jobs and investment.

This piece is a collaboration by Dave Clark, School District 14 Classroom Teachers Association president, Walter Isenberg, president and CEO, Sage Hospitality, and Don Kortz, chairman, Fuller Real Estate.