The shenanigans undertaken by former Colorado Springs lawmaker Doug Bruce last year likely gave the bill added momentum. It would have been difficult for even sympathetic lawmakers to argue either in favor of Bruce’s actions or that his actions didn’t expose the system as open to abuse.

Bruce wrote perhaps the most influential ballot initiative in Colorado politics, the nearly two-decades old Taxpayer Bill of Rights (TABOR), which requires lawmakers to submit tax hikes to the voters for approval at the ballot box. TABOR is loved and hated. It’s the same with Bruce. Last year he appears to have authored and financially backed three controversial tax-slashing ballot initiatives– Proposition 101 and Amendments 60 and 61– that would have pared Colorado’s already thin revenue stream to a creek or a trickle, depending on whom you ask.

Bruce lurked anonymously behind the scenes, perhaps fearing his reputation as a hot-head public personality and anti-government crusader would hobble efforts to pass the initiatives. He allegedly sent emails to the proponents of the measures signed only as “Mr X” with writing and strategy instructions. He also housed professional signature gatherers in Colorado Springs-area apartments he owns and never reported the in-kind or any financial support he was providing to them, a clear violation of state campaign finance laws.

Yet he seemed beyond the reach of the law, which he flouted repeatedly for months, dodging repeated efforts on the part of state officials to serve him a subpoena. The state was seeking to depose Bruce at a campaign finance hearing on the three initiatives.

Carroll and Court’s House Bill 1035 requires initiative language on ballots to include information about who authored proposed amendments, propositions and referendums. Voters may think differently about proposals once they know who is behind them– that is, whether the author is Doug Bruce, the Independence Institute, Focus on the Family, ProgressNow, the National Rifle Association or any other special interest.

In addition to the ballot-initiative bill, Carroll is pushing for greater government transparency with a number of other bills, including a taxpayer empowerment act, which would require all government contracts be posted online for the public to view, and a bill that would establish a government-services auditing website, which would likewise open up government finances to greater public scrutiny.

Rep. Court has been a longtime ballot-initiative-process watcher and has successfully spearheaded efforts in recent sessions to pass bills tightening up the laws governing the process.

[Image: Morgan Carroll ]

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Photo/Miss_Colleen, Flickr)

“We’re such a die-hard initiative state,” said state Rep. Lois Court, a Denver Democrat who has been watching the ballot initiative process in Colorado for the past two decades. “We believe strongly in direct democracy here … but the initiative process needs fixing.”

Court says the state’s infamous monster ballots, where lists of candidates are supplemented by growing numbers of complicated paragraph-titles describing proposed laws, are just a symbol.

“We just make way too much law in Colorado. That’s the basics of it. And it’s not the best way to make law.”

When “direct democracy” doesn’t work
Court says that Colorado may have finally reached a tipping point on the issue and that citizens may be ready to accept reform. Amendments like the state’s famous Taxpayers’ Bill of Rights or TABOR, which strictly shapes how lawmakers can raise revenue and complicates stand-alone constitutional and statutory spending requirements, like Amendment 23, exemplify the problem.

“It’s a fundamental question about the kind of government the founders of the country established. They designed a democratic republic, where the people have the ultimate sovereignty but where the people elect representatives to make decisions in their place.

“If we in Colorado agree on that, then we can agree also that we are now struggling to function according to that design. Right now we’re at a bit of loggerheads. As lawmakers, on so many issues our hands are tied and our ability to make government work is increasingly diminished.”

State lawmakers address petition fraud
Court has sponsored a ballot-initiative reform bill, H.B. 1326, with House Speaker Terrance Carroll this month, legislation that would better clarify the enigmatic initiative process and restore integrity by preventing fraud. The strong bipartisan support for the bill underlines a growing consensus among leaders in the state that “direct democracy” here — where laws are passed by voters at the ballot box rather than by elected officials in the legislature — has become a problem.

Most analysts agree that fraud is tainting the petition process, where signatures are gathered in support of placing initiatives on the ballot. Indeed, petitioning problems have been widely reported, some of the instances glaring. At a hearing in March, Carroll and Court introduced their reform bill with video of a 14-year-old girl being paid to gather signatures in clear violation of several of the state’s laws. A long list of examples of forged signatures and faked state residencies colored the hearing.

But the problem goes well beyond petition fraud.

Citizen-initiated constitutional amendments cause more problems
“The core problem here is just how easy it is to amend the state constitution,” said Doug Friednash, one of the state’s top constitutional attorneys who has been hired to contest a series of laws made through the initiative process.

Statutory law — law mostly written by legislators to clarify or help carry out government responsibilities — can be changed, updated, strengthened or weakened through layered vetting processes, which include public debate and review by the state’s Legal Services attorneys. That’s the kind of law voters should be encouraged to propose, according to Court and Friednash.

By contrast, once citizens vote to amend the constitution, it’s much more difficult to address any subsequent problems.

“You don’t want to make constitutional changes without seriously vetting the proposals,” Friednash said. “If there are fundamental problems [with an amendment], we’re basically stuck with it. We can’t fix it.”

Friednash is presently representing anti-Amendment 54 plaintiffs challenging the so-called clean government amendment passed last November, which concerns campaign contributions and, according to supporters of the amendment, aims to combat pay-to-play political corruption. The action following the amendment’s passage is a sort of suspended animation, as the amendment goes into effect at the same time the suit to prevent it goes forward.

Ballot measures have become tools of special interests
Campaign finance-related corruption is exactly the kind of complicated topic best addressed through statutes not constitutional amendments, according to Jennie Drage Bowser, an elections expert with the National Conference of State Legislatures and a member of a special Initiative and Referendum task force put together by the NCSL in 2002.

“Legislators and initiative proponents really should work together. Proponents who have an idea should get in touch with lawmakers. Nine out of ten times [proponents don’t] ask lawmakers what they think or how they think it would be best to approach the issue.”

Bowser says legislators and legislative staff are in office basically to work on the often-complex issues that concern proponents and to introduce solid legislation on behalf of constituents.

“Lawmakers have all of these resources at their disposal,” she said. “They can lean on institutional memory, case law. They can get experts in the building to help write law based on what the proponent has in mind.”

Bowser says the explosion in popularity of the initiative process coincided with a political tension that rose up in the fractiously partisan 1990s, a tension that continues to this day. And that process has steered citizens away from lawmakers, who they see as gatekeepers who will thwart their plans.

“You saw that antagonism grow in the Clinton years. All of the sudden, you have mutual antipathy where you should have cooperation.”

You also have special interests, she said, organizations and movements that use the process to circumvent legislative scrutiny.

“Advocates of the initiative process will argue that the role of special interests is exaggerated. But that’s not what we found [on the NCSL task force]. On the left and the right, if you follow the money, you will see that a lot of the ideas originate outside the state.”

Anti-abortion and anti-gay initiative campaigns of the 1990s in Colorado, for example, were organized and bankrolled by the national Christian Coalition. Although there’s nothing illegal about that, it goes against the conception of direct democracy that wins the support of citizens.

“Initiatives are often not what you would typically consider the result of a ‘grassroots’ movement,” Bowser said. “It’s worth seriously considering whether that’s how you want laws and policies created in your state.”

The NCSL task force Bowser contributed to included advisers from many areas of expertise and across the political spectrum. In the end, it recommended against states adopting the initiative process. It concluded that the initiative was now often a tool of special interests; that the parties looking to make law through the process were often anonymous, their motives unclear, their proposals shielded against routine debate, deliberation and compromise; that there weren’t enough checks and balances built into the process; and that the laws made through the ballot box often hampered the ability to develop policy in a “comprehensive manner,” where proposed law didn’t end up contradicting or unnecessarily complicating existing law.

State Rep. Kent Lambert, R-Colorado Springs. (Photo/Bob Spencer, The Colorado Independent)

Colorado Springs Republican Kent Lambert waylaid state AFL-CIO Director Phil Hayes at a House committee hearing Tuesday, asking out of the blue whether Hayes supported “the secret ballot.”

Clearly in reference to the debate over the controversial Employee Free Choice Act, Lambert’s question stunned members of the committee, who were there to discuss Speaker Terrance Carroll’s bill to limit fraud in the ballot-initiative petitioning process. Hayes was testifying in favor of Carroll’s legislation.

“I don’t think you have to answer that, Mr. Hayes,” said the committee’s chairwoman, Nancy Todd, D-Aurora, who pushed her microphone out of the way and looked down the table at Lambert.

The packed hearing room was suddenly silent, the sparks of temper a drastic change in tone from the notably affable proceedings that preceded it.

“[The question] speaks to the credibility of this witness. I think it speaks to his credibility,” Lambert said defending himself, clearly upset.

“Are there any other questions for Mr. Hayes?” Todd asked.

Hayes had been testifying that the AFL-CIO had “self-identified” many of the problems in the initiative petitioning process that Speaker Carroll’s bill aims to address.

“We feel we can meet the standards outlined in the bill and that other groups can as well.”

Hayes took particular issue with the practice in Colorado of hiring third-party petition circulators. In one instance of the practice played on a video at the start of the hearing, a man working to collect signatures in support of Proposition 49 subcontracted the work to a 14-year-old. He paid her 75 cents per signature and told her to say she was 18 if anyone asked, the legal age in Colorado to collect petition signatures.

Hayes said that the practice was unethical on many levels, including from organized labor’s perspective.

“She’s a minor and he’s giving her this cut-rate wage,” a fraction of what the man who hired the girl would receive for her work, Hayes said.

After the hearing, Hayes said he would have liked to answer Lambert’s question.

“I wanted to but we were instructed only to speak to the bill. I dropped off a card with [Lambert] later and told him I would talk to him about [the AFL-CIO position on the secret ballot] anytime.”

The surprise question didn’t rattle him, he said.

“I’m a labor guy. I get beat up all the time.”

(Photo/ChicagoEye, Flickr)

The bill focuses on the flaws that have come to define signature-collecting in the state, which is how voters determine which initiatives will make the ballot. Many of the problems addressed by the new legislation, H.B. 1326, marred last election season, when 128 versions of proposed initiatives were filed with the state and 14 appeared on the ballot to make it the longest voter ballot in the country.

Among other measures, the new law would seek to beef up identity requirements and legal recourse in cases of fraud; require petition circulators to provide specific forms of identification and enroll in training provided by the secretary of state’s office; strengthen laws against using so-called third-party circulators, or people paid by the circulators whose names appear on the signed petition sheets; and call for paid circulators to receive hourly wages or salaries instead of being paid according to how many signatures they gather, a move that has cut fraud in other states by eliminating a prime incentive.

The hearing opened with video of a 14-year-old girl hired to collect signatures for Proposition 49. She admitted to knowing nothing “about, like, laws or government” and said the man who hired her told her to say she was “18 if anyone asks.” The law states petition circulators must be 18 or older.

The hearing room was also festooned with photos of empty lots, pay-day loan buildings and other random non-residential addresses petition circulators listed as their Colorado home addresses. These circulators, although clear perpetrators of fraud, are currently beyond the jurisdiction of the state authorities who would investigate them.

Yet even if these circulators could be found, as Citizens for Integrity’s Mark Grueskin explained to the committee, the state’s hands are tied.

“Once the secretary of state certifies the signatures before the election, there is no legal challenge that can be raised,” he said.

It was one of the open secrets about the process that were revealed every five minutes or so during the first hour of the hearing, a laundry list of loopholes and vagaries that drew nods and head-shakes and ironical laughs from among the lawmakers and witnesses.

Bill co-sponsor Rep. Lois Court, a Denver Democrat, added two sections to the law that demonstrated her familiarity with the initiative process, which she admitted was a longtime area of interest — one of her “passions” both as a lawmaker and a citizen.

Where the main objective of the bill is to “put teeth and trust” back in the system by preventing fraud, Court included measures to ensure voters were better informed.

As a result, the law would place language on all petitions that clearly state that those who are signing the petition are in favor of placing the initiative on the ballot.

The law would also make a distinction on the ballot between proposed changes to the state Constitution and proposed changes to state laws or statutes. The first would be labeled “amendments” and the second “propositions.”

Court said the point would be to remind voters of the very significant distinction and begin to “permeate voters’ consciousness.”

In his testimony, Grueskin reinforced Court’s concerns. With the initiative process, he said, “we’re asking electors to become legislators” and any process that allows a 14-year-old to be a public representative of that process is ripe for abuse at all levels.

“The person asking that of an elector should know something about government and the law,” he said.

The hearing was characterized by a tension that hangs about the initiative process at all levels, one where lawmakers are loath to tread on the citizens’ fundamental rights to directly participate in their government, to make laws as a matter of free speech, but where they also feel compelled to protect citizens from abuse and to assume their responsibilities as representative officials elected and paid to dedicate themselves to making laws and running the government in the place of their busy constituents.

Pete Hamill of Colorado Concern and the Denver Chamber of Commerce, who also testified in favor of the bill, said he thought citizens “needed to know the process is solid.

“Citizens in Colorado feel strongly about the initiative process, but I think we have reached a tipping point, where trust is eroding,” he said.

Now that the bill has cleared the State, Veterans, and Military Affairs Committee, it will move to the Appropriations Committee.

(Photo/anthonygrimley, Flickr)

House Speaker Terrance Carroll, D-Denver, introduced legislation on Tuesday designed to address abuses that plagued the ballot initiative process in Colorado last election season.

Co-sponsored in the House by Lois Court, D-Denver, and in the Senate by Majority Leader Brandon Shaffer, D-Longmont, the bill aims narrowly to address the petitioning process, where signatures in support of initiatives are gathered, and particularly “concerns raised regarding the use of paid petition circulators,” according to a House Democratic Party press release.

Given the attention petition fraud garnered last year in Colorado, the speaker’s new bill would seem a natural for bipartisan support. And in a break with the partisan showdowns that have characterized this session so far, House and Senate Minority Leaders Mike May and Josh Penry have signed on as sponsors of the bill, as has Republican Rep. Amy Stephens of Monument.

“We must hold everyone to the highest standards when we are attempting to change our constitution or statutes,” Carroll said. “This bill will help to end the fraud and abuse we witnessed firsthand in 2008.”

The proposal language and petition signature threshold requirements for getting citizen-created statutory laws or constitutional amendments on Colorado’s ballot are some of the least constrained in the nation. It’s easy to meddle with state law, and that fact brings with it a host of problems caused by well-meaning but uninformed citizens as well as carpetbagging activists market-testing the viability of national causes.

Last year complaints were filed with the secretary of state concerning the petition process for at least four of the state’s ballot initiative proposals, which numbered well into the double digits. Fourteen initiatives made it onto the Colorado ballot, the longest ballot in the country.

In the run up to the election, for example, petition circulators paid by Colorado Springs-based Kennedy Enterprises to gather signatures for proposed Amendments 47, 53 and 59 allegedly told citizens it was legal to sign someone else’s name and that you didn’t have to be a registered voter to sign the petitions. Both suggestions are in clear violation of the state’s petition laws.

Protect Colorado’s Future, a pro-labor group, hired signature-getters who had only vague knowledge of the petitions, leading voters to commit fraud by encouraging them to sign their names multiple times.

Proposed Amendment 46, the “civil rights initiative” backed by California-based anti-affirmative action consultant Ward Connerly, also came under legal fire. The petition drive for the amendment was marked by accusations of misrepresentation as well as of signature fraud. Citizens said they were led to believe they were signing in support of a pro-affirmative action initiative. A “post-certification lawsuit” filed against the initiative in April 2008 challenged the validity of thousands of signatures, pointing out duplicate signatures, nonresident signatures, and signatures that failed to match names on the state voter lists.

As Carroll put it in Tuesday’s release: “Some paid petitioning is ripe for abuse.”

Although the bill seems likely to gain support among lawmakers, pressure from outside the Capitol may mount against it.

Last year’s Referendum O, which would have tightened the ballot initiative process, was defeated at the polls and attacked by infamous direct democracy proponents, like former Republican state Rep. Doug Bruce, the author of the Colorado Taxpayers’ Bill of Rights, which passed as a constitutional amendment in 1992.

That was the era when Colorado — long known as a “cradle state” of direct democracy — began to draw interest groups looking to field-test controversial laws at the ballot box.

In fact the state’s loose initiative rules extend well beyond signature fraud and mark every stage of the process, from drafting requirements and legislative review to title setting and the increasingly expensive and often anonymously funded campaigns produced to persuade voters to vote for or against ballot proposals. The legal wrangling that now almost inevitably trails initiatives at every stage of the process has spurred analysts as well as lawmakers to consider remedies.

A 2002 task force composed of the National Conference of State Legislators recommended initiative states like Colorado firm up the processes substantially and non-initiative states avoid adopting the ballot initiative altogether.

Carroll’s bill will likely be seen as a mere band-aid by critics of the initiative process and as an ominous opening salvo by proponents, a first shot in a wider effort to wrest power from the citizens.

(Photo/kool_skatcat, Flickr)

Thursday, in a corner of the Capitol, Kersey resident Gross attended the final Review and Comments hearing for his proposed ballot initiative. He had changed the wording of the title based on concerns of the Colorado Title Board, the panel that reviews proposed ballot initiatives. The board wanted it to be clear: The initiative proposed by Gross and former lobbyist Freda Poundstone does not aim to “limit” state revenues; it aims to “reduce” them — significantly.

Gross’ initiative would slash annual revenue by roughly $50 million in income taxes alone, based on figures from 2005, dropping the state income-tax rate rate from 4.6 percent to 3.5 percent over 10 years. It also proposes to cut sales, service and rental taxes and fees on motor vehicles and communication products and services — on car purchases and leases and on mobile phone and Internet and pager accounts, for example.

The ultimate cost to the state of the Gross-Poundstone initiative is difficult to calculate. How Gross came up with the figures set out in the initiative remains a question. Why, for example, does he propose a 3.5-percent income tax rate? Why a $2 annual tax on new vehicles and a $1 annual tax on “other vehicles”?

In their first review of the initiative, state attorneys asked Gross to address those questions and many others in a mostly ignored twenty page document. The attorneys suggested that the tax amounts he was proposing would fail even to pay for the cost of collecting them. Yet the amounts remain unchanged in the final version, the riddle of what they mean left for voters to contemplate on Election Day should the initiative be green-lighted for the ballot.

Gross has declined so far to talk to the press or the public about his initiative. Poundstone, a former lobbyist and author of the 1970s Poundstone Amendment, said she is merely lending her support to the initiative and that Gross drafted it and is responsible for any edits to the language. Gross appears to have no experience writing tax law, balancing budgets or drafting public policy. He provided no comment to the Rocky Mountain News in January for a story on the alarming nature of his initiative. He did not return phone calls last week and did not answered questions after Thursday’s hearing.

His public silence is matched by a mostly affable intransigence in Capitol hearings rooms. It’s clear that, despite reviewers’ concerns even on matters of clarity and grammar, Gross has no intention of reworking his initiative.

The so-called technical questions he was asked to address in an earlier session all still apply, even the most basic among them.

1. It is standard drafting practice to include an amending clause telling the reader what is being added to or amended in the Colorado Revised Statutes. For example, if your intention is to add a new article to title 39 of the Colorado Revised Statutes, include an amending clause that reads as follows: “Title 39, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW ARTICLE to read:”

2. Article 25 of title 39, Colorado Revised Statutes, already exists, though it was repealed in 2003. The previous subject matter of article 25 was “gift tax,” which differs from the subject of the proposed initiative. In this case, it is standard drafting practice to create a new article, such as article 25.5. Is this your intention?

Gross added no amending clause. Nor does he propose to create a new article. His initiative remains “Title 39, article 25 of the Colorado Revised Statutes.”

Further, Gross has rejected simple changes, such as adding a clarifying comma or an article to a sentence, the kind of edit that could stop competing interpretations and legal deliberations before they begin.

A sentence on the auditing process was the subject of a short exchange at the hearing Thursday:

The state shall audit yearly compliance with this reform to reduce unfair, complex charges on common basic needs.

Attorneys asked for clarification and proposed changes:

a. Is it your intent that the state do an audit of compliance on a yearly basis or that the state audit the yearly compliance with the provisions of the proposed initiative? If it is the former, would you add a comma to clarify your intent as follows: “The state shall audit yearly, compliance with…”? If it is the latter would you insert the word “the” for clarity as follows: “The state shall audit the yearly compliance with…”?

Gross said he thought it was clear enough and should stand the way he wrote it.

The changes Gross did make for this latest version — mainly the title change, from “Government revenue limits” to “Reducing government charges” — were compelled by the Title Board. Although the Title Board provides an “extremely limited review” — a fact readily conceded by the representatives of the secretary of state’s office and attorney general’s office who sit on the board — Gross was at least forced to consider that he either had to make the minor changes the Title Board suggested or be forced to file a lawsuit to get his initiative on the ballot.

(Photo/Keith Bacongco, Flickr)

And to Poundstone, the change Colorado needs comes in the form of a ballot initiative she’s co-sponsoring that would drastically limit state revenue by slashing taxes and fees. The plan, which is making its way through the review process on its way to the 2010 ballot, stands in stark opposition to the stimulus-spending mantra coming out of Washington, D.C.

The Colorado initiative is alarming at least two state lawmakers who have examined it. Sen. Chris Romer, D-Denver, said the initiative would “end government as we know it.” And House Speaker Terrance Carroll, D-Denver, suggested it would move the state down the road to anarchy.

Despite the sweeping ambition of Poundstone’s “change” initiative and the fact that it’s written in the kind of generalized language sure to draw lawsuits, the only real hurdle it faces on its way toward the Colorado Constitution is the need to secure the roughly 76,000 citizen signatures it takes to make it onto the ballot and then win a majority of votes on Election Day.

The Poundstone initiative exemplifies a problem that has increasingly plagued the state in recent years. Constitutional lawyers agree with Solicitor General Dan Domenico, who says the state’s “very liberal policy” regarding ballot initiatives all but guarantees legal battles by drawing increasing numbers of proposals and then not vetting them properly. This past election, Colorado printed the longest ballot in the country, passing famously lax Oregon and California with a list of 14 amendments and initiatives, fueling concerns that the state is becoming, in effect, a national legal testing ground, where laws can be relatively easily placed on the books to generate precedent and momentum for movements of all stripes.

Constitutional Amendment 54, for example, a so-called clean government amendment voted into law in November that mimics anti-corruption laws passed through the legislatures in New Jersey and Connecticut, has been the subject of two lawsuits that hinge on what plaintiff attorneys call the amendment’s “sloppy language.” The shoddy architecture of Amendment 54, the attorneys contend, will have untold consequences and would have been fixed had it been drawn up in the usual fashion by lawmakers. Doug Friednash, who represents one group of plaintiffs challenging the amendment, said the sloppy language of the amendment and the fact that it passed as a ballot initiative raises questions about the motivation of the authors.

“[Amendment 54] looks more like a political missile than something designed to address a serious public policy issue,” said Friednash. “People say it was designed to hit unions. That may well be true. … Connecticut dealt with the pay-to-play issue by drafting a tight law that was upheld in federal court. [Connecticut] Gov. [John] Rowland’s conviction on corruption stands as a result. But 54 wasn’t drafted narrowly like that to serve a compelling state issue.”

The Poundstone initiative isn’t drafted narrowly either.

“Government would tax the air you breathe if it could, and if they can’t find a way to do that, then they’d go around and do it with a fee,” Poundstone said in defense of the initiative.

Her initiative proposes to slash income taxes as well as sales and rebate taxes and all variety of fees on transportation and communications, focusing particularly on vehicle and phone fees. But the state’s attorneys assigned to review the initiative critiqued its language at length, pointing to undefined words and muddy phrases that could swamp the state in exactly the kind of debate currently raging over Amendment 54 in court filings but also over Senate Bill 228 in the General Assembly. The latter is a budget reform bill that would repeal the 1992 Arveschoug-Bird provision that requires any surplus of state revenues be devoted to transportation and capital construction projects.

Even a cursory reading of the Legal Services review of the Poundstone initiative suggests the vast field of legal battles that may be on the horizon.

Legal Services attorneys ask Poundstone and her ballot initiative co-sponsor Jeff Gross:

With regard to the “Telecommunications” section of the proposed initiative:

a. Are you proposing that the only fee on telecommunications be a 911 fee to be charged at the 2009 rate in perpetuity? If not, what other telecommunication fees, taxes, or charges are allowed to be levied under the provisions of the proposed initiative? Would this include a franchise fee?

b. Do you anticipate that the costs of providing 911 services will increase to the extent that eventually the fees at the 2009 rates will not be sufficient to cover the costs of providing the 911 services? If so, how would 911 service providers cover their costs so that these services may be provided in the future?

[…]

e. Are the charges on “telephone, pager, cable, television, radio, Internet, computer, satellite, or other telecommunication service customer accounts” all charges imposed by a state or local governmental entity? Are any of these charges imposed by the federal government or by private entities? If so, can the proposed initiative require that these charges no longer be imposed?

The questions in the vehicle section seem equally basic in the realm of lawmaking.

With regard to the “Vehicle” section of the proposed initiative:

a. Is it your intent that the reduction in specific ownership taxes apply to all vehicles, including commercial vehicles and passenger vehicles?

b. The proposed initiative requires that all specific ownership taxes decrease in “four equal yearly steps”. What do you mean by “yearly”? Is this a calendar year or a fiscal year?

c. How do you envision the reduction in “four equal yearly steps” to occur in practice? Currently, specific ownership tax is calculated based on a certain percentage of the value of the vehicle, and the percentage decreases periodically based on the age of the vehicle. Who will determine how much tax a vehicle owner owes under the provisions of the proposed initiative?

d. What is the purpose of reducing the amount of the tax to $2 or $1 on vehicles, rather than simply eliminating the tax? Would the cost of administering and collecting such a small amount exceed the amount of revenue produced?

e. What do you mean by “other vehicles”? Is your intent to refer to used vehicles? If not, to what type of other vehicles are you referring in the proposed initiative?

[…]

g. What does “and on $10,000, reached in four equal yearly steps, of sales prices per vehicle” mean? Does the phrase “All state and local taxes shall cease” apply to that phrase?

h. In connection with question g. above, is it your intent that state and local sales taxes not be paid on more than $10,000 of the value of a new vehicle when sold? Or, are sales taxes to cease on $10,000 of the sales price of a vehicle (i.e., $10,000 of the purchase price is exempt)? If not, what is your intended purpose? If this is your intent, would you consider clarifying this with additional language? For example, that sentence could be broken up into two sentences as follows…

Poundstone and Gross — whom Poundstone called a “gentleman caller” from Kersey — have already rejected the nine pages of suggestions prepared by the state’s Legal Services attorneys, in which the above critiques appear. Gross, Poundstone said, only made minor changes in the initiative. He didn’t return calls for comment.

Poundstone and Gross submitted their final version of the initiative to the state last week — a third version, effectively unchanged from the original.

The anti-tax duo will take the initiative as-is first to a Review and Comment hearing next week and then to a Title Board hearing, both mere formalities, as the secretary of state and attorney general’s offices have readily admitted.

“It’s up to the voters to judge the merits,” said a Legislative Services attorney who wished to remain anonymous. “We treat any and all proposed initiatives the same — this one and all of them. We’re not gatekeepers.”

(Photo/iceman9294, Flickr)

The initiative overlaps with other laws, they said, for example, and may override or undercut them. In addition to its stated reductions, it will also surely limit public funding in myriad other ways. A red light glowed on the table to remind all parties that the conversation was being recorded, as if it mattered.

Although Schroeder nodded, listened courteously, answered questions and offered opinions, he made no significant concessions. He likes his initiative the way it is. He’s not changing it, and he doesn’t have to: What goes on in the hearing room stays in the hearing room. No one else in the process will look at this substantive report. Schroeder’s “Colorado Ballot Proposal 2009-2010 #7″ will now sail toward minimal review at the state’s Title Board hearing, and then, outfitted with enough supporting signatures from citizens, will land on your amazingly expanding Colorado ballot in the next election.

In light of the list of lawsuits lining up to challenge the constitutionality of many recently passed initiatives, you would think the language of citizen ballot proposals would draw more scrutiny. But the process prevents that. Gatekeeping is intentionally kept to a minimum. Voters alone decide on the merits — constitutional and otherwise — of the state’s ballots.

“We’re here entirely to aid [the ballot initiative authors], to learn their intent and offer suggestions,” said one of the Legal Services staff attorneys after the hearing. “That’s our sole mission as laid out by the state statutes … The Title Board doesn’t look at our reports.”

Solicitor General Dan Domenico, the attorney general’s representative at Colorado’s growing number of ballot initiative Title Board hearings, fully agrees. “Oh no, I have no idea what goes on in those [review and comment] sessions. All of that is for initiative proponents. I never look at any of that,” he admits.

“I go in pretty much cold. I read the initiative maybe just before the hearing and base my analysis on what happens during the hearing. I have an old file of initiatives I bring with me that I can draw on if questions come up. [The Title Board hearing] is not a substantive review — at all. We’re extremely limited.”

On the matter of the constitutionality of initiatives, say, or their legal or legislative ramifications, Domenico said his office doesn’t consider any of that at any point before an initiative is passed. “That’s not the mandate,” he said. “The [Title Board] is not an effective check,” he said, laughing. “But we have to deal with the consequences. I wish it were.”

In addition to Domenico, the Title Board includes Deputy Secretary of State Bill Hobbes and a staffer from Legal Services, all of whom at the hearing focus exclusively on answering two questions: Does the initiative under review restrict itself to a single issue? And does the “title” — the short description that will appear on the ballot — accurately describe the contents of the initiative?

The idea is to prevent initiative authors from folding topics together so that, in effect, they would force voters who want to support one part of an initiative to vote for that part as well as something else, whether knowingly or not. Authors also can’t clumsily muddy the initiative topic or write it to intentionally confuse voters, who might think they’re voting for stricter pollution laws, for example, only to discover the opposite.

In other words, as long as you stick to a single subject and write clearly, you can propose pretty much anything.

“Yep,” said Rich Coolidge, spokesperson for the secretary of state’s office. “It’s a citizen-initiated process. It’s for the voters to judge [in deciding] to accept or reject the proposals.”

Many analysts of ballot initiatives don’t consider the state, much less state lawyers, as an integral or even desirable part of the initiative review process. Rather, the requirement to secure the right amount of citizen signatures to place an initiative onto the ballot is what matters — as well as the vote itself, the theory being that in both cases it’s the citizens directly who are deciding to advance initiatives and make them laws.

It’s not a perfect system, said Elena Nunez, program director at Common Cause, a citizen advocacy organization. “But we think it works. It gives citizens the opportunity to make changes and reforms that legislators just won’t touch, like campaign finance reform, for example … Historically, voters are good judges. They toss aside bad initiatives all the time.”

Nunez said the Colorado review process may be lean but it’s a process at least. “The comments Legislative Council provides are very thorough and helpful, 10 and 20 pages of comments. Those are great.”

Click to download the Initiative & Referendum Institute report (PDF)

Although research has downplayed the role of special interests, it hasn’t fully taken into account Colorado’s recent explosion in the initiative process.

In the 1990s, for example, when the present wave of ballot initiative popularity began, the national Christian Coalition and other religious right organizations poured $387,000 into the state’s so-called parental rights initiative campaign.

Four years earlier, the Christian Coalition backed a Colorado initiative that would have prohibited the state from adopting anti-discrimination laws for gays and lesbians.

There are presently 10 proposed initiatives in the state docket for 2009-10. That number is likely to grow quickly in the next few weeks so that Title Board hearings can be set and signatures collected in time to make the ballot.

That’s one of the more popular set of ideas animating attendees at the Conservative Political Action Conference (CPAC) this week in D.C. and, Colorado voters will be pleased to learn, one that also informs an amendment appearing on the list of proposed initiatives for the 2010 ballot.

But hey, why not? It’s Colorado, home of the amazing expanding ballot.

Ballot Proposal 2009-2010 #2, “Verification of Qualifications for Office of President,” was submitted for review in December. It is the work of Littleton residents Kathleen Riggs and her husband Justin “J. Wosley” Riggs, author of the blog Your Fellow Citizen, which features letters he has written various officials on the matter of Obama’s birth and related thought-pieces.

Per my letter on January 28th of this year, due to the lack of response from the FBI, I am renewing my request with your office to release the information referenced in Senator [Lamar] Alexander’s assertion that an investigation has been performed in regards to Mr. Obama’s eligibility to hold the office of President, and that Mr. Obama has indeed been found to be a natural born citizen (per his letter dated January 5, 2009).

Et cetera.

For the record, team Riggs has also questioned the natural-born-ness of John McCain’s citizenship and have been unsatisfied in their efforts to get to the heart of that matter as well.

Like the blog and the letter-writing campaign, authoring and submitting the ballot proposal has been a valued learning experience for the Riggs. Having received “really helpful feedback” from the Colorado Legislative Council, they decided last month that perhaps an initiative wasn’t the right way to “really get things going” on the question of checking candidate qualifications.

“[The Council] sent us back two pages of questions,” Kathleen Riggs tells me. “They asked us whether we thought this was addressing a single subject. We weren’t sure what that meant…. They also said this would be a statutory change and so the legislature could change it in the future. We thought that would be weak. Also they said [our amendment] would put state officials in charge of verifying candidates for federal office. They asked whether we had reviewed federal laws because I guess [the amendment] would be putting state law over federal law and so would face legal challenges.”

Last month, Team Riggs withdrew Colorado Ballot Proposal 2009-2010 #2.

“Yeah… We thought maybe we’d take it to a state legislator or do something else. We’re not sure,” says Kathleen.

As a high-powered lawsuit challenging the constitutionality of the amendment wends its way to court, detractors and supporters are pleading their cases in the court of public opinion, underlining the fact that the showdown over 54 is just the latest skirmish in a larger battle over the evolution of lawmaking at the ballot box instead of at the Legislature.

Critics of Amendment 54, including the attorneys who filed the suit against it last month, say its sprawling reach is a product of the sloppy approach its authors took in drafting it and of the inadequacies of the ballot-initiative process to make laws.

Supporters dismiss those arguments as a misreadings of the amendment or as artful maneuvering. They say the so-called clean-government amendment is a powerful weapon in the fight to combat pay-to-play-style government corruption, the sort that made national tabloid-style news with the indictment of impeached Illinois governor Rod Blagojevich, who allegedly traded state work contracts as well as political positions for campaign contributions and other favors.

Amendment 54 outlaws campaign contributions made by individuals with ties to government contracts, as well as contributions made by their family members.

Yes, that’s the most basic reading and that’s why voters supported it, says Doug Friednash, who with lead counsel and Colorado constitutional lawyer Jean Dubofsky, represents one group of plaintiffs challenging the amendment. “We understand why contributions should be limited. There’s no argument there,” he adds, but this amendment is “so loose, so sloppily drafted,” that it demonstrates the deep flaws in the initiative process to make laws and calls into question the motivation of its authors.

“When you look at how other states address pay-to-play kind of corruption, this amendment looks more like a political missile than something designed to address a serious public policy issue,” says Friednash. “People say it was designed to hit unions. That may well be true, but it does a lot more than that. Look at Connecticut. They dealt with the pay-to-play issue by drafting a tight law that was upheld in federal court. [Connecticut] Governor Rowland’s conviction on corruption stands as a result. But 54 wasn’t drafted narrowly like that to serve a compelling state issue.

“If you’re on a Denver nonprofit board that has a government contract and your brother runs for city council in Rifle, you can’t contribute to his campaign, even though there’s no connection to any of the contracts your nonprofit may be bidding for. … That kind of complication will just expand.”

Once again, a voter-approved Colorado amendment winds up in court
Friednash says the case will likely not be heard for some months, but he is in the process of filing a complaint requesting the court to grant an injunction against implementation of the laws that Amendment 54 puts into effect.

The plaintiffs — including the University of Denver; Pat Hamill, president and CEO of Oakwood Homes and a member of the DU board of trustees; Dan Ritchie, DU chancellor emeritus and chairman and CEO of the Denver Center for the Performing Arts; Denver City Councilman Charlie Brown; and the Children’s Hospital — argue that the amendment violates rights to free speech and association and have received funding for the suit from the nonprofit Colorado Preservation Council, a group organized specifically to oppose the amendment. A second lawsuit arguing similar constitutional violations is being pursued by public employees and trade organizations representing teachers and firefighters.

Gov. Bill Ritter and the executive director of the Department of Personnel and Administration are the defendants in the case.

Tom Lucero, former campaign manager for Clean Government Colorado, the political committee behind the Amendment 54 ballot initiative, and now a candidate for Colorado’s 4th Congressional District, says descriptions of the amendment language as “sloppy” are a red herring, and legal challenges to the amendment were fully expected and merely point to its power to address the problems it was designed to address.

“The language of the amendment was modeled after laws made to address this kind of corruption in other states,” he says, “like those in Connecticut and New Jersey and others. This kind of [legal] fight is not unique to 54, but the courts have all found in favor of those laws.”

Lucero says the Colorado Attorney General’s Office agrees with him that the language of the amendment works. (At press time, the attorney general’s office had yet to respond to requests to confirm the meeting and to comment on Lucero’s interpretation of events.)

“I was called to the AG’s office to walk through the language, and the fact is [AG John Suthers] agreed with me that the amendment does what it says it would do. The matter of constitutionality that they are raising is addressed in the language of the amendment. The attorney general agrees that protected expression is not restricted [by the amendment], that relatives [of people connected to state contracts] are not restricted.”

Central to the lawsuit challenging 54 is the contention that the amendment fails to take into account both the reality of some government contracting and the web-like relationships that define life in any complex society.

“Look at Children’s Hospital,” says Friednash. “The hospital provides care to children on Medicaid, which qualifies as a sole-source state contract. The hospital board raises funds for the hospital. If any board members or other funders also donate money to an election campaign, then Children’s loses the right to treat patients on Medicaid — even though Children’s Hospital is the only place that provides those services.

Lucero believes this line of attack is simply a misreading, maybe innocent, maybe not. Again he points to the maligned language of the initiative.

“The amendment clearly states the government has to solicit three bids. It doesn’t say it has to receive three bids, just solicit three bids… If the government solicits but fails to receive three bids, say, on Medicaid, then Children’s Hospital is unaffected.”

Are ballot proponents acting as an unelected and unaccountable shadow government?
The frustrations generated over the ambiguities of interpretation at the heart of the battle over 54 are intensified by the sense that the debate is part of a larger high-stakes contest over the way we make laws in our country — in other words, over the future workings of our democracy.

According to the bipartisan National Conference on State Legislatures (NCSL), the number of initiatives that have appeared on ballots has doubled from roughly 30 in the 1970s to 60 in the 2000s and that the number has soared since the 1990s. In the past decade, Colorado has joined California and Oregon as a top spot for initiatives. The Colorado ballot last November was the longest in the country, brimming with 14 initiatives, all of them, like 54, proposed constitutional amendments.

The NCSL argues that, despite recent efforts, outdated laws governing the initiative process render it ripe for abuse. The work of gathering the signatures required to place initiatives on ballots, for example, is dominated by a few professional firms with staff who move freely across state lines and who aren’t always required to register in the state they’re working, which makes them almost impossible to prosecute for fraud. Likewise, the people funding initiatives can use tax laws to avoid scrutiny of themselves and their motives, working in effect as anonymous legislators, as was the case with Amendment 54. As The Colorado Independent reported in the fall, the group behind Lucero’s Clean Government Colorado was a nonprofit called Colorado At Its Best, which gave more than $2 million to the campaign and whose members remain anonymous still.

The initiative process is celebrated by supporters as being a less bureaucratic more democratic approach to governance, one that depends directly on the people. But critics see the fact that we are moving away from long-standing congressional procedures toward anonymously funded, loosely regulated law-making operations as a red flag.

“Granted there are a lot of flaws in the legislative process but, as the case [against 54] demonstrates, it’s better than making law with amendments,” says Friednash. “In the Legislature there is a clear and established process of review. Whereas the process to get an amendment on the ballot includes minimal review, and once an amendment passes we’re stuck with it. We have to deal with it.”

Critics of 54 all point to one glaring example of the sloppiness of the initiative language. In attempting to define “family members,” the amendment includes aunts but not uncles. Friednash says a “slip like that would have never happened” in Congress. “Someone somewhere along the line would have pointed out that we have to include uncles as part of the family.”

He says this kind of basic proofreading mistake underlines the fact that it’s not our job as citizens to review the language of laws for errors and constitutionality. “We see the title on the ballot and follow our instincts,” he says.

In Colorado, ballot initiatives are subject to a legislative council hearing and then pass before the Title Board, which consists of representatives from the offices of the secretary of state, the attorney general and the legislative council. The main thrust of these reviews is to determine whether the ballot addresses a single subject and whether or not the title of the amendment is misleading.

Colorado Democratic Rep. Andy Kerr worked to pass a referendum in 2008 that would have made it more difficult to include constitutional amendments on the ballot. His initiative, however, failed to pass.

Lucero says the campaign for Amendment 54 was well underway last spring when he was asked to join. “The thinking behind [passing the law as a ballot initiative] was that they didn’t want the language watered down by the legislative process,” he says.

Yet it was the legislative process that created the laws Lucero says Amendment 54 is based upon and that have held up under repeated legal challenges, laws Friednash described as “tight” and “narrowly drafted to serve a compelling state issue.”

That’s not what the Amendment 54 people have created, says Friednash, adding that what they’ve mostly created is fertile ground for continuing legal battles.

“I’ve worked on a lot of these suits… with [Colorado] Amendments 41 and 42 on the books and with the onslaught of amendments that have appeared in recent years,” Friednash deadpans. “There will be no shortage of work for me.”