Amendment 71, aka “Raise the Bar,” explained

Amendment 71, or “Raise the Bar,” is a rare beast— a ballot initiative about ballot initiatives. The measure, which seeks to make it harder to change Colorado’s Constitution, has fervent support and equally fervent opposition, but the lines don’t always fall where you might expect.

Every living Colorado governor, Democrat and Republican, supports the effort. A wide and varied swath of industry groups say we need the measure to protect the state’s constitution from being easily amended. But a diverse collection of grassroots organizers, libertarian think tanks, and progressive good-government watchdogs say doing so would strip their members — and voters — of their power. Environmental groups oppose it. The oil and gas industry has ponied up big money to help it win.

With the Nov. 8 vote on Amendment 71 approaching, here’s what you need to know.

What would Amendment 71 do?

Under current law to qualify an amendment for the ballot, supporters must collect petition signatures totaling 5 percent of the votes cast during the last election for Secretary of State— right now that’s 98,492 signatures. You can gather the signatures anywhere, from a Walmart parking lot in Colorado Springs to the 16th Street Mall in Denver to the Pearl Street Mall in Boulder.

Amendment 71 would require petition gatherers to collect valid signatures from 2 percent of registered voters in each of Colorado’s 35 state Senate districts. That means one contrarian district could, in theory, keep an amendment initiative off the ballot if voters there refused to sign petitions.

Raise the Bar would also require constitutional measures to garner a supermajority of 55 percent of voter approval to pass rather than the simple majority currently required. Thus the name, Raise the Bar. That supermajority would also apply to constitutional amendments referred by lawmakers. Such legislative amendments to the constitution, which are usually crafted to solve urgent problems, already must go through a legislative hearing process, analysis by both legislative staff and voters, and require a two-thirds majority in both chambers to make the ballot.

Supporters say the higher bar would ensure that all Coloradans have a say in what makes the ballot, including those in rural areas, rather than just voters in urban centers or along the Front Range.

Critics say gathering enough signatures from all 35 state Senate districts would be prohibitively difficult, requiring dozens of different ground operations and multiple campaign teams. Campaigns would have to hire more professional signature gatherers — or train more volunteers — to circulate petitions statewide.

Tricia Olson, an organizer for the Yes for Health and Safety over Fracking campaign, says Raise the Bar would do nothing less than “eliminate or destroy the initiative process.”

Why does that matter in Colorado?

Colorado is one of a minority of states that gives voters the power to change their state’s constitution. State laws, which have the same signature requirements and thresholds that constitutional amendments do, can be changed or repealed by the legislature with a simple majority. But changes to constitutional amendments require lawmakers to write additional amendments, pass them with a two-thirds majority in each chamber, and then submit them to voter approval on the ballot. Citizens, too, can initiate changes to constitutional amendments.

Roughly half the states in the nation have a referendum or initiative process, but Colorado’s signature and pass thresholds are relatively lower than the others. The time allotted for gathering signatures here, which is set by statute at six months, is, however, among the nation’s shortest. The Raise the Bar campaign argues that Colorado’s Constitution is “the easiest” in the country to change. That’s debatable, but, suffice it to say, it is easier here to pass an amendment than in many other states. Whether that’s desirable depends upon whom you ask.

Coloradans who like our ballot initiative process champion it as an opportunity for direct democracy. Since it was added to the constitution in 1910, the process has given citizens here the power to enact change without relying on the governor or the legislature. Direct democracy allows voters to address controversial issues bureaucrats and politicians may not be willing to touch.

The reason people run measures to change the constitution in Colorado in the first place is because the legislature will not act, said Elena Nuñez, who is fighting the measure on behalf of Colorado Common Cause.

Need some examples? Think legalized marijuana in 2013. Would lawmakers have allowed that? Probably not. Or, more recently, consider the measure on our ballot this year that asks voters whether we want to allow terminally ill patients to obtain a prescription for drugs that would allow them to end their lives. Groups had to take that to the ballot because they couldn’t get such a law passed at the Capitol, where several lawmakers said they privately supported the idea, but didn’t want to buck the Catholic Church and other Christians who oppose it.

Those who oppose the ease with which citizens can alter Colorado’s Constitution say it has made the state’s governing document a free-for-all, a dumping ground for the latest “it” policy. One could argue that this is why Colorado was the first state to legalize marijuana for recreational use: In 2013, all it took to amend our constitution was a simple majority and signatures gathered in the state’s concentrated urban areas.

“We think our Constitution is our founding governing document,” says Joe Megyesy, who helped lead the effort to get Amendment 71 on the ballot and also did conservative outreach for the 2012 marijuana initiative. “It should serve as being the playbook to governing, and not the place for special interests to run policy experiments.”

Colorado’s relatively easy ballot initiative process has also made the state prone to repeated, arcane budget battles. Thanks to a voter-initiated constitutional amendment in 1992 called the Taxpayer Bill of Rights – or TABOR – lawmakers must now ask voters, through ballot measures, to approve all new tax increases. TABOR limits Colorado’s tax revenues at all levels of government, tying the state’s hands when it comes to generating new revenue.

Another infamous initiative came in the early 1990s when Colorado voters approved a ballot measure called Amendment 2. That amendment denied state and municipal governments the right to ban discrimination on the basis of someone’s sexual orientation. The vote sparked a culture war here that drew national headlines and a reputation that Colorado was a bastion of homophobia. A few years later, the U.S. Supreme Court ruled it was a violation of the U.S. Constitution.*

Recreational cannabis, TABOR and the overturned Amendment 2 are perhaps the best known of the many amendments Colorado voters have written into the state’s constitution, and the three illustrate the unpredictable nature of ballot initiatives: They sometimes get slapped down by federal courts or result in unintended consequences that the legislature later must try to fix.

Is it really that easy – now – to get an amendment on the ballot here?

“Easy” is a relative term.

Most initiative efforts in Colorado actually fail to garner enough valid signatures to make the ballot, and the ones that do generally have a lot of money and resources to make it happen. Voters failed to approve any ballot measures amending the constitution in 2014. Fewer than one-third of the proposed amendments that actually made Colorado’s ballot have been passed by voters in the last 30 years. The Colorado Constitution has been amended by citizen-initiated ballot measures 48 times since the initiative process was approved in 1910.

The Colorado Independent recently looked into how two anti-fracking initiatives failed to make the ballot in a state with a pretty sizable anti-fracking presence. The short answer: A late start, a deep-pocketed opposition campaign (funded by the oil and gas industry), a lack of funding and not enough organization kept Yes for Health and Safety over Fracking from collecting the valid signatures it needed. (It’s worth noting that, though the group considered delaying its anti-fracking campaign another year, it pushed the initiatives this year out of fear of – you guessed it – higher standards to qualify for the ballot if Raise the Bar passes.)

Another failed ballot initiative effort this year would have essentially been a TABOR time-out. It would have asked voters if they wanted to grant the state government permission, for 10 years, to retain tax money that flowed over TABOR-mandated revenue caps. (TABOR currently requires any revenue generated over projected limits to go back to individual taxpayers in the form of refunds.) Proponents of that measure canceled their campaign because they didn’t think they could pull it across the finish line this year.

Considering the time, money and labor required to pass a ballot initiative, it’s perhaps no wonder that most campaigns choose to push for constitutional amendments rather than statutes. For the same amount of campaign work, amendments have far more staying power.

So, if it’s not that easy, why make it harder?

One of Raise the Bar’s primary arguments is that the new rules would ensure rural and less-populated parts of Colorado will have a say in the ballot initiative process. Rather than collecting all their signatures from the Denver metro area, initiative campaigns would have to reflect statewide support.

Megyesy, the consultant who helped qualify Amendment 71 for the ballot this year, says these higher hurdles are a way to give more Coloradans a say in how the state is governed. Issues that affect rural Colorado— think livestock, water, natural resources— can wind up on the ballot because enough city slickers signed a petition. That happened in 1998, when billionaire Phil Anschutz funded an initiative to put in stricter environmental controls on hog farm waste. Voters gave it the green light and in the same election voted strongly against an industry-sponsored initiative.

Supporters also say Amendment 71 would help guard against out-of-state special interests hijacking the state constitution, which Colorado Springs Mayor John Suthers, the state’s former Republican attorney general and U.S. attorney, says happened in 2014. That year a Rhode Island casino operator wanted the right to run gambling at horse tracks in three Colorado counties and ran a ballot measure that ended up failing by a wide margin.

Another argument is that if voters want a direct say in how Colorado’s laws are written, they should go the route of amending state laws through the ballot initiative process, not by changing the constitution. That way, lawmakers can tweak them over time if the need arises.

Democratic Sen. Pat Steadman of Denver doesn’t like the practice of altering the state’s founding document every two years. He thinks doing so should be reserved for fundamental concerns like individual rights or the basic structure of government. Not issues like legalizing marijuana or changing how campaign finance is regulated.

“These are policy issues that should be able to be changed over time, that the legislature should have an ability to weigh in [on] and to update the laws as needed,” he has said. “When things go into the constitution, the legislature can’t do that.”

Raise the Bar won’t make the statute initiative process any more appealing— campaigns will still risk having their measures repealed or changed by state lawmakers. But by making it harder to amend the constitution, it follows that groups will be forced to pursue the statute route.

Lots of Colorado power players from across the political spectrum support this, don’t they?

Indeed. In their promotional material, the measure’s supporters have written a pretty memorable line: Every living governor of Colorado — Democrat and Republican — supports raising the bar.

So do big city municipal leaders like former Denver Mayor Wellington Webb. Colorado Springs’ Mayor Suthers has made videos in support of the effort. So has his mayoral opponent Mary Lou Makepeace, who also once served as mayor of the Springs. Current and former lawmakers in leadership positions back it, and “more than two dozen counties have passed resolutions endorsing Raise the Bar,” says the vote-yes campaign.

Dozens of business and industry groups also back the measure, including chambers of commerce, business strategy group Colorado Concern, the state bar association, and big-league business groups like Club 20— plus dairy farmers, egg producers, realtors, plumbers, pork producers, pipe welders and wheat growers throughout the state.

Many among this group wield influence in the halls of power through campaign contributions and adept lobbying. The political system operates by a logic that cannot be applied to a strong, unpredictable, demanding electorate with the ability to bypass politicians and shape Colorado in fundamental ways. TABOR drastically changed Colorado’s finances. The legalization of marijuana has changed the state economically and culturally.

Supporters of Raise the Bar tout their broad support among diverse politicians and groups, saying that “protecting our state’s constitution from gamesmanship is a cause that unites us.”

And it should be noted: Raise the Bar grew out of an effort from a group called Building a Better Colorado, a bi-partisan alliance organized by former University of Denver Chancellor Dan Ritchie and other business and political leaders who toured the state to find out what voters thought necessary to better Colorado’s future.

Out of that effort emerged two ballot measures: One asks voters whether Colorado should have a presidential primary. The other is Raise the Bar.

Who is the opposition then, and what are they saying?

Just as there is a diverse range of supporters, a strange-bedfellows constellation of people and groups oppose or have been critical of Raise the Bar. They include New Era Colorado, Conservation Colorado, the Bell Policy Center, The Colorado Firearms Association, The TABOR Committee, the Colorado Union of Taxpayers, and Greenpeace.

The Colorado Libertarian Party is against it, and, while the state Green Party hasn’t officially held an internal vote about the measure, co-chair Andrea Merida says she expects the party will come out in opposition.

Some critics point to the number of politicians and groups backing the measure as evidence that it’s a way to strip power from the people.

“If you’re a politician, of course you hate the initiative process,” says Jon Caldara, president of the Libertarian Independence Institute think tank in Denver. “It’s what brought transparency, it’s what brought term limits, it’s what brought TABOR, it’s what brought ethics laws,” he adds, listing other past ballot measures voters have supported through constitutional amendments.

“Of course you hate it. You must hate it,” he says. “That’s why these things are in the constitution, so [politicians] can’t change it.”

A major issue opponents have with Amendment 71 is that the new rules would make future changes to Colorado’s constitution virtually impossible for all but the wealthiest campaigns. Grassroots groups say they have a hard enough time fulfilling signature requirements when they can circulate petitions up and down the populated streets of Front Range cities. Collecting signatures from each of Colorado’s 35 Senate districts? No way, they say.

Such a bar would be “unreachable,” Caldara says.

He frames this year’s ballot battle as a David and Goliath story pitting politicians, insiders and industry groups against citizens and citizen groups. He calls the push for the measure a classic power grab.

Nuñez of Common Cause agrees— and Common Cause and Caldara’s group do not agree on much.

“I think, broadly, Amendment 71 is a blatant attempt by political elites and wealthy special interests to block the people from an important tool of government, and that’s why you see such diverse interests coming together,” she says.

There’s also an idea countering the argument that Amendment 71 would give more of Colorado a voice. If the measure passes, it might inadvertently give veto power to a small minority of Colorado.

“One thing no one is talking about,” says Tim Hoover, of the Denver-based economic think tank Colorado Fiscal Institute, is the “tyranny of the minority.” If Raise the Bar passes and a person or group wants to stop a future ballot measure to amend the constitution, they would no longer have to run an expensive statewide campaign such as this year’s “Decline to Sign” effort, a pricey ad campaign that encouraged voters not to sign anti-fracking initiatives. Instead, he says, all they would have to do is lock down one large neighborhood in one geographically small but population-dense Senate district.

“This means that one or two neighborhoods in the Denver area could keep the entire rest of the state from considering an issue that the overwhelming vast majority of Coloradans want,” he says.

Who’s paying for Raise the Bar? And how much?

Oil and gas industry groups have been the largest contributors by far. Protecting Colorado’s Environment, Economy, and Energy— a group funded by oil and gas corporations Anadarko and Noble Energy— has donated $1 million of the $2.7 million Raise the Bar has collected so far. Vital for Colorado, another oil and gas industry group, has given $600,000. Colorado Concern, a business coalition, kicked in $185,500.

All told, the oil and gas industry is behind 63 percent of all donations to Raise the Bar, making it the largest single contributing industry. But funding comes from other industries: The Colorado Gaming Association gave $150,000, Colorado Dairy Farmers gave $100,000, and the Colorado Association of Realtors donated $50,000.

The initiative has attracted individual donors, too. Ritchie, the former chancellor of the University of Denver and the current chairman of the board of the Denver Center for the Performing Arts, gave $25,000. Entrepreneur and philanthropist Tim Gill, founder of The Gill Foundation, gave $15,000.

So far, Raise the Bar has spent about $2.2 million, $900,000 of which went to paid signature gatherers and about the same to advertising. Much of the rest went to legal services and consulting. It cost close to $1 million just to get the measure on the ballot, and that’s without a raised bar.

As of Sept. 14, the most recent campaign finance disclosure deadline, Raise the Bar had about $525,000 on hand.

Is this really, then, about protecting the oil and gas industry in Colorado?

The passage of Amendment 71 would make it nearly impossible to put anti-fracking measures such as this year’s proposed Initiatives 75 and 78, on future ballots. The initiatives sought to give Coloradans the power to limit oil and gas development in their communities through mandatory setbacks and local control.

But, Raise the Bar supporters say the initiative is about more than the oil and gas industry.

“The battle to make it harder to amend the constitution than change a law predates the fracking wars,” says former Colorado GOP Sen. Greg Brophy of Wray, who is working on behalf of the Raise the Bar effort.

“Of course [the oil and gas] industry is concerned, along with a large majority of other industries and business owners across all parts of the state,” adds Doug Flanders, director of policy and external affairs for the Colorado Oil and Gas Association. “Amendment 71 will truly show the voice of the people. All parts of Colorado will need to show support, not just from a few select locations.”

Luis Toro, the director of Colorado Ethics Watch, a nonprofit group that tracks money in politics and does not have a position on Amendment 71, says the variety of donors to Raise the Bar shows that it’s about more than oil and gas.

“It is true, though, oil and gas industry participants wouldn’t spend so much money on this initiative if they didn’t think it was important to their bottom line,” he says.

What are newspaper editorial boards saying?

The Denver Post editorial board came out against the proposal.

“Paying for a signature gathering effort in 35 districts across the state, and defending signature challenges in all of those districts, would easily render the cost of presenting a ballot unaffordable to all but the wealthiest of campaigns,” the editorial read. “(And yes, citizens in many states aren’t able to amend their constitutions. But it’s a valuable right in Colorado that helps keep the elite in check.)”

Out on the Western Slope, The Grand Junction Daily Sentinel came out in favor, sticking the geographical argument, and even taking a few shots at The Denver Post.

“As a practical matter, only measures with genuine grassroots support will have a chance to get on the ballot if Amendment 71 passes,” the paper opined. “Proponents of a measure will have to come to Mesa County, hold town hall meetings and make a convincing case for the change, and then do the same across the state.”

Furthermore, The Daily Sentinel wrote, “The prosperity gap between urban and rural Colorado has perhaps never been wider. The Post’s cynical position opposing Amendment 71 underscores one of the reasons for that chasm.”

Lastly, of course you want to know: Did Raise the Bar hold themselves to their own standard?

So were its supporters able to get 2 percent of registered voters to sign petitions in each state Senate district to qualify their measure for the ballot? Well, they say they tried, but won’t say for certain if they were successful.

Brophy says the campaign collected 75,000 of its 183,000 total signatures from outside the Denver metro area. He says signatures came in from every district, and that the campaign did break 2 percent in seven of Colorado’s most rural districts.

But those counts were done during the signature gathering process and haven’t been verified, though the signatures are publicly available. When The Colorado Independent asked Brophy about whether Raise the Bar has plans to conduct an official count, he said, “You can count them yourself.”

*A previous version of this story stated Amendment 2 had been “repealed” shortly after it passed. The Amendment passed in 1992 and was struck down by the U.S. Supreme Court in 1996, but it still appears in Colorado’s constitution with a footnote stating it is unenforceable.  

Photo credit: USMC Archives, Creative Commons, Flickr