The need to raise the bar

This essay tries to justify Amendment 71.


by Jim Griesemer


Imagine  creating an attractive meal and then having forty strangers (i.e. 40 voters), each with  widely varying palates, randomly dump their favorite  ingredients — from vinegar to spices, from ice cream to offal (that means intestines or guts), and  much more — into your pot. The bad news is the resulting  concoction might well be a mess; the really bad news is that it would become  your permanent cuisine. (He says we must eat the constitution, though it is garbage, but must also vote to "protect" that garbage and never change it, except to pass his change, Amendment 71. Hunh?)

Such  a culinary mishmash is not unlike the Colorado Constitution. From conflicting provisions and unintended consequences (think: TABOR vs. Amendment 23) to detailed regulations that belong in statute (think:  wildlife trapping rules), Colorado’s constitution is a disjointed stew of  disconnected ideas. (So a constitution can have only one idea and no details?)

What’s more, it is a governing goulash that is nearly impossible to change. (Isn't he intending to change it?)

One  reason for Colorado’s constitutional jumble is the ease with which the document can be amended. (WAIT!  He just said the constitution is "nearly impossible to change." His next sentence says "the ease with which the document can be amended." Those two contradictory claims are both false!)

The number of signatures needed for  citizen-initiated ballot measures in Colorado is among the lowest of any  state (no petition can change any law--it only requests an election) and only a simple majority is required to adopt a constitutional  amendment (the same standard as other states). These low-threshold requirements, together with our medium-size population and purple-state ideological balance, make Colorado an ideal  place for interest groups, including out-of-state special interests, to try  out their causes. (Why would a group from Vermont come here to change Colorado law?) Because it is just as easy in Colorado to amend the  constitution as it is to create an initiated statutory law, special  interests often prefer constitutional amendments, which are virtually  impossible to change once adopted, to reflect their ideas on current topics. (So is it "easy" to change our constitution or "virtually impossible?" He can't have it both ways.)

The  problem is that constitutions are not about current topics, they are about  the underlying structure and processes of government and the fundamental  rights of citizens. Those basic governing and social arrangements change only very slowly, which is why constitutions are supposed to be difficult to  amend. Statutory laws, which can also be initiated by citizens, are intended  to respond to current public policy issues. It is in law, not in the constitution, where the vast majority of special-interest proposals  belong. (But those laws can be repealed by politicians right after voters approve them.)There  is currently a proposal working its way toward the November ballot that  would take an important first step by introducing a more deliberate process  for constitutional amendments. As with all proposed constitutional reforms,  this measure — Initiative 71 — must itself be approved  by voters as a constitutional amendment.

Initiative  71 has just two major provisions which, taken together, would make it,  appropriately, somewhat more difficult to change the constitution. While the  amendment would not increase the number of signatures needed to put a  proposal on the ballot, it would require that signatures be obtained from at  least 2 percent of the registered electors who reside in each of Colorado’s 35 state Senate districts. (This is a GEOGRAPHIC QUOTA.) Such a requirement has long been discussed as a matter of fairness to Colorado citizens who live outside the  Denver metro area where signatures can easily be obtained at a Front Range shopping mall without ever consulting Colorado residents living on the  Eastern Plains or the West Slope. (They are consulted equally in the election, when "one person, one vote" applies.)

The  second provision would increase the number of votes required to pass a new  constitutional amendment from a simple majority to 55 percent or more of the  votes cast. (This REPEALS MAJORITY RULE.) Existing amendments could be repealed with a simple majority  vote, the same standard by which they were originally adopted. (He wants a different standard so he can repeal existing rights and limits he dislikes, but automatically "raise the bar" for anyone else.)It is worth  noting that the proposed provisions of Initiative 71 would not apply to  citizen statutory initiatives. (Why? Because legislators can repeal them at any time after voters approve them.)

These  straightforward proposals — seeing that all Coloradans are part of the process by requiring signatures from around the state and a 55 percent or greater vote to pass new constitutional amendments — are  critical steps in stemming the flow Colorado’s patchwork of constitutional  amendments. (If we have too many choices, why didn't they limit the number of issues that legislators can put on the ballot by only 68 votes?)

These requirements, modest as they are, will not inhibit genuine  citizen-based movements that deal with fundamental issues and have statewide  support which are two defining elements of proposals that might rise to the  level of constitutional relevance. (Note that Amendment 71 failed its own geographic quota, a sign of its hypocrisy, and won't insist on 55% voter approval for it to take effect--more hypocrisy.)

The  greatest opposition to Initiative 71 is likely to come from special interests on both sides of the political spectrum who see constitutional amendments as the way to enshrine their particular perspectives in  perpetuity. (Why does he ignore the millions in "special interest" money donated to issue 71?)As their ideas ossify in constitutional mortar, unchangeable  even when flaws are discovered or times change, (there he goes again, saying the constitution is unchangeable even as he advocates changing it) special interests maintain  their bragging rights while regular citizens and elected legislators are  required to struggle with Colorado’s unpalatable constitutional stew. (As a "regular citizen," how much have you struggled with our constitution?) It’s  time to rethink the recipe for constitutional change in Colorado. (His new "recipe" is to make constitutional changes AFTER 71 impossible to place on the ballot or to pass.)

Jim  Griesemer is a professor and dean emeritus at the University of Denver,  where he directs DU’s Strategic Issues Program.