By Phil Doe
It is a truth universal that when a politician establishes a task force to examine an explosive public issue, often an issue of his own making, said politician will term the task force’s recommendations remarkable in both their wisdom and farsightedness.
This truth was borne out on February 24th when Colorado Governor Hickenlooper’s Blue Ribbon Task Force on Fracking issued its carefully vetted and resultantly sparse recommendations. He personally selected the 21 members, so of course it was fitting he label them Blue Ribbon and congratulate them on a job well done. The majority were oil executive cronies or political yesteryears friendly to him or the industry.
Citizens, unpersuaded by all the high-toned talk, were critical of how little was accomplished by the Blue Ribbon Boys in months of plodding, mind-numbing meetings conducted at public expense, but this criticism is obviously not shared by He-Who-Counts. The task force did exactly what it was created to do, it provided cover for wealthy U.S. Representative Jared Polis to withdraw from state ballot consideration two initiatives he had bank-rolled. These citizen initiated constitutional amendments, or initiatives as they’re called, would have helped restore to local governments the constitutionally guaranteed right to decide what’s best for the health and wellbeing of their communities. Yes, that’s right, they would have restored the rights of home rule already guaranteed by the state’s constitution. Government works in funny ways these days, often eating its own tail in blind circles of lawlessness.
The Blue Ribbon Boys didn’t recommend restoring the people’s rights. The industry kept those. They’d won them fair and square by buying the legislature. The Colorado Oil and Gas Conservation Act preempted the citizenry’s right of self-determination because unfettered oil development was judged to be supremely important to the economy; thus the rights of self-determination properly belonged to the industry and the COGCC, the commission established to monitor and encourage the industry.
Still local communities did get some new “process” rights, they can talk to the industry earlier about impending invasions. This, the governor said, is what Coloradoans do best, cooperate, for…”working together is how we always find the right solutions for Colorado.”
The Blue Ribbon bunch also recommended an increase in field inspectors. The legislature agreed and increased the Colorado Oil and Gas Commission’s budget by about 20 percent to accommodate the recommendation. This maneuver also increases the costs to the public, for about half of the COGCC’s $10 million budget comes out of the general fund, the other half comes from the public’s oil and gas severance tax revenues. That this increase will actually better protect the public health is dubious, but it will increase the Governor’s case for the continued hegemony of the COGCC over the rights of the people on all matters oil and gas.
Because of dangerous smog pollution along Colorado’s northern front range and the clear adverse impacts on public health, all cars in this area must be inspected for smog control biennially. Oil and gas operations produce more than half of the smog in this same area; nevertheless, in 2011, almost 75 percent of the state’s 46,000 wells went uninspected. It is doubtful a few more inspectors will greatly change that equation, since the number of active wells is now over 55,000, and an almost equal number of inactive and abandoned wells are out there, uninspected, but based on scientific studies, expected to be leaking–sometimes to high heaven. Plus, enforcement in Colorado is on an honor system. This is by design. The governor thinks enforcement is best accomplished through collegiality. He hasn’t suggested the concept be adopted with regard to the poultry industry, however.
Collegiality may help explain why in 2010-2011 Noble Energy, then the largest producer in the state, received the COGCC’s Outstanding Operator Award for environmental protection even though Noble was responsible for fully one-quarter of all spills (126 of 516) the industry reported to the state, most of which polluted ground or surface water. The state assessed 5 fines in 2010-2011, mostly for past-year infractions.
But the real news out of the legislature was not the piddling legislation taken up from the Blue Ribbon Boys’ recommendations, but how tirelessly the power structure in both parties worked legislatively to deny and diminish the people’s constitutional rights to legislate by initiative. And make no mistake, both parties, the governor, and the corporate interests they serve know that it is direct democracy, or citizen legislation via the initiative, that is a threat to controlling outcomes favorable to the moneyed interests. Given the present political climate and the widespread public unrest over fracking here, there, and everywhere in Colorado, oil is the prize most needing protection from public scrutiny and direct democratic action.
The initiative was added to Colorado’s Constitution in 1910 through the efforts of Governor John Shafroth—a truly endangered species by today’s political standards, he’d started his political career as a Republican, but eventually became a populist Democrat. He actually resigned his seat as a U.S. Congressman because he thought his election had been rigged by Denver’s machine Democrats. Later, in a successful run for governor, Shafroth made a campaign promise to bring the party political machines and corporate influence in state government to heel. Calling a special session before the elections of 1910, he forced a resistant legislature, under the full light of a month-long public debate, to place two simple questions on the ballot as constitutional questions: Should the people have the right to author legislation and seek public validation via the ballot box? And should the people have the right to repeal any legislation passed by the legislature via the ballot box?
These two questions, termed the people’s right to direct democracy, or the right of initiative and referendum, were approved by over 75 percent of the voters. The right of the people to author legislation directly by initiative, is termed their “first right” in the constitution. Their right to repeal legislation by a referendum is termed their “second right.” Some commentators have termed the initiative and referendum, I and R, the fourth branch of government, a safeguard and essential control on an unresponsive or corrupt power structure.
Almost from the morning after, both political parties have made attempts to limit I and R use. The referendum has become a nullity as the legislature has used what was intended to be a constitutional exception to the public’s use of the referendum and made it the rule. The constitutional exception reads: “The second power hereby reserved is the referendum, and it may be ordered, except as to laws necessary for the immediate preservation of the public peace, health. or safety …” Article V, Section 1.3.
The legislature cynically, some might argue lawlessly, has taken this limit or exception and made it the rule so that a “safety clause” is attached to most legislation and for many years was attached to all legislation. It reads:
“The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.”
This bit of mockery by the legislature helps explain why the last citizen referendum to appear on a statewide ballot was in 1932. In that case, a disbelieving public repealed special-interest farm legislation that taxed margarine over butter.
Over the years thousands upon thousands of pieces of legislation have contained the safety clause. Here are but a few examples of legislation passed under the rubric of saving the state from crisis or worse—almost certain wanton rioting in the streets. They run the gamut from state weed coordinator, to bingo, to pet care, to recognizing and encouraging breastfeeding, to cemetery district taxes, to male mammography.
So as to reestablish the constitutional right of referendum, an initiative made it on to the ballot in 1996 limiting the legislatures use of the safety clause to true emergency situations, like flood disaster legislation. The authors adopted the trope of calling the wild, over use of the safety clause “60,000 lies.” One feckless defender of the legislature said that was a lie, there were only 40,000 pieces of legislation with the safety clause. Sadly, for other reasons, it failed at the ballot box.
The initiative, too, has been under constant attack. In fact the legislature’s unfriendliness toward the people’s right to direct democracy can best be understood by knowing that SCOTUS twice has struck down legislative attempts, in 1986 and 1999, to limit the right to initiative. Only in Colorado has the U.S. Supreme Court had to scold the legislature in this manner. Twenty-four states have the right of initiative in their constitution, most of them western states. But oblivious to or ignorant of their own wretched history on the people’s right to legislate and the strict limits on legislative interference set forth in the constitution, the legislators were right back at in 2015. Two measures were introduced.
The first would have required a constitutional amendment, meaning a two-thirds favorable vote of both houses even to get it on the ballot as a referred measure. It would have made the initiative a two-year process. In the first year the initiative sponsors still would have been required to gather 89,000 valid signatures from registered voters. (The signature requirement is formulaic, 5 percent of the votes for Secretary of State in the last general election.) Presumably using the gestation period of a whale as guide, the public would be given another year to mull the initiative. During that time, the legislature’s professional staff would have had to hold public hearings on the initiative in each of the state’s 7 congressional districts. The possibilities for mayhem seem limitless.
The hearing for this bill, Senate Concurrent Resolution 15-002, was chaired by Ray Scott, a Republican legislator from Grand Junction, a city in the western part of the state. He had been an oil field worker and owned a furnace store. Previously, he had sponsored unsuccessful legislation giving each new oil and gas well a 2-year grace period before being subject to the state’s severance tax. Since fracked wells in the shale formations of Colorado have such a steep decline curve, the effect of this legislation might well have been that very few wells ever paid a severance tax, for in two years many would have been deemed “stripper” wells, exempt from the severance tax because of their limited production. Still, each stripper well, even with today’s low energy prices, could produce over $360,000 annually in revenues. The big boys operate thousands of these wells. You think collegiality and owning the legislature doesn’t work?
The chief backer and probable sponsor of SCR 15-002 was an organization dubbing itself Colorado Concern, a corporatist lobbying organization. Its executive director is Tamra Ward, a former staffer for two Republican senators from Wyoming. She promotes herself as having been heavily involved since 2005 in lobbying against citizen sponsored initiatives that might not be in the interests of big business, preening that she has raised almost $19 million toward that effort. The chairman of the board, Blair Richardson, is a former Wall Streeter and investment banker. Membership is by invitation only and is restricted to corporate CEOs or, in the case of multi-nationals, the senior corporate officer in the state. Eight university presidents are members, including former oilman and climate-change denying CU president, Bruce Benson. Bush cousin and president of the public subsidy laden Denver Broncos, Joe Ellis, is also one of the lucky few to be tapped for membership in a club of the wealthy and well connected working to keep Colorado working for them.
By some miscalculation, Scott cut short testimony on SCR 15-002 and called for an early vote, thinking the three Republicans on the 5-man committee would carry the day for Colorado Concern and fellow travelers. But one Republican voted with the Dems and the measure failed.
HB 15-1057 would prove to be a more successful attack on the rights of the people. It had sponsorship in both houses and from both parties and the governor. Hickenlooper had actually touted the need for this legislation in his State of the State address to the legislature at the start of the 2015 session.
Leading the charge in the House was Democrat Lois Court. Too dim to appreciate irony, she proclaims herself a civics teacher by education and inclination. She is also one of the oil industry’s most willing mouthpieces. Last year she sponsored an unsuccessful bill that would have given the oil and gas industry the right of eminent domain in acquiring oil and gas pipeline right-of-way. She had also sponsored truly unfriendly legislation that would have doubled the number of signatures required to get a constitutional amendment on the ballot. This measure would have required a representative number of signatures from each congressional district as well. This added qualification is akin to insisting that any state office holder, say governor, has to carry every congressional district as a condition of his election, the statewide popular vote be damned.
HB 15-1057 gave her better cover in her designs against the people’s right to direct democracy. HB 15-1057 asked that any initiative have a two sentence cover statement saying what the economic impact of the initiative would be. The legislature’s professional staff would be responsible for preparing this statement.
The bill was first heard in the House, where Democrats are the majority. The hearing room was packed in opposition, with many opposed reminding the committee that the state’s constitution disallows interference with the public’s first right to legislate, or as it’s been interpreted by the Colorado Supreme Court:
“By the express provisions of the Colorado Constitution the people have reserved for themselves the right to legislate. Colo. Const. Art. V, Sec. 1. This right is of the first order; it is not a grant to the people but a reservation by them for themselves.”
Too, the constitutional language would seem pretty clear, even to an 8th grade civics class, but it did not sway Rep. Court or the committee. It says in part that, “Neither the general assembly nor its committees or agencies shall have any power to require the amendment, modification, or other alteration of the text of…” an initiative. Article V, section 1.5.
After a morning devoted to testimony the committee chair tabled the measure, perhaps fearing some unruliness from the restive crowd. It was later to be passed out of committee without public comment or participation.
Still its passage might never have occurred had it not been for the maladroitness of Democratic committee member Max Tyler, who cut ranks with the Democratic majority in the committee and joined the Republican minority in support. He was later to vote against it on the House floor. But the damage had been done, and the Governor’s strong lobbying for the bill, along with Colorado Concern’s corporate juggernaut of almost 40 corporate backers held the day. The androgynously named House speaker, Dickey Lee Hullinghorst, a Boulder Democrat, had made plaintive noises early on in the session that something should be done about the home rule issue and legislative overreach, but in the end, she herded enough Democratic house members into Hickenlooper’s camp for it to pass. In so doing, she split with her own constituents who have enacted both a city and county moratorium against fracking.
The Republican controlled senate should have been an easy capture, but it was not. Oh, it sailed through committee, all right, the same committee where SCR 15-002 had met its unexpected death. But this committee’s vice chair is Jerry Sonnenberg. He with Ray Scott had voted for SCR 15-002, but more importantly, in this instance, Sonnenberg was one of the co-sponsors and staunch supporters of HB 15-1057.
Twice he has tried to get legislation passed that would deprive cities that ban fracking from receiving severance tax dividends. He even went so far as to try to get it on the ballot as an initiative after it was defeated in committee last year. With unlikely prospects, it was nevertheless some of the flotsam offered up as tradeoff in Polis’ cowardly retreat on the home rule initiatives.
Like many at the Dome, he smiles a lot. He has reason to. As a farmer of surplus crops, he has received at least $626,000 in public handouts. Perhaps the highpoint of his statesmanship this year was his vocal opposition to a bill that would have allowed urban homeowners to capture up to two barrels of rainwater for garden maintenance. He argued that the rainwater already belonged to downstream farmers like himself. He compared it to stealing flowers: “You can’t go over and pick your neighbors’ flowers just because you’re only picking a few. They’re not your flowers.” A friend mused that next year, emboldened by his past success, Sonnenberg would probably introduce a bill that said the roof over your home only belonged to you when it wasn’t raining, the rest of the time it belonged to Sonnnenberg and friends as a necessary component of agribusiness’ irrigation collection system. Colorado’s constitution says all waters of the state belong to the people, but as I’ve demonstrated previously, the constitution is largely useless when money and power beckon.
Strangely, when HB 15-1057 came up for a floor vote in the Senate on the last day of this year’s session, it was defeated by one vote. The Democrats under the leadership of Morgan Carroll who is term limited and may be looking to run for a seat in the U.S. House held strong against the governor’s lobbying, with only a few greasy-pole-climbing careerist Democrats voting with Hick and the corporations. A few independent Republicans voting against their own leadership made up an unlikely majority. Sonnenberg was able to persuade a senator, new to the game, that the changes the legislation represented were minimal, and it passed narrowly on a revote accommodated through procedural gamesmanship.
On the surface HB 15-1057 might seem insignificant. But the level of lobbying gives the lie to that conclusion, for it was one of the most heavily lobbied Bills in this legislative session. The Secretary of State’s registry shows 829 contacts by paid lobbyists were made on the bill. Generally, irrigated agriculture, mining, oil and gas, banking, real estate, and ranching interests supported the bill. Interestingly, AARP and the League of Women Voters found themselves comfortable in this unlikely company. Labor, grassroots, Latinos, conservative taxpayer groups, good government organizations like Common Cause and the libertarian Independence Institute, and most national enviros opposed it. It was signed into law by a jubilant Hickenlooper on May 18. Tamra Ward called it landmark legislation.
Next year, real reform?
The people’s constitutional right to direct democracy could be easily renewed or reinvigorated by a legislature and a governor who understood how essential it is as a control on corruption and concentrated wealth’s urge to completely control government as a business subsidiary. Unfortunately, Hickenlooper is no Shafroth, and the legislature in Colorado has been infected with the Texas Statehouse disease. Molly Ivans used to say that in Texas the ‘bidness of guvment is bidness.” It’s moved north. Had it not the following corrective measures could be easily implemented legislatively. But given the facts as they are, an initiative, as hard as it would be under the present circumstances, might be the only workable corrective action available.
Under the subject title of “reestablishing the people’s constitutional right to direct democracy” it should address the following:
Electronic petition gathering: In 1912, according the Secretary of State’s records, it took around 11,000 signatures to get an issue on the ballot. In 2016 it will take a minimum of 89,000 signatures, over eight times the requirement in 1912. Yet, 104 years later we are still required to gather signatures by hand, door to door, parking lot by parking lot. (Remember, the signature requirement is formulaic, 5 percent of the votes cast for Secretary of State in the last general election. )
Though grudgingly, many measures have been implemented to increase voter turnout and facilitate voter registration, including online voter registration. Online petition signing needs to become a part of the initiative process. As it now stands money has become the measure of an initiative’s chances of getting on the ballot. Hickenlooper, perhaps unwittingly, supports this assertion. Just days ago, speaking of the potential for fracking initiatives on the 2016 ballot, he said “There will be proposals, but I don’t think there will be something that will be funded to any significant extent, and therefore I don’t expect something to get on the ballot.” Online petition signing might help neutralize money’s control of government.
Opponents of direct democracy will trot out the usual scare tactics. The one heard most often is that the initiative process is too easy already. This is simply the lie of the proudly and righteously uninformed, for as the Independence Institute’s Dennis Polhill has shown in his extremely useful analysis, Protecting the People’s Voice, of the 111 amendments to the constitution in the 93 years between 1912 to 2005 almost 65 percent were legislatively driven, only 35 percent citizen initiated. This hardly constitutes a loose bowel movement. In fact, it comes to about one initiative every 2 years. Moreover the petition to get the initiative on the ballot is only the start of what should be a public discussion of the proposal, and in no way ensures its success come election time. More of these discussions are needed in a democracy.
And remember 1912, the first year the initiative was available to the people, was a year like no other in the history of I and R, for “22 initiatives and 6 popular referendums were on the ballot. Eight of the initiatives passed and challenges to legislatively approved laws were sustained in five of the six cases.” Clearly in 1912 the public’s frustration with government was wide ranging. Among the laws passed by direct vote were the 8 hour work day for miners, for remember the awful tragedy of The Starkville Mine where 57 miners died was fresh in voter memories; pensions were established for widows with children and orphans; juvenile courts were established; and perhaps the major issue in today’s political debate, the right of Home Rule was established. If the legislature had been alert to the will of the people, most of these should not have gone to a direct vote. That they did underscores the fundamental need for direct democracy and the instrument it can be for good government. It fits with H.L. Mencken’s observation that the only cure for democracy is more democracy.
I think it also useful to compare numerically the legislature’s run-away-train of bills with the people’s use of the initiative. Last session 692 bills were introduced. Only 43 percent got out of committee. This suggests either a lot of special interest legislation that couldn’t muster across-the-aisle support or maybe just more infantile two-party spitball fights that goo up the political landscape. Indeed, divided equally, 692 bills means each legislator introduced about 7 pieces of legislation. For most of us, 7 good ideas in a lifetime would constitute a life well lived. Seven every year is a bad joke and exposes an out of control legislative body. It doesn’t seem the peoples right to I and R is the problem.
Though actual voter fraud is more rare than UFO sightings, it is always raised as an issue. But in fact, with electronic petition signings, comparison of registered voters and validation of petition signers should become much easier and less costly to the state. Moreover, those interested in an initiative, but unregistered, might be drawn to register so that they could vote on the issue. Indeed, it has been shown that states with the initiative process have higher voter turnout.
Title Setting: As it now stands an initiative first has to go before the professional law-drafting staff at the legislature to answer questions as to form and intent. This is a useful and necessary step. But it gets less useful as the initiative goes before the Secretary of State for title setting and a determination if it satisfies the single-subject requirement of state law.
While the initiative is written by citizens with help from the legislature’s legal staff as to form, the title is largely written, not by citizens, but by a team of state lawyers. Lawyers are not generally known for the purity of their prose. Jonathan Swift they ain’t. Secondly, the title’s language can be challenged and modified by the initiative’s opponents. They have a right to demand even another chance to change the title at a follow up hearing if they so choose. And they almost always do, for their objective is too obfuscate, protect their interests. Still not done, the opposition has even a third chance by asking for a review by the state Supreme Court of the single subject set by the title board. This gauntlet of gotchas has to be eliminated.
First off, the opposition should have no right to challenge the title. The legislative opposition wouldn’t be allowed to write the title to a bill it opposes in the legislature. It shouldn’t be allowed in citizen legislation either. The opposition has equal protection. It can write its own initiative, and it can vote against the initiative at the ballot box.
Bills authored in the legislature are burdened by law with the same single subject requirement as are citizen initiatives. But these bills aren’t sent to the state Supreme Court for validation. The people’s legislation shouldn’t be either. If the opposition wants to challenge the initiative after it is voted into law, they then have the opportunity to do so in the courts, just as with any other law. I’ve co-sponsored initiatives. One sat in the state Supreme Court for three months. This was effectively a pocket veto, reducing the petition gathering time by half.
And finally the title itself has to be simplified. Several years ago, a study found Colorado’s title for the term-limit initiative, which was run in 15 states simultaneously, to be the longest and most jabberwocky like of all. Colorado’s was “a single 283-word run-on sentence written in obfuscating legalese.” California’s term-limit title was 3 words long, Oregon’s 10 words. In fact, in some states a readability test is required. Oregon uses the Flesch-Kincaid Grade Level Readability
Score, with 100 being the easiest to read. In Oregon the title must have a readability score of at least 60 to get on the ballot. In Colorado, over one recent ten-year period, one-third of the initiative titles had a readability score of zero. On average they had a score of 12. Colorado should adopt a readability threshold at least the equal of Oregon’s. Moreover, the introduction of electronic signature gathering makes for more informed decisions, not so title dependent, because people can read the entire initiative at their leisure, without the pressure of signing a petition with a confusing title on the spur of the moment in a supermarket parking lot with anxious kids hanging on their clothes.
The purpose of the title must become a clear summary of the initiative, an illumination, a help to the voter.
Restore the Referendum by Limiting the Safety Clause: One of the universities in the state should undertake a thorough review of the safety clause. How many pieces of legislation really deserve this designation? Until those results are in, the number might be limited to 3 percent of the bills passed. In 2015, that would still leave 11 of the 366 bills passed with the safety clause generously attached.
Repeal of HB 1057: One of the talking points the Governor and the corporatists at Colorado Concern adopted was the idea of transparency: That with a two sentence precis on the economics of an initiative all would be revealed. This is of course patent nonsense, and suggests that Molly Ivans was right, the “bidness of guvment really is bidness.” After all, most of the environmental laws in this country have costs associated with them, but that does not define them, it may not even help understand them. It certainly doesn’t determine their civic or social value. Most people in this country still support the Clean Water Act, the Clean Air Act, the Safe Drinking Water Act, and a host of other environmental and public health laws. Many wish them stronger or at least better enforced, but few would be convinced of their worth by a two sentence quip concerning their economics. This would be government by the very dull for the very dull.
Furthermore, the economic statement on the front of the initiative in a very real way becomes the initiative itself, as I think was intended. For many busy people this may be all they see. It will determine their desire to sign when asked to do so on a busy street corner. It is pure deception, and once again places the citizen’s legislation in the background, much like the title-setting gauntlet helps put the citizen legislator in second place. In fact, in this case it is even worse, since it has nothing to do with the intent of the initiative. It is an impact if the initiative were to become law, but only one of many. Rather, it has everything to do with erecting another impediment to understanding the purpose of the initiative by forces unfriendly to citizen activism.
Another ugly aspect of HB-1057 is the requirement that both co-sponsors must attend every meeting called on the initiative, even those called by the opposition. If they don’t, the process is terminated, and the whole process must begin all over. A co-sponsor of an initiative I was involved in had to go to her aunt’s funeral only days before a rehearing called by the opponents. We found a substitute as the Secretary of State’s rules allowed. The Court however said the Secretary had overreached, there could be no substitute, not even in the case of death. HB 1057 validates that imbecilic conclusion, and in so doing displays the statute’s true disdain for the people and their rights to participate in government.
Oh, did I mention for all their good work the legislature voted themselves a 25 percent pay increase. The Governor would get a 40 percent increase for his good work, as would many county executives. In all, this last minute, end of the session dividend will cost taxpayers another $8 million annually, adjusted every 4 years for inflation. Dickey Lee Hullinghorst, the House speaker and Hickenlooper faithful on HB 1057, reportedly removed 3 standing committee members for one day and substituted 3 committee members friendly to the last minute pay raise bill so that it could get to the floor of the House. Rep Lois Court the term limited civics teacher and HB 1057 champion voted for it. She also announced she hopes to continue her work at the legislature by seeking a vacant seat in the state senate.
And of course, the bill contained the safety clause. Their pay raise certainly is necessary for the “immediate preservation of the public peace, health, and safety.” Who could disagree?