Response to the Denver Post’s op-ed of August 20, The need to raise the Bar for amending Colorado’s constitution

It’s never a good idea to limit the people’s rights in a democracy, for as Tom Paine remarked correctly, “The strength of government and the happiness of the governed” is sustained only when the common people have freedom to “mutually and naturally support each other.”


One of the first instruments of mutual, democratic support in Colorado is the initiative, or the right of the citizens to write law.  But this essential right is threatened by a proposal from rich and powerful interests who would suppress it with proposed constitutional amendment 71, called Raising the Bar.  They are fast about the business of trying to make a case for radical change where none exists.   They claim that we-the-people have gone mad and are destroying their constitution by adding new amendments to it, willy-nilly.  As a result the state constitution isn’t as lovely as it could be if it were treated as a religious relic.

It is time, say they, for them to save us from ourselves.  They forget Thomas Jefferson held the opposite view and famously said that in a democracy a revolution might be necessary every generation, for “ I hold that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.”  The people’s right to legislate via the initiative is revolution writ small.


The corrective measure the Raising the Bar crowd touts to save us from our ourselves is to increase the number of voters needed to pass an amendment to our constitution from a simple majority to a super majority of 55 percent.  They would make an exception in the case of repealing constitutional measures.  In those cases a simple majority would still apply, an exception that defies explanation if the concept of equal treatment is the yardstick, or unless repealing TABOR still fills their sugar-plum dreams.


They also lament that most initiatives are proposed as constitutional amendments rather than statutory laws.  But here again the fault is with the ruling elite, for it is they that will not give up their right to change any statutory law the year following its passage.  The people know that, and they know the huge effort it takes to get an initiative on the ballot could be nullified the following year by an unfriendly legislature beholding to the monied interests.


More punitive is the measure’s requirement that 2 percent of the registered voters in each of the 35 senate districts would have to give their approval before a proposed constitutional amendment could even get on the ballot.  This requirement destroys the concept of one person, one vote and replaces it with some primitive notion of geography as talisman.  We do not require statewide office seeker to first get the signatures of 2 percent of the voters in each senate district before getting on the ballot, nor should we.  The same logic should apply to the right of initiative.  The time to vote on initiatives and candidates is on election day, after there has been a public discussion of the issues and the candidates, not before.  In fact this provision is nothing but a vile attempt to pit city people against rural people using the fiction that we share no common ground.


Raise the Bar’s  supporters and monetary backers is a who’s who of Grand Poobahs  in the state.  It includes the Denver chamber of commerce, CEO’s of the largest corporate interests in the state, with the oil and gas industry prominent in its advocacy. and a royal mix of political elites, including former governor Dick Lamm, who seems to have forgotten his political career owes much to the initiative, for he made his name by rallying the people against the monetary and environmental costs of the 1976 Winter Olympics in Colorado using the initiative process.


As intended, Raising the Bar will effectively repeal the initiative for those for whom it was intended, the citizens with their limited monetary resources and geographic reach.  It will not disenfranchise the sponsoring elite with unlimited money and reach.   They have hired two former state legislators from opposing parties, Greg Brophy and Dan Gibbs, to act as sponsors and give the proposal the veneer of being of-the-people.


In this regard, the history of the initiative is instructive.   The people added it to the constitution in 1910 as Article V, the Right of Initiative and Referendum.  It was the age of robber barons and railroad monopolies and was added as a defense against unresponsive or corrupt government.  The courts have described it as a first right, superior to even the legislature’s right to make law.  Even SCOTUS has twice had to warn the elites to keep their hands off.  But they are addicted to power and apparently hate sharing.  To many, 2016 feels a lot like 1910.


Article V’s right of referendum has already been dealt a death-blow by the legislature.  The referendum gives the people the right to vote on any legislation passed in any legislative session, but the legislator has taken to adding the “Safety Clause” to most legislation, claiming the legislation is necessary for the immediate safety of the people.  By so doing, they deny the public the right of debate and approval.  For example, the legislature attached the safety clause to their last minute 30 percent pay increase in 2015, thus making a referendum vote by the people on their pay increase impossible.


The following are but a few of the measures in our state constitution that have been added by initiative.


The right of Home Rule: this provision makes health and safety ordinances passed in home rule cities superior to those of the state when found in conflict.  Both the courts and the legislature have made home rule a nullity with regard to oil wells in people’s back yard.  As a result a citizen’s initiative, initiative 75, to restore the constitutional guarantee of home rule may be on the ballot in November to restore a right that is already there, but which a corrupt power structure has destroy.


The legalization of marijuana:  Legalization has created some local fears, but the right of home rule can still be applied on this issue, unlike oil and gas drilling in backyards, and sales within city limits can be denied.  Most importantly, legalization recognizes the obvious by decriminalizing the leisure habits of many citizens and eliminating most enforcement costs.


Established Greater Outdoor Colorado, GOCO, by allocating funds from the state lottery for the acquisition and protection of public land,  It is perhaps the initiative processes crowning achievement, supported by the vast majority of citizens.  Still the initiative’s mandate has been ignored by the legislature, which when in a fiscal bind, has used the GOCO money as its private piggy bank.  As a result, the people have had to place follup initiatives on the ballot telling the legislature GOCO is not their private piggy bank.


These are a few of the roughly 200 constitutional amendmnets that were passed in the last 106 years, less than half by citizen sponsored initiatives, most by referral from the legislature.  By comparison, the legislature introduces over 600  bills each year.  Maybe half become law.  The citizens aren’t abusing the first right to legislate, anything but, and the shrill alarms set off by the ruling elite in this election season are all false.

If the monied interests were truly interested in making the initiative process better, they would actively support electronic petition gathering.  This would not only modernize the process, but decrease costs for both the state and citizen law makers.  Electricity’s been around since at least Thales.  Isn’t it about time we caught up with the ancient Greeks?


Phil Doe

Be The Change Environmental Director

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