By far the most difficult ballot initiative Colorado voters face in November is Amendment 71 – Colorado Imposition of a Distribution Requirement for Citizen-Initiated Constitutional Amendments. Also known as “Raise The Bar” or “Rig the Bar”, this amendment would make it more difficult to amend the Colorado Constitution.
While there are some good arguments for this proposal, I am a definite “No” vote, for reasons I explain below.
What Amendment 71 Does
In a nutshell, Amendment 71 would make it more difficult to amend our state constitution by requiring at least 2% of all petition signatures come from registered electors in each of the thirty-five state senate districts. The current requirement is that initiatives must receive at least 5% of the total number of votes cast for all candidates for the office of secretary of state in the previous election.
In practice, under our current system, a group could get its ballot initiative to a vote by collecting roughly 100,000 signatures in a handful of Front Range cities like Denver, Boulder and Fort Collins.
Changing the requirement to be 2% of all registered electors in each district would make it much more difficult to get something on the ballot and would only be accessible to special interests with the deep pockets to pay for it.
In addition, under our current system a ballot initiative need only receive 50% plus one vote to become a constitutional amendment. Amendment 71 would raise that threshold to 55% of the votes cast.
Arguments For
America’s founders intentionally made it difficult, but not impossible, to amend the United States Constitution. Indeed, in Federalist No. 43, James Madison writes that “The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.”
While every state except Delaware allows for the state legislature to propose legislatively referred constitutional amendments, only eighteen including Colorado allow voters to amend the constitution via the ballot initiative process. Of the eighteen states, it’s very difficult to meet the qualification standards in four of them, and an additional three have added additional hurdles in recent years.
In fact, Colorado’s signature threshold of 5% is the lowest of all eighteen states. The other states have threshold requirements of 8% to 15%, and some of the states have additional restrictive requirements. In Nevada, TWO votes are required to pass a constitutional amendment.
It’s clear that Colorado has one of the easiest Constitutions to change, making our state a target for out of state groups of all kinds to try to cement their policy agendas in our state constitution. Since its adoption on August 1, 1876 it has been amended 152 times.
“Raising the bar” would make it more difficult to amend our state’s constitution, it is true. And if this proposed amendment were differently written, I could well be in support of it. However, there is one clause that makes Amendment 71 into a poison pill.
Arguments Against
There really is only one argument against this proposed amendment, and it is contained in paragraph (b):
IN ORDER TO MAKE IT MORE DIFFICULT TO AMEND THIS CONSTITUTION, A CONSTITUTIONAL AMENDMENT SHALL NOT BECOME PART OF THIS CONSTITUTION UNLESS THE AMENDMENT IS APPROVED BY AT LEAST FIFTYFIVE PERCENT OF THE VOTES CAST THEREON; EXCEPT THAT THIS PARAGRAPH (b) SHALL NOT APPLY TO A CONSTITUTIONAL AMENDMENT THAT IS LIMITED TO REPEALING, IN WHOLE OR IN PART, ANY PROVISION OF THIS CONSTITUTION. [Emphasis mine]
In other words, “raising the bar” means it’s more difficult to amend the Constitution, but the same threshold does not apply to repealing provisions of the Constitution. This makes it very easy for wealthy out of state interests and deep-pocketed Colorado oligarchs to get their most hated part of the Colorado Constitution repealed: the Taxpayer Bill of Rights (TABOR).
Since it was approved by Colorado voters in 1992 by a 54% to 46% margin, TABOR has been under relentless attack from big government advocates. Limiting the growth of government and requiring voter approval for tax increases or retention of excess revenues is anathema to them.
Many good government reforms that Colorado citizens have put in place over the years would be at risk if Amendment 71 passes including TABOR, term limits, prohibitions on public funding for abortions and others.
A Look at the Money
Looking at the donors to the Issue Committee supporting this ballot initiative is also highly instructive. Of the $4.2 million the “Raise the Bar – Protect Our Constitution” Issue Committee has raised, $3.8 million has been raised by 21 donors contributing $20,000 or more including an assortment of oil and gas industry groups and other business interests. I can see why the oil and gas industry would support this measure – making it harder for the perennial anti-fracking and other crazy anti-industry ballot initiatives to make the ballot – but I don’t think they see the downside of the poison pill described above.
Of the remaining 150 donors who make up the remaining $0.4 million, 139 are individuals donating an average of $745 apiece. As we’ve seen with the other proposed amendments, this one is not a grassroots effort among a wide swath of Coloradans.
Widespread Opposition
The opponents of Amendment 71 are many and they span the political spectrum. From the libertarian leaning Independence Institute to the liberal Common Cause, numerous groups have voiced their opposition.
Right-leaning groups in opposition to Amendment 71 include:
- Independence Institute
- Denver Republican Party
- Libertarian Party of Colorado
- Arapahoe Tea Party
- Colorado Union of Taxpayers
- The TABOR Committee
Progressive groups opposed to Amendment 71 include:
- The Bell Policy Center
- The Colorado Fiscal Institute
- ProgressNow Colorado
- New Era Colorado
- Conservation Colorado
Seeing this list of groups in opposition to Amendment 71 reminds us that sometimes, “politics makes for strange bedfellows”. In this case that old saw is certainly true.
The Aurora Sentinel and the Denver Post have announced opposition to Amendment 71.
Another troubling aspect is that the proponents of Amendment 71 have not lived up to their own standards: they have been unable to demonstrate that they obtained signatures from at least 2% of the voters in each senate district and have not committed to withdrawing the amendment if it fails to reach the 55% vote threshold.
A Better Mousetrap
In theory, I am all for making it more difficult to amend a constitution. The United States and component states were founded as constitutional republics, not simple democracies that allow for the tyranny of the majority. If it were not for the poison pill of the 50% requirement for repeal, I would be all in favor of Amendment 71. The next time someone tries something similar, I hope they include provisions to make it equally difficult to REPEAL an amendment as to pass one.
As with most of the other ballot initiatives this year, I urge a “NO” vote on Amendment 71.
By Richard D. Turnquist
October 12, 2016
