Coloradans ability to change the constitution at the ballot box gave us the Taxpayer’s Bill of Rights and legal marijuana. For better or for worse, it’s shaped our state in major ways. Some people think it’s gotten a little out of hand.
Amendment 71, known as Raise the Bar, would make it harder to amend the constitution going forward. We’ve had some fun with it, calling it a ballot measure for people who don’t like ballot measures, but there’s a lot at stake.
Here’s the language you’ll see on your ballot:
Shall there be an amendment to the Colorado constitution making it more difficult to amend the Colorado constitution by requiring that any petition for a citizen-initiated constitutional amendment be signed by at least 2 percent of the registered electors who reside in each state senate district for the amendment to be placed on the ballot and increasing the percentage of votes needed to pass any proposed constitutional amendment from a majority to at least fifty-five percent of the votes cast, unless the proposed constitutional amendment only repeals, in whole or in part, any provision of the constitution?
What does that mean?
Colorado is one of the easier states to place a constitutional amendment on the ballot. Which doesn’t mean it’s easy, per se. You need signatures from 5 percent of the voters who voted in the last election for Secretary of State, which is 98,492 right now, and you can pretty much count on a good chunk of them being thrown out, so in reality you need a lot more signatures than the legal minimum.
But compare that to Arizona, where you need signatures equivalent to 15 percent of the people who voted in the last election for governor, or California and Oregon, where it’s 8 percent. These states also have a higher bar for constitutional amendments than they do for initiatives that would just change state law, while Colorado requires the same number of signatures regardless.
Amendment 71 doesn’t increase the number of signatures you need to get an amendment on the ballot, but it requires that they be gathered in every part of the state. Two percent of the registered voters in each state Senate district must sign the petition for an amendment to even make the ballot.
And once on the ballot, a constitutional amendment would need 55 percent of the vote to pass. Constitutional amendments to repeal portions of the constitution, though, would still only need a simple majority.
This amendment does not change the requirements for a statutory initiative to get on the ballot. Statutory initiatives change state law, not the state constitution.
Statutory initiatives can be changed later by the legislature, so for many issues, advocates prefer to pass a constitutional amendment to make sure no one tinkers with it later. However, the downside of putting something in the state constitution is that if there are unintended consequences, it requires an additional constitutional amendment to make the necessary fixes.
Why should it be harder to amend the state constitution?
“It should be harder to amend the constitution than it is to change state law,” said former state Sen. Greg Brophy, one of the proponents of Raise the Bar. “If you’re going to do something as permanent as amend the constitution, you should first include people from all across the state of Colorado before you put it on the ballot, and you should demonstrate that you have broad and not narrow support, which is why you should have 55 percent. We can do this without affecting citizen’s right to resolve what the legislature failed to address through the initiative process.”
Brophy said there are far too many issues being inserted into the constitution. Even those that don’t pass are a worry and a bother until they’re defeated.
Brophy bristles at the criticism of Amendment 71 that it’s taking away people’s right to petition the government. The threshold for statutory initiatives wouldn’t change with this measure, just that for constitutional amendments.
If people are worried about legislators changing their initiatives after voters pass them, they do have recourse, he said.
“There’s a much better solution,” he said. “Rather than sticking your issue in the constitution as a way to punish legislators for tinkering with it, why don’t you spend your time and energy and talent to un-elect a few legislators who overturned the will of the people.”
Who supports Amendment 71?
A who’s who of current and former elected officials from both parties, including Gov. John Hickenlooper and former Denver Mayor Wellington Webb, and a wide array of business groups have signed on.
Most notably, the oil and gas industry has taken money it raised to fight two anti-fracking measures that failed to make the ballot and shifted it into Raise the Bar. It’s an investment in not having to deal with anti-fracking constitutional amendments in the future.
The list of supporting organizations includes the AARP, the Metro Mayors Caucus, Downtown Denver Partnership, the Farm Bureau, numerous chambers of commerce, the Colorado Bar Association, Colorado Association of Realtors, Colorado Dairy Farmers, Colorado Pork Producers Council and the Colorado Contractors Association. You can see a full list here.
What’s wrong with this idea?
Opponents say the process we have today is already difficult enough. Every year advocates for a range of causes fail to get their issues on the ballot, and amendments that do make the ballot fail.
“Voters are discerning about what belongs in the constitution and what doesn’t, and what they’re proposing is roadblocks to the initiative process,” said Elena Nuñez, executive director of Colorado Common Cause.
Due to TABOR, tax increases are constitutional amendments in Colorado, and most of them have failed. Numerous attempts by anti-abortion groups to define fetuses as legal persons in the state constitution have also failed.
She called the initiative process an “important accountability issue” because it allows voters to address issues on which the legislature has failed to act due to conflicts of interest and political pressures.
The requirement to get signatures in every senate district might sound good, but in reality it means that something that has broad support could be thwarted in a single senate district. While the requirement to travel around the state might seem to protect the interests of rural voters, a measure supported on the Western Slope could be killed with a concerted decline-to-sign campaign in a dense, urban senate district.
In an analysis of the proposal prepared for opponents by attorney Mark Grueskin, he noted that changing even a single word or sentence in the constitution would require a much larger effort than before. Even amendments referred to the ballot by the legislature — which already require a two-thirds vote of each house — would need to pass by 55 percent, and even measures to repeal constitutional amendments would need to be circulated in every senate district. He describes Amendment 71 as burdening a fundamental right by making it prohibitively expensive to amend the constitution and giving veto power to a very small portion of the population.
Nuñez said the senate district requirement is “antithetical” to the concept of majority rule.
“It allows special interests to launch expensive opposition campaigns and block something popular from moving forward,” she said.
And she said it’s no surprise that Raise the Bar has bipartisan support from elected officials. They share an interest — across party lines — in keeping control of government.
Who opposes Raise the Bar?
The opposition is also strikingly diverse, ranging from Colorado Right to Life to NARAL Pro-Choice Colorado, from environmental groups like Conservation Colorado and the Sierra Club to anti-regulation groups like the Independence Institute and the Libertarian Party of Colorado, from the anti-tax TABOR Committee and Colorado Union of Taxpayers to the liberal think tanks Bell Policy Center and Colorado Fiscal Institute.