By John A. Straayer Direct

O n Nov. 7, 2006, voters handed critics of direct Democracy’s democracy the gold-standard example of the foolishness that the initiative process can pro- duce. Nearly 100 years ago, Grove Johnson voiced his disdain for direct citizen lawmak- ing, which his son Hiram was so successful Disaster promoting in California, when he quipped, “the voice of the people is not the voice of God, for the voice of the people sent Jesus to Through the initiative process, the cross.” Coloradoans haven’t yet sent any- one to the cross, but they have made a prophet Colorado recently passed of the senior Johnson by endorsing a measure that has produced a confusing and comical mess rather than new and improved political a law with loads of “ethics,” as promised by the sponsors. Colorado’s Amendment 41 carried the short title, “Standards of Conduct in Govern- unintended consequences. ment,” and passed with 62.6 percent of the vote. A constitutional amendment, 41 was intended to restrict gift-giving by interest Amendment 41 groups and lobbyists to elected public offi- cials and others in positions of public trust. It was also designed to prevent legislators from 14 ballot measures. But for amendment spon- pensation before any other such officeholder immediately becoming lobbyists after their sors Common Cause and millionaire politi- or members for a period of two years fol- terms of office. cal activist —who following the lowing departure from office.” The measure But its consequences to date include issu- adoption of their measure, said that they makes it illegal for a lobbyist to give even ance of official opinions to the effect that didn’t really mean what it said—forgiveness a penny’s worth of literally anything to a scholarships for children of public employ- may be more difficult. public official or public employee, includ- ees and performance awards for employees ing gifts, meals or drinks. The constitutional are probably illegal; the resignation of more The power of the initiative language reads, “No professional lobbyist… than a half-dozen legislators; questions as Amendment 41 was placed on the Colo- shall give or arrange to give … any gift or to whether the newly elected governor may rado ballot through the initiative process. As thing of value … whether or not such gift or legally recruit legislators for positions in his described in the ballot title, which ran just meal, beverage or other item to be consumed cabinet; and the curtailment of Capitol break- under 200 words, and in the full constitu- is offered, given or paid for in the course of fasts, which had been enjoyed by legislators, tional text, the measure bans gifts to all pub- such lobbyist’s business or in connection staffers and student interns for decades. lic elected public officials and all employees with a personal or social event …”. Most voters, and indeed, even Amendment of all local and state governments and agen- President and for- 41’s sponsors, saw the measure as a reason- cies and their immediate families insofar as mer U.S. Senator Hank Brown interpreted able way to curtail questionable connections the gifts have a cash or in-kind aggregate the gift ban as prohibiting Nobel prize-win- among interest groups and public officials and yearly value of more than $50. Governments ning professors from accepting the financial remove even the appearance of such where and governmental units covered are cities, award that would accompany the prize. On none existed, and to keep departing legisla- counties, colleges and universities, execu- Brown’s request State Attorney General John tors from becoming instant lobbyists. Vot- tive branch agencies, the legislature and the Suthers reviewed the matter and concurred; ers might be forgiven for what has resulted, courts. Employees, from the governor to a Nobel winner could not accept the award. since the actual language of the new law was professors, state cops, receptionists, janitors, A fire-fighters association official indicated lengthy and complex and 41 was just one of prison guards and legislative staffers are cov- that the organization might have to close its ered, and so are their spouses and kids. foundation, which had made scholarships John A. Straayer is a political science professor at Colorado State University. He runs an internship program at the In addition, legislators may not “personally available for fire-fighters’ children and pro- Capitol each year. represent another person or entity for com- vided funeral assistance for fire-fighters’ sur-

30 state legislatures March 2007 As the full implications of Amendment 41 necessarily be bound by the legislature’s came into focus, its sponsors explained that interpretation.” As the start of the 2007 leg- they didn’t really mean what the plain lan- islative session approached, lawmakers were Direct guage of their measure said, and they hired already at odds on both the wisdom and an attorney to try to help the legislature clar- legality of tinkering with 41. ify the sponsors’ true intentions. Government To oversee the new ethics law, Amend- officials asked the attorney general to inter- ment 41 established a commission, which is Democracy’s pret the new law. He concluded that the mea- itself a matter of some confusion and contro- sure means what it says, not what the authors versy. A lengthy portion in the amendment now say they meant it to say. The attorney describes the commission, but the basics general lamented that his conclusions were are these. There are five members, one each “extremely unfortunate, yet unavoidable” appointed by the Senate, the House of Rep- Disaster and that the measure’s results were “absurd.” resentatives, the governor and the chief jus- Government lawyers and administrators tice of the Colorado Supreme Court, with the went about issuing warnings and behavioral fifth member selected by the other four on a Through the initiative process, guidelines for public employees. The mix of vote with a minimum majority of three. All the plain legal language and the measure’s must be registered voters in the state, with Colorado recently passed intent as expressed after the fact by its spon- no more than two from one political party. sors caused enough worry and confusion that The commission is authorized to “hear com- when a law firm arranged a seminar plaints, issue findings, and assess penalties, a law with loads of on the new law, 100 people signed up. and also to issue advisory opinions, on ethics issues arising under this article.” No easy fix unintended consequences. But fixing the new constitutional law will Unforseen consequences be difficult, both legally and politically. The constitutional wording provides com- Legally, there is a limit to what the legislature mission “members” with subpoena power can do by statute to clarify a constitutional but it is unclear whether that power belongs provision. The amendment states that legisla- to them individually or collectively. The law tion may not “limit or restrict the provisions” stipulates that “Any person may file a writ- vivors. Lobbyist Frank DeFilippo, who also of the law. And politically, lawmakers risk ten complaint” and this, combined with the serves on the governing board of the Colo- appearing disingenuous and self-serving if possibility that any one of the commissioners rado School of Mines, wondered if he would they tinker too much. Some members, along may individually issue a subpoena, has led be in violation of the law for buying his own with the amendment’s own sponsors, seemed some to worry that the whole process may groceries since that would amount to a lob- optimistic that legislation designed to imple- have political witch-hunt potential. byist gift to a public official. With respect ment and/or interpret the measure could steer This is not the first time voters in Colorado, to the curtailment of legislative breakfasts, it more clearly toward the authors’ intent. like those in other states, have endorsed initi- Representative Alice Borodkin quipped to a Others were not so sure. Deborah Fallin, ated measures that had great “curb appeal” Rocky Mountain News reporter, “For God’s a spokesperson for the Colorado Education but turned out to be problematic with unfore- sake, this whole thing is stupid. All this for a Association echoed the view of many others, seen consequences. And it is not the first free doughnut?” noting that “it doesn’t really matter what they time direct democracy critics have had rea- The two-year lobbying prohibition meant. It matters how the courts interpret the son to question both voter competence and prompted more than a half-dozen lawmakers, language.” Senator Shawn Mitchell, an attor- the wisdom of legislating through a process who were term-limited out or lost their elec- ney, told Rocky Mountain News columnist lacking in hearings, testimony, compromise tions, to resign their offices early in advance Peter Blake that the amendment is “a poorly and amendment. Through a series of initiated of gubernatorial certification of the election. drafted pile of quicksand,” but “the legislature measures, Colorado voters have stripped the Some intended to go into lobbying but oth- can’t convert it into an innocuous, reasonable state legislature of much of its fiscal author- ers, referring to the language “personally measure.” Mitchell added that if the legislature ity, deprived it of an institutional and policy represent,” worried that even communicat- redefined the broad coverage of the measure so memory by limiting legislative terms, and ing with lawmakers on matters of concern to as to target lawmakers but not all government helped give birth to unaccountable indepen- an employer or association with which they employees, “… that simply ignores the plain dent campaign groups through highly restric- might be connected would constitute a vio- and simple language of the amendment.” tive campaign finance “reform.” And now, lation. Senator and pediatrician Kiki Traylor Attorney General Suthers is on the side with Amendment 41 in place, the voters have told the Rocky Mountain News that she was of Fallin, Mitchell and other skeptics. In his made it legally problematic for a college resigning because she wanted to “protect my words to the Rocky Mountain News, “Legis- janitor’s kid to receive a scholarship or for a ability to advocate for kids and health care lative action can’t supplant the clear language lobbyist to invite the neighboring policeman issues.” of the measure, nor will a reviewing court and his family over for Easter dinner.

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