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Amendment 71: A passionate debate over the Colorado Constitution

October 10, 2016 Updated: October 10, 2016 at 10:27 am
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What do Colorado Springs Mayor John Suthers, former Mayor Mary Lou Makepeace, millionaire LGBT rights activist Tim Gill and the oil and gas industry have in common? They all support Amendment 71, which would amend the Colorado Constitution to limit future amendments.

Strange bedfellows also make up the opposition. From the libertarian Independence Institute to the progressive Conservation Colorado, the conservative Colorado Union of Taxpayers and the liberal Common Cause, disparate groups have united to fight 71. So have think tanks such as The Bell Policy Center and the Colorado Fiscal Institute.

On the proponents' side, supporters include every living Colorado governor: Gov. John Hickenlooper and predecessors Bob Ritter, Bill Owens, Roy Romer and Dick Lamm, as well as chambers of commerce and business organizations across Colorado.

So what's all the fuss about?

Under Amendment 71, future amendment petitions would need voter signatures from 2 percent of the approximately 143,700 residents in each of the state's 35 Senate districts. Once on the ballot, an amendment would need 55 percent approval, compared with the simple majority today.

Proponents call it "Raising the Bar" to protect the constitution from being muddled with too many amendments passed too easily and containing too many details.

It's not raising the bar, argues Jon Caldara, president of the Independence Institute. "It's rigging a system."

Campaign finance reports filed Oct. 3 show that the oil and gas industry provided 74 percent of Amendment 71 contributions - $3.1 million of the total $4.2 million, notes Jessica Goad, communications director for Conservation Colorado.

So does her group's concerns with fracking explain its distaste for Amendment 71?

"Not at all," Goad said. "It's because we believe it is an intent by wealthy special interests to make it impossible for anyone else to have a say in amending the constitution. But I do think we're seeing a real-world example play out here with the donations pouring in."

Contributions to the opposition campaign lag far behind, but include $11,000 from the Colorado League of Responsible Voters, which includes $2,000 from the AFL-CIO, and $4,823 from the Vote No on 71 committee, with $2,400 from the Independence Institute.

With anti-fracking pushed in the past two elections, the oil and gas industry naturally wants 71 in the constitution, said Rich Coolidge, of the Raise the Bar campaign.

"So that industry especially sees this as: 'Maybe we do need to go statewide (to all 35 Senate districts),'" Coolidge said.

To prove their point, the pro-71 campaign "was the first one to hit all 35 Senate districts and collect signatures."

Did they get 2 percent from each?

"The secretary of state isn't equipped to verify that," Coolidge said.

Colorado Common Cause did vet the signatures, though, and found that 91 percent came from urban areas, Executive Director Elena Nunez said.

An Independence Institute analysis found that the campaign didn't get 2 percent in at least four districts, with the lowest percentages - 1.2 and 1.4 - coming from Fort Collins and Boulder districts.

"It was the college towns with lots of votes and not very many families that were the roadblocks. So one or two left-wing Senate districts could block good ideas that the rest of the state wants," Caldara said.

"I think that's what's scaring a lot of folks," said Scott Wasserman, executive director of The Bell Policy Center. "Even this well-financed campaign couldn't meet that threshold . it shows how expensive it's making efforts to amend the constitution."

Other passionate arguments also are at play.

Colorado's constitution is the easiest in the nation to amend and packed with many amendments that should be in statute instead, proponents of 71 say.

"We have the third largest constitution in the whole country, behind Texas and Alabama. And neither of those even offer initiatives," Coolidge said.

The Citizens in Charge Foundation puts Colorado's constitution in the middle. The average state constitution has been amended 146 times; Colorado's has 155 amendments. Fourteen other states' constitutions have as many or more, the foundation reports.

Since 1990, 105 amendments have been proposed in Colorado, records show. Voters adopted 45 and rejected 57.

It's as easy to push through an amendment as an initiative, but an amendment is preferable because it's far more difficult to overturn, said Suthers, whose law career includes 10 years as state attorney general.

"Marijuana, animal trapping, dueling, nuclear detonations - it's a statute book, and that's not what your constitution should be," the mayor said. "The problem with our constitution, it has so many things conflicting. The combination of Gallagher, which is not well understood, and TABOR virtually ensures property tax will never be a source of revenue for most cities in Colorado . When those two things were passed, there was no discussion about the interrelation."

Even opponents say such reliance on amending the constitution needs to be curbed. But 71 goes too far, they say.

Denver's Mark Grueskin, named "Colorado's best election lawyer, bar none" by Campaigns & Elections magazine, cites the 55 percent approval as "a significant burden" to even changing one word in TABOR. It also would apply to amendments referred by the Legislature, after committee consideration and a two-thirds vote in both houses.

"This makes it much harder for the Legislature to address urgent problems that need to be fixed," said Tim Hoover, of the Colorado Fiscal Institute.

Raise the Bar says broad geographical support is critical because amendments are locked in the constitution forever.

The 2 percent requirement is intended to ensure that every corner of Colorado gets a voice.

"A lot of these issues interest groups pursue are largely urban or rural, and everybody ought to have a say on them," Suthers said. "If you can't get 2,000 signatures in Denver and Boulder, maybe we ought to think about whether it should be in the constitution."

Opponents say such efforts would be too expensive for all but the uber-wealthy, and failure to get one district's buy-in could scotch a worthy proposal for the other 34. Just as the energy industry's "decline-to-sign" petitions kept fracking off the ballot, so could such a campaign in one dense Denver district thwart an entire amendment campaign, Hoover said.

Said U.S. Rep. Jared Polis, D-Colo., "While Amendment 71 is being sold as common-sense reform to the ballot initiative process, in reality, it's nothing less than a power grab by the political and corporate elites and funded almost entirely by the oil and gas industry to keep grassroots citizens' initiatives off the ballot."

Coolidge said anyone who can't get 2,000 signatures from 100,000 people has "a very extreme position" and can use the alternative initiative process. "We're not changing that; we're only changing the (amendments to the) constitution. They build up this straw man - the one Senate district - it's kind of a slap in the face for rural communities. Because right now, Denver does decide what goes on the ballot."

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