Opinion: Limits on direct democracy, Round 3


Once again, the Colorado Legislature has taken up the job of amending the Colorado Constitution to make it more difficult for others to do the same. The current proposal, Senate Continuing Resolution-001, has many similarities with other recent attempts, including Referendum A (1996) and Referendum O (2008). Unfortunately, the Legislature is acting with tone-deafness to Colorado citizens` desire for direct democracy, and without adequate consideration of the effects of the proposed changes. So I expect that, once again, the proposal will lose at the ballot box.
This particular attempt to take power away from the citizens is apparently in response to complaints by opponents of the 2010 Amendments 60, 61, and Proposition 101 that they had to spend money to defeat these proposals. While I agree that these proposals were ill-conceived and dangerous, part of democracy is fighting bad ideas.
Currently, citizens can initiate legislation by gathering signatures to put either a statute or constitutional amendment on the ballot. The basic difference between the statutory and constitutional amendment approaches is that currently the Legislature can revise or void a citizen initiated statue by a simple majority vote in both the Senate and the House, but a constitutional amendment can only be changed or repealed by another citizen vote. Since citizens generally initiate legislation because the Legislature has failed to act, the current system for initiated statutes requires citizens to trust that legislators will not undercut their efforts, and so lacks much appeal.
The Legislature is now proposing to grant a very small increase in additional protection to citizen initiated statutes — for three years after the statute takes effect, any change or repeal would require a two-thirds vote of each house (Senate version) or a 60 percent vote (House version). As a tradeoff for granting this minimal additional protection, the Legislature wants to make it much more difficult for citizens to undertake constitutional amendments.
First, for citizens to do a constitutional amendment under SCR-001, a significant number of signatures would have to be gathered in each of Colorado`s seven congressional districts, not just statewide as currently. This is obviously more onerous, but, worse, it could lead to seven separate concurrent challenges to the adequacy of the signatures, a significant burden for anyone without huge financial resources. But the Legislature could still put amendments on the ballot by two-thirds votes, so its relative power is increased.
Second, the overall requirement for passage of a constitutional amendment would be 60 percent of the popular vote, with the exception of simple repeals (in whole or in part) of amendments passed prior to 2013. This exception is obviously focused at making it easier to repeal TABOR and Amendment 23. But in order to appeal to many voters, amendments to either of these must have some give and take, and not just be partial or complete repeals. Thus, the net effect may be that neither TABOR and nor Amendment 23 is ever amended.
SCR-001 also has some inconsistencies. As I said, SCR-001 requires only a simple majority vote to repeal any constitutional amendment passed before 2013. The obvious logic is that if something passed by majority, it can be repealed by majority. But SCR-001 itself is exempted from this – it could pass by 50-plus percent, but to repeal or change it would require 60-plus percent. Also, if SCR-001 passes, proponents of constitutional amendments will have to gather a significant number of signatures in all congressional districts, but could actually win with an overwhelming vote in only a few.
The Legislature reacted to the 1992 passage of TABOR (which it could have prevented by proposing a simple “no tax increase without a vote” amendment) by supporting and getting passed a single-subject requirement for future constitutional amendments. This may come back to haunt them, as SCR-001 arguably has two subjects, the constitutional amendment process itself, and the legislative voting process to change initiated statutes.
Is there a better way to limit constitutional amendments? I suggest that the Legislature start by abandoning this particular effort, and simply provide better protection for citizen-initiated statutes. For example, they could propose that for the first, say, 12 years after passage, initiated statutes would require a two-thirds majority of both houses to be changed. This would provide good protection but allow technical fixes that most legislators support. And, perhaps more to the point, it might actually pass.

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