Opinion: Legislators make admirable attempt to open up the political process

I want to acknowledge Colorado state Representatives Elizabeth Epps (D-Denver) and Bob Marshall (D-Highlands Ranch) for starting a process that may have huge benefits in reducing the polarization of our political processes. Last week, according to The Denver Post, they filed suit against the Colorado House of Representatives and its leaders and caucuses of both parties for violations of the state’s Open Meetings Law. The alleged violations include closed caucus meetings and the use of electronic messaging apps that auto-delete to secretly communicate.

Bringing this lawsuit required enormous courage from these first-year representatives. And, critically, they hit on a problem that I think is, in many ways, responsible for the kind of positionality and buzz-word politics that many of us find so appalling. 

It appears that when a subset of the legislators decide among themselves behind closed doors what they want to do, their ability to then listen to their constituents who see issues that have not been fully considered or who have a different balance of values or points of view is markedly reduced. And what should be serious discussions get turned into “performance art,” to use former Speaker of the House Terrance Carroll’s words. By the way, Speaker Carroll held open caucus meetings, so we know it can be done.

What’s worse, when a decided-on  policy approach needs to be re-thought right from the initial assumptions and goals, as was sorely needed with Polis’s land grab bill, that almost never happens. It becomes too uncomfortable for the proponents to admit that what they concocted in private really was a mistake. In the case of that bill, reports indicate that the advocates are still locked into the inflated objective of “solving the housing crisis” by hugely expanding Colorado’s population with unaffordable market-rate housing, and seem tone-deaf to the implications and impacts.  

It is this getting stuck in a simplistic problem statement and one-dimensional solution that forces the other side, or sides, to fight against it tooth and nail. Cooperation becomes difficult to impossible. And disagreements become polarized, and useful discussions are at an end.

You might think that Colorado’s Open Meeting Law would prevent, or at least mitigate, such situations. The law has clear and well-written requirements. Even small meetings are supposed to be open, announced and have minutes kept. But enforcement is a problem. Based on my reading of summaries of many cases on the Lexis website (go to Colorado Statutes Lexis, then CRS 24-6-402, then scroll down to Annotations) it appears that all judges can do is require that the violators hold an open, public meeting and redo their decision process. And the citizens who went to the trouble to file the lawsuit might recover attorneys’ fees. The violators suffer no serious consequences or criminal penalties.

The bigger problem is that, once legislators get used to operating with closed-door caucuses where the big decisions are made, the public meetings that follow become pretty proforma. Or, as with the Polis bill, the level of opposition that shows up is a total surprise and puts those in power back on their heels.

My fond hope is that the parties’ leaders make a joint commitment to opening all their meetings to the public. That would involve ending the holding of closed caucuses and policy meetings and forbidding the use of secret communications. 

Hold goal-setting sessions with all sides present where the issues of concern are identified. Then have those with strong interest and knowledge about given issues present their thinking. And make sure that all real options are considered and evaluated for both positives and negatives. This may require setting up diverse committees of legislators (representing all relevant perspectives) to assemble options frameworks for policy areas of great interest and prepare the necessary complete and objective analyses.

A key to all this would be a serious commitment by the leaders to do whatever they can to convince the other legislators to not engage in political name-calling or sound-bite politics. This will not be easy at first, but if people from the same party as the bad actors won’t put up with it and say so if it happens in a meeting, then those engaged in this objectionable behavior will stop, since otherwise they will be ignored.

I sincerely hope that our leaders will give such an approach a real test. Who knows? It might change politics as we know it. And then the Colorado Open Meetings Law will finally accomplish its intended purpose — a truly open and participatory democracy.

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