Feudal rulers have always preferred dutiful servants. Things have not been the same since Magna Carta in 1215 first guaranteed the right to petition about grievances. The nuisance of citizen involvement in their government was further enlarged in the First Amendment to the U.S. Constitution, which protects the petition and other free speech rights. Petition rights were formalized in the Colorado Constitution in 1910 as Initiative and Referendum. The Legislatures displeasure with petitions is demonstrated by its parade of attacks.
The current attack is House Concurrent Resolution 1998-1004. HCR-1004 will frustrate petitions for amending the Colorado Constitution, by increasing the signature requirement by 20%. HCR-1004 masquerades as reform by reducing the signature requirement for citizen initiated statutes, and protecting citizen-initiated statutes from legislative tampering for 2 years (unless 2/3 of the Legislature wants to tamper with the statute, in which case tampering would be allowed).
HCR-1004 is founded on several false beliefs:
One: There are too many initiatives. “Too many” is subjective. One is too many, for someone who disagrees with the idea of citizens controlling the government. All petitions are offensive to politicians, because the initiative process is an alternative method used only when the Legislature does not act. Petition use increases when legislative bodies are out of touch. The already difficult Colorado procedures insure that over 90% of petitions fail to reach the ballot. Should the voice of the people be further restricted or should the Legislature do more to respond to the peoples critical needs?
Two: There are too many amendments to the Colorado Constitution. Who should say what is “too many”? The low pass rate for proposed constitutional amendments suggests that voters are rightfully cautious about citizen initiatives. Elections work. Only 36 of 113 (32%) on the ballot in 86 years have passed. On the other hand the Legislature has originated 62 amendments. Since 1962 over 70% of amendments to the Colorado Constitution have originated in the Legislature. Because HCR-1004 does not seek to limit the Legislature, it fails in its alleged objective of reducing excess constitutional amendments.
Three: Many constitutional amendments should be statutes. This is true for a few, but not “many.” There have been only 36. Over half are indisputably constitutional, because they deal with governmental structure: home rule, recall petitions, judicial reform, reapportionment, number of legislative seats, annexation votes, and term limits. Probably half of the remainder are properly placed in the Constitution. Thus, a maximum of 9 issues would have been potential candidates for statutory instead of constitutional initiatives.
The authority to legislate is delegated to the Legislature by the sovereign people of Colorado. In so delegating, the people “reserve to themselves the power to propose laws and amendments” by petition. The legislature has no duty or authority to subvert petitions. In fact the legislature is entrusted to protect, defend, and enlarge the process. As the Colorado Supreme Court explained, “the general assembly is vested with power, subject to limitation(and) is divested of all discretionary authority(and) may not make any other limitation than that provided in the constitution” (Yenter v. Baker, 1952).
In another case, the state court affirmed the importance of the petition right: “The initiative power reserved by the people is to be liberally construed to allow the greatest possible exercise of this valuable right.” (Glendale v. Buchanan, 1978).
Improvement must begin by recognizing that direct initiatives deal effectively with “conflict of interest” issuesissues where the legislature is reluctant to act because the issues involve restrictions of legislators power. Valuable public service can be provided by reforming procedures that encourage abuse. In particular, citizen initiatives are a good way to cure problems that the government has created in the initiative process itself. These include: excessively long and confusing titles, unnecessary delays in assigning ballot numbers, inconsistent court rulings in both time delays and substance, subversion of referendum petitions, arbitrary signature invalidation, technicalities, unreasonable cure methods and periods, dysfunctional recall petition procedures, and prejudicial blue book (citizen election guide) drafting.
Initiatives are an essential part of the system of check and balances in our state Constitution. The legislature, instead of treating initiatives like a nuisance, ought to honor them, and enact reforms to simplify the process.
Dennis Polhill is a Senior Fellow at the Independence Institute, a free-market think-tank located in Golden, Colorado. http://i2i.org
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