Amendment 71 seeks to "protect" state Constitution, but from whom? 

A law to end all laws

click to enlarge Same-sex marriage advocates often targeted state laws. - RENA SCHILD / SHUTTERSTOCK
  • Rena Schild / Shutterstock
  • Same-sex marriage advocates often targeted state laws.

Back in 2014, the Independent interviewed Marc Solomon, the national campaign director for Freedom to Marry.

It was a little less than a year before the U.S. Supreme Court would make marriage equality the law of the land, a goal Solomon and others had worked cleverly toward for the past decade.

Instead of just advocating for a change to federal law, or working toward a single U.S. Supreme Court victory, the same-sex marriage movement operated on every level — including the state level. And, many would argue, it was the legalization of same-sex marriage in state after state, starting with Massachusetts in 2004, that paved the way for a national law.

In 2014, Colorado was legalizing same-sex marriage due to court actions that impacted 30 states, and Solomon was shutting down his campaign.

It was a sudden, exhilarating victory. But Daniel Ramos, executive director of One Colorado, says if that hadn't happened, LGBT groups planned to ask Coloradans for marriage equality in a 2016 citizen-driven initiative.

Regular citizens can amend the Colorado Constitution if they can convince enough people, anywhere in the state, to sign petitions, then pass it with majority of votes. This November, voters will decide on seven such initiatives, everything from creating a presidential primary to providing Coloradans with universal health care.

But the backers of Amendment 71 or "Raise the Bar," want to change that system by creating bigger hurdles. First, petition signatures would be required from 2 percent of registered voters in each of the 35 state Senate districts. (The Legislature can still refer an initiative with a two-thirds vote.) Second, new constitutional amendments (from citizens or the Legislature) would need 55 percent approval to pass. There is one exception in 71: An amendment that only repeals part or all of an existing amendment could pass with a simple majority.

Backers of 71 say it's just too easy to amend the Colorado Constitution. That's why we have more than 150 amendments and a glut of conflicting requirements. If it was harder to amend, they say, more groups would try to change statutes, which aren't as set in stone.

But while 71 is nonpartisan — and has an impressive coalition behind it — the effects could weigh more heavily on progressive causes that have increasingly been turning to the same-sex marriage playbook.

Some of the most prominent initiatives on this Colorado ballot are part of larger movements. Four states have labor union-backed ballot initiatives to raise the minimum wage, including Colorado's Amendment 70. Patty Kupfer, campaign manager for the "yes" campaign, Colorado Families for a Fair Wage, says the strategy is deliberate.

"Everyone knows Congress is broken, and so a lot of groups that want to advance economic justice issues in this country are moving toward a state strategy," she says.

Proposition 106, allowing terminally ill patients to seek aid in dying, already passed in Oregon and Washington. Toni Broaddus, spokesperson of Compassion and Choices (and their 501(c)4 Compassion and Choices Action Network), worked on the same-sex marriage campaign and says it provided key insights. Critically, she says, it taught her that starting a conversation in states can lead to larger changes.

"Changing the entire country at once is very difficult," she says.

Shannon Watts, founder of Moms Demand Action for Gun Safety in America (see story on p. 12), says after the Sandy Hook Elementary School shooting, Congress failed to act. But ballot initiatives could expand background checks in two states this November.

"Obviously, we failed after Sandy Hook [to pass laws] at a federal level," Watts says, "so we pivoted to the states."

The Washington Post reports that with Republicans controlling Congress plus most state legislatures and governor's mansions, progressives are using state ballot initiatives to change laws.

"This fall," the article noted, "voters in 35 states will vote on 157 different ballot initiatives. Seventy-four of those ballot initiatives are proposals the voters themselves put on the ballot, via petition. ... And a majority would implement progressive policies: minimum wage increases, gun control, marijuana legalization, charter schools."

Of the 18 states that allow citizens to change constitutions by initiative, all have different requirements, but most agree Colorado's are some of the easiest. And that can create problems.

Citizens amended the Colorado Constitution to include 1992's Taxpayer's Bill of Rights, which requires a vote on all tax increases and forces government budgets to ratchet down even as needs spike, and 2000's Amendment 23, requiring yearly state increases in spending on K-12 education. Navigating those two, with other obligations and spending needs, has landed fast-growing Colorado in a budget pickle.

Besides laws that create conflict or are simply federally illegal, Colorado attracts special-interest groups hoping to create national change by first changing state laws. Personhood Colorado tried three times for a constitutional amendment making a zygote a person. Then there's our most famous amendment, the 2013 law legalizing pot.

Amendment 71 was born of the bipartisan process Build a Better Colorado. Led by former University of Denver chancellor Dan Ritchie, business and political leaders toured the state, seeking input on how to better the government. Greg Brophy, spokesman for the Raise the Bar – Protect Our Constitution campaign and a former Republican state senator, notes those meetings included thousands, and tens of thousands more participated online.

Every living Colorado governor supports 71, as do politicians of every party, including Mayor John Suthers. The issue has the solid backing of business groups. Of the $2.7 million in monetary contributions Raise the Bar collected as of Sept. 14, $1 million came from a group established to fight constitutional initiatives aimed at reining in the oil and gas industry. (Those initiatives failed to collect enough signatures to make the ballot this year.) Vital for Colorado, another oil and gas group, gave $600,000. The Colorado Gaming Association, which represents casinos, gave $150,000.

Brophy has no qualms explaining that many donors are giving to Raise the Bar because they fear voters will approve a law that will hurt their industry — including fracking.

"What this is," he says, "is a coalition of victims, people who have been victimized by the coalition of special interest groups."

It's not that he's never seen an initiative he liked — Brophy calls himself "arguably one of the biggest TABOR supporters in the state."

But, he says, "In 2020 Colorado — that's been thoroughly Californicated — are we more likely to get something akin to TABOR or something akin to a progressive income tax?"

Raise the Bar's opponents, who have no official campaign, are surprisingly diverse. There are progressive groups and think tanks like Progress Now Colorado, the Bell Policy Center, Colorado Common Cause, New Era Colorado and Conservation Colorado. But they aren't alone — plenty of conservative groups oppose it as well.

Jon Caldara, president of free-market think tank Independence Institute, wrote in an editorial published by several Colorado newspapers that term-limits, ethics laws, requirements for transparency, and the bar against using tax money for abortions came out of the initiative process, as did TABOR.

"None of these reforms would have happened if Amendment 71 was in place," he wrote. "So it's no wonder the political establishment loves this proposed scheme. It takes away our power to rein them in."

Arguments against 71 focus on the idea that it raises the bar too high. Gathering signatures in every Senate district would be financially impossible for most groups, they argue, and one district could hold back an initiative.

Scott Wasserman, president of the Bell Policy Center, says he initially thought 71 was a good idea, but ended up opposing it because even repealing parts of the constitution requires collecting signatures in all Senate districts.

Ian Silverii, executive director of ProgressNow Colorado, goes further.

"All [71] does is Raise the Bar for who is allowed to bring constitutional amendments to the ballot and who is not," he says. "The difference is that the threshold is so high that only the ultra-powerful, ultra-wealthy can bring constitutional amendments."

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