Why You Should Vote Yes for Amendment 71, to Raise the Bar on Amendments

Editor's note: As part of our continuing election coverage, we're taking a closer look at amendments and propositions that will be on the Colorado ballot in November. Today we examine Amendment 71 by way of an interview with a spokeswoman for the campaign.Tomorrow we'll highlight a Q&A with a representative of the opposition.

Amendment 71, known as Raise the Bar, proposes to make it more difficult for constitutional amendments to reach the Colorado ballot by requiring that signatures be collected from 2 percent of all registered voters in each of Colorado’s 35 state senate districts, as opposed to an overall number. Additionally, amendments would no longer be approved by a simple majority; they'd have to notch 55 percent support to win passage.

Below, campaign consultant Josh Penry, the former minority leader of the Colorado Senate, makes the case for Raise the Bar and responds to criticism from opponents of the amendment.

The following transcript of our conversation is supplemented by photos from the Raise the Bar Facebook page, as well as links and occasional insertions for reasons of fact-checking and clarification.

Westword: What do you want voters to know about Raise the Bar?

Josh Penry: Colorado has the easiest constitution in the United States to amend. It's being wildly abused by groups on the left and the right. Amendment 71 will make it more difficult to amend the constitution; 71 does that by requiring groups that want to amend the constitution to collect signatures on a statewide basis. The current practice finds proponents of constitutional amendments simply collecting signatures in Denver and Boulder. That would change.

The second requirement is that a proposed constitutional amendment has to receive 55 percent of the vote in order to be enacted.

What laws or rules make Colorado the easiest state to get an amendment proposal on the ballot?

It's kind of across the board, whether it's the signature requirement — 5 percent of the votes cast in the Colorado Secretary of State race in the last election. That's sort of the first benchmark. Two-thirds of the states that have an initiative process where you can amend the constitution require 10 percent or more.

One critic of our proposal said, "Colorado is not the easiest on a signature basis. Look at Nebraska." But Nebraska calls for signatures by 10 percent of registered voters. So if the Nebraska rule was applied here in Colorado, it would be 300,000 signatures. [Currently in Colorado, around 100,000 signatures are needed.] So on the signature rule, we are far below the national norm.

There's also no geographical requirement. A number of states require you to collect signatures in a specified number of counties, or get a specified amount of the vote from different counties. So the missing geographical requirement is another example of where we're far below the national average. And then there's the requirement of a simple 50 percent plus one for passage — that's not something many states have. Florida, for example, requires 60 percent for constitutional amendments to be approved. A handful of states say you have to get 50 percent plus one for passage, but you have to do that in successive elections. [Get more details about various state requirements in this Ballotpedia post.] So across the board, whether it's what we benchmark against as far as signature collection, the number of signatures required, whether it's applied to registered voters or actual voters, and then the vote total — on all those measures, Colorado ranks among the easiest, if not the easiest.

The other point worth noting is that we also have among the easiest and most accessible processes for statutory processes — to change simple laws. And that wouldn't change under Amendment 71.

Is the reason you're not asking for a statutory change is because you'd rather have groups try to make statutory proposals as opposed to amendments?

When Amendment 71 is approved, if it's approved, Colorado will still have among the easiest processes, and probably the easiest process for the initiative process, but we'll have a higher burden for the constitution. The reason that's germane now is that Colorado is one of the few states that have the exact same process to change a statute as the constitution. What that does is, it creates a kind of perverse incentive. You're an interest group, you've got a couple million bucks in your pocket and you've got a big idea that sounds good on a yard sign. If you're going to go to the trouble, all things being equal, why not put it into the constitution, where it will be forever? That's the analysis, basically, because the rules are the same.

We're saying the rules should be different. A statute is different from the constitution. The constitution serves a different purpose. It's there to protect fundamental rights and core values — the core operations of government. But the basic laws should be incorporated in statute. So it's pretty simple. You want to amend a statute? You'll have a very low standard — among the lowest in the country. If you want to change the constitution, the standard will be a little higher.

On just the question of the constitutional piece and where we'll stack up after this, Florida, as I mentioned, requires 60 percent of the vote. We're less than that. And we're not requiring a super-majority vote in successive elections. So there are a number of ways in which, even if Amendment 71 is enacted, we won't be anywhere near the most difficult state constitution in the country to amend.

From your point of view, then, this isn't a Draconian proposal, but a more measured change?

It's down the middle of the fairway. Many states don't have a process for citizens to amend the constitution. And among those that do, with Amendment 71, we'd be somewhere in the middle.

Opponents have suggested that the new standards will make it impossible for a true grassroots effort to land a constitutional amendment on the ballot, since it would be very expensive to pay for signature collection statewide. What's your response to that?

What this would do is force organizations to start earlier and build statewide support — to demonstrate statewide infrastructure and actually get on the road and get out and make the case on a statewide basis.

It's a phony argument. If you look at who's pushed the most recent amendments in the State of Colorado, both in recent years and historically, it tends to be well-funded organizations. That's the status quo. This is a process that's dominated by special-interest groups, and one of the reasons Colorado attracts the special-interest investment is that the constitution is so easy to change here. In most states, it's more difficult. As they road-test the big idea of the week, Colorado becomes a more attractive target, because they can cram it into the constitution, where it's very difficult to change. It's effectively there forever. Very few constitutional amendments have been taken out. That reality is part of what invites so much special-interest spending in Colorado.

But what does it mean if you want to change the constitution? First of all, it's going to force groups to make an analysis — to ask, is this something that belongs in the constitution? Or is this something that would be better changed through the statutory process? If it's not a broadly uniting idea or concept that you can get 55 percent of the vote for, you can still change the rules of the game through the statutory process. But if it is broadly uniting, then it shouldn't be difficult to go out across the State of Colorado and get a relatively small amount of signatures. After all, it is the entire state's constitution.

You've stressed that this is a nonpartisan issue. Why should folks on both sides of the ideological divide want this process to be a little more difficult?

This is such an important question beyond who's for it and who's against it. The why. And the why is because the constitution protects the rights of all of us. And those rights should not be easily taken away, amended or mucked with. We see it each and every cycle, and I think there's a sort of broadly uniting notion that the constitution isn't for shenanigans. That's why, even in our polling, which we've done a fair amount of, the strongest supporters of Amendment 71 are primary-voting Republicans and primary-voting Democrats. This might be the one issue that unifies the base of both parties, because they both get it. The rights that are enshrined in our constitution are sacred, and it shouldn't be easy to take those away.

[Denver mayor Michael Hancock has been appearing in advertisements supporting Amendment 71.]


Tell me a little bit about the funding of your campaign.

The original proposal came from this outreach effort called Building a Better Colorado, which was chaired by Al Yates, Hank Brown and a number of other luminaries. They built a broad base of support for a number of proposals, and this is one that they came to me and asked me to run the campaign for when that process was run. Many organizations are supporting it. There's lots of support from business and civic organizations, from specific sectors. Obviously, energy sectors have played a significant role, but so has AARP and chambers of commerce and individual donors from the left and the right. Tim Gill, whose name is synonymous with progressive leadership in this state, is a contributor.

The individuals backing this campaign represent the full spectrum of leadership in this state: left, right and center. And certainly our financial support does, as well.

There's a perception that Raise the Bar is being driven by individuals from the oil industry who want to prevent future anti-fracking proposals from being placed in the constitution. Is that an inaccuracy from your point of view?

It is. There have been a lot of groups that have seen radical, out-of-the-mainstream amendments proposed. Energy is one. The health-care sector is another one. The restaurant industry, which is under siege this year, is another. Those groups definitely have supported this both through word of mouth and organizing their members financially. But we also have farmers. The ag community is broadly represented. Almost every small, medium and large ag group in Colorado has written a fairly significant check to this measure. Why? Because there are a lot of California goofballs who try to bring their ideas about how best to manage their land or what to do with the state's water resources — trying to essentially change their property rights or the way they live their lives.

So there's broad support, and the energy sector is one of our supporters. But the notion that that's what this is about is silly. AARP — their reputation and their brand speaks for itself. The Rocky Mountain Farmers Union — their name and their reputation speaks for itself. People like Lee White, who's been a leading critic of TABOR, is active in this; he's one of our co-chairs. So there's a diversity of support. We are proud of that support, and it's one of the reasons we're confident we're going to win this thing in the fall.

Do you feel that because Colorado has a reputation for the ease of passing constitutional amendments, it has a reputation as a bellwether state — where if something can be passed here, it can build momentum for passage in other states? And if so, do you feel that Amendment 71 could cut down on that?

As state senator Rhonda Fields said, "Colorado has become a Petri dish." And that ain't right. The constitution is not a game, and it's not a piñata — and that's what it's become. There's no doubt about it. Even a state like California, which is kind of known for ballot-box anarchy, they require 8 percent of signatures from voters to put an amendment on the ballot. Even the states where they have very robust constitutional amendment processes, their rules are tougher. So there's no doubt about it. The lowness of our bar and our standards invite the kind of game-playing that the voters in Colorado have become accustomed to.

And they see it in full flower. My Blue Book showed up, as it did for a couple of million other Coloradans. It looks like the Sears Roebuck catalogue. People get this intuitively — that the system is being abused by the lowness of the bar.

How would you bottom-line the reasons people should vote for Raise the Bar?

The constitution protects the core rights, the core values of people. And those rights, those values, should not be easily gamed with or taken away. Our constitution should be more difficult to amend than a simple state law, and if you want to change the constitution, you should have to engender some minimal support from all across the State of Colorado, and not just in the urban areas.