Signed, sealed and rejected: These political activists are rabble with a cause
In Paul Grant's experience, few things are as costly as free speech. It must be paid for again and again.
Thirty years ago, Grant moved to Colorado from Louisiana, determined to shake things up. He was an engineer and a Libertarian activist, barely out of his twenties, when he decided to run for Congress against incumbent Democrat Tim Wirth. He collected the necessary signatures to petition his way onto the ballot — but was quickly thrown off after Wirth's people objected.
At the time, a state law required an independent candidate to be registered as an independent for a year prior to the election. Grant hadn't been in Colorado that long, and he knew that federal law prohibited such restrictions for federal candidates; a U.S. representative merely has to be 25 or older, a citizen and a resident of his or her state at the time of election. So Grant went to court and ended up getting the law changed.
He went on to challenge Wirth in two elections and Governor Dick Lamm in another. But he soon ran afoul of Colorado election law again — and the Teamsters, the Public Utilities Commission, a trucking tycoon and other powerful interests — when he got involved in a modest effort to open up the state's transportation industry to more competition.
With the aid of a like-minded friend, Grant had launched a small organization dedicated to promoting free enterprise. Deregulating the trucking business, which was controlled by a few big haulers that received great deference from the PUC, seemed like a good place to start. The situation had led to virtual monopolies, including NW Transport, a trucking company owned by future Colorado Rockies owner Jerry McMorris. Removing the industry from PUC control would, in theory, allow smaller operators easier access to the market. Grant started circulating a petition that would put the issue on the ballot.
The effort had two serious problems from the start. One, Grant didn't have nearly enough volunteers to gather all the required signatures. Two, many of the people who supported deregulation were afraid to sign or donate, out of fear of retaliation by the PUC, the Teamsters, or the big companies that dominated the market.
"We ran into a lot of people who expressed support but said they couldn't do anything publicly," Grant recalls.
The backers looked into paying people to gather signatures, but Colorado law made it illegal to pay petition circulators. Grant was convinced that, like the residency requirement for federal candidates, the law was simply wrong. The First Amendment protects speech, particularly political speech, and courts have repeatedly recognized the citizen's initiative process as one of the most sacred forms of political speech.
Grant hit upon what he considered an elegant solution. He hired an "advocate" to speak in favor of the petitions while a volunteer collected signatures. Then the two would trade places every hour: The volunteer would get paid a wage for advocating, while the advocate would volunteer with the clipboard for an hour.
"I was clearly paying for the speech," says Grant, deadpan. "In my mind, I had separated the two activities. But Colorado found it devious, and there was a complaint filed — by a transportation attorney trying to protect the monopoly."
The Office of the Attorney General sent an undercover agent to infiltrate the campaign. Grant was served with a complaint and faced an administrative hearing and possible felony prosecution. The petition drive was stopped cold.
Grant sued in federal court, lost at the trial level, lost again 2-1 on appeal. His attorneys sought a review of the case by the entire Tenth Circuit Court of Appeals, which overruled the previous panel and declared Colorado's ban on paying petition circulators unconstitutional. The state appealed that decision to the U.S. Supreme Court — and was crushed 9-0.
"Colorado's prohibition of paid petition circulators restricts access to the most effective, fundamental, and perhaps economical avenue of political discourse, direct one-on-one communication," wrote Justice John Paul Stevens. "The First Amendment protects [petitioners'] right not only to advocate their cause but also to select what they believe to be the most effective means for so doing."
The landmark 1988 decision Meyer v. Grant mowed down similar bans in several states. "It opened up paid petitioning around the country," Grant notes.
Local officials were far from pleased with the decision. Then-secretary of state Natalie Meyer complained that the Supreme Court just didn't understand the problems Colorado was having with petition fraud. Before long, state lawmakers had come up with a set of new restrictions on petition circulators, requiring them to be registered voters (effectively banning professional circulators who traveled from state to state); to wear special badges that would identify them as paid or volunteers; to disclose what they were paid and who was paying them; and much more.
Grant, who'd gone to law school by this point, decided to challenge the new rules in collaboration with the American Constitutional Law Foundation, a local think tank championed by alternative-fuel guru Bill Orr ("Nobody's Fuel," September 4, 2008). Once again, the wrangle went all the way to the highest court in the land. In 1999 the Supremes voted 6-3 to strike down the most burdensome aspects of Colorado's law, including the registration, badge (the "scarlet letter," as Grant calls it) and financial-disclosure rules, as unwarranted intrusions on free speech.
In the wake of the two decisions, Grant became a sought-after attorney for petition battles in other states. But he quickly tired of what he came to regard as a Sisyphean endeavor.
"It was fun for a while," he says. "But then I saw what the legislatures were doing. One state would come up with a law banning pay by [petition] signature, and then it would become a model law that spread across the country like a virus."
Grant may have made his own strategic retreat, but Colorado remains one of the most critical battlegrounds in the country for the citizen initiative process. Critics of the state's petition laws say it's too easy to get an issue on the ballot here, no matter how kooky, poorly conceived or potentially ruinous; that the process is riddled with fraud; and that it allows "special interests," sometimes fueled by mostly out-of-state funding, to undermine the authority of the state legislature. Petition supporters complain that state officials exaggerate the degree of fraud and work furtively to keep initiatives they don't like from ever reaching the voters, making the process far more expensive and convoluted than it needs to be.
"Colorado legislators just despise the citizens," says Douglas Bruce, the former lawmaker and anti-tax activist whose frequent legal skirmishes over petition drives date back to the epic struggle to pass the Taxpayer's Bill of Rights (TABOR). "They pass these laws just to put the burden on citizens, who have to hire a lawyer, go to court and get an injunction. And there's never any consequences for these criminal SOBs in the legislature who are constantly conspiring to take away people's right to vote, people's right to petition."
Two key battles over petitions this election season may well shape the future of the initiative process in the state for years to come. In federal court, an unlikely coalition of petition proponents — including the conservative Independence Institute, marijuana activist Mason Tvert and civil liberties attorney David Lane — are mounting a constitutional challenge to House Bill 1326, a law enacted last year that represents the legislature's latest attempt to crack down on professional petition circulators. Last month the group managed to obtain an injunction, striking the law's requirement that circulators be paid hourly rather than by the signature, and a trial on other issues is pending.
On another front, opponents are massing to defeat three tax-cutting initiatives that have already made it onto the ballot this year, despite an unusual degree of secrecy surrounding the joint campaign. In response to a complaint from government and business interests opposed to the measures, an administrative law judge recently found that the named proponents had violated campaign finance laws by failing to disclose the sources of their funding. Much of the hearing, though, was focused on the murky, behind-the-scenes role that Douglas Bruce had in developing and promoting the petitions.
Bruce has denied any direct involvement in the campaign. He claims he's being harassed by pro-tax forces and Mark Grueskin, the attorney he's clashed with on several hard-fought petition challenges. Grueskin, who represents the complainants, says the case is a good illustration of the need for transparency in petition drives.
"The resources these proponents said they used [to get on the ballot] were just the tip of the iceberg," Grueskin says. "People in Colorado have a right to know about the entire iceberg."
To Paul Grant, the whole contretemps has the feel of déjà vu all over again. He was invited to testify against HB 1326 last year but declined, he says; he didn't think any degree of rational argument would stop its passage, and he knew the whole mess would just end up in court anyway. And the line between transparency and harassment in the battle over the anti-tax initiatives is thinner than most people realize, he adds.
"They're just trying to do everything they can to hamstring the citizen initiative process," he says. "They view it as some kind of renegade process. And they want to eliminate people like Bruce, who's a pain in their side."
Colorado's reputation as a petition-happy state has its origins in the ballot-box dreams of a century ago. Reform-minded leaders of the Progressive movement introduced the initiative process in several western states in the early 1900s, determined to give ordinary citizens more of a say in how they were governed.
Today, two dozen states allow either ballot initiatives or legislative referendums — ballot questions devised by the legislature — but the process is rarely used in about half of those. Colorado remains one of the more lively experiments in direct democracy, in part because it allows citizens not only to enact new statutes by initiative, but also to nullify laws already passed by the legislature and even to amend the state constitution.
The threshold for getting such measures on the ballot in Colorado is relatively low. The number of signatures required to propose the repeal of a nettlesome local ordinance may be only a few dozen in a small town, a few thousand in a large municipality. Getting an issue on a statewide ballot requires enough valid signatures to equal 5 percent of the total number of votes cast in the most recent election for Secretary of State; in 2010, the magic number is 76,047. Since one out of four signatures collected tends to be invalid — usually because people don't fill out the information correctly, completely or legibly — a statewide ballot campaign has to shoot for more than 100,000 signatures to make it through the official validation process.
For years, petition gathering was a volunteer effort; for some grassroots campaigns, it still is. But many activists, including the man who ran three volunteer campaigns to get TABOR passed, say that approach simply isn't practical for most statewide initiatives.
"Gathering signatures is more work, more stress than the campaign," says Douglas Bruce. "People don't feel like going out on their day off, standing in front of a store and being abused by people who resent being asked to sign a paper to give themselves the right to vote on an issue. To most people, a petition is just some guy bothering them in front of Walmart. They shun you, like you have leprosy or something."
Grant's successful challenge of Colorado's ban on paid petition circulators paved the way for what has become a niche industry of professional companies that collect signatures for a handsome fee. The companies employ itinerant workers who travel from state to state and are often paid by the signature. A true hustler can earn between $50,000 and $150,000 a year coaxing passersby to endorse the cause of the moment.
Critics of the pay-per-signature approach say that it encourages fraud. The circulators aren't scrupulous about the signatures they gather, the argument goes, because they're primarily interested in quantity. Despite their setbacks in front of the Supreme Court, Colorado lawmakers have tried again and again to tighten regulations regarding the registration, identification and pay arrangements of professional circulators. The latest crackdown stems from a surge of petition activity in 2008, during which "the honesty of many petition circulators was at issue," according to the bill lawmakers passed a few months later.
The 2008 general election featured a staggering fourteen statewide ballot questions – ten citizen initiatives, four legislative referendums. (Another four initiatives were withdrawn by proponents at the last moment.) Issue committees spent an estimated $70 million on campaigns pushing or opposing the various proposals. And the brawl spawned numerous stories, documented and apocryphal, about a host of petition scams.
"What we saw in 2008, we'd never seen before," says attorney Grueskin. "There was widespread use of third parties to do the circulation. I suppose it's always gone on to some extent with these pay-by-signature outfits, but the magnitude was shocking."
The state requires petition circulators to sign an affidavit stating that they personally collected the signatures being submitted. But officials claim that some circulators illegally subcontracted the work to other, unidentified parties who may have been underage or otherwise unqualified. A video surfaced of a girl who claimed she was fourteen years old and had been gathering petitions for an older male, who'd instructed her to lie about her age if asked.
Issue opponents claimed that certain circulators offered misleading information about their proposals in order to trick people into signing them. Some circulators provided phony addresses or names on their affidavits. One listed as his address a closed tanning salon; another gave a mailbox drop. By the time such irregularities were discovered, the people involved had left the state. "We had reason to believe this was happening over and over again," Grueskin says.
Last year, Grueskin worked closely with legislators to draft changes in the law aimed squarely at the professional circulators. House Bill 1326 made it illegal to pay a circulator more than 20 percent of his or her total compensation on a per-signature basis; required circulators to be Colorado residents and make themselves "available to be deposed" if someone questions the validity of their petitions; required them to take a state-run training program; subjected them to possible liability, including paying their opponents' attorney fees, in the event of an accusation of fraud; and several other restrictions.
The get-tough measure sailed through the statehouse and quickly won Governor Bill Ritter's approval. "This is something we can be proud of, and we are ready for 2010," declared Senate president Brandon Shaffer, one of the bill's sponsors.
Petition proponents denounced the new law as a heavy-handed attempt to make it too expensive to mount any kind of citizen's initiative. Since nobody could figure out how to implement the 20 percent formula, circulators would have to be paid strictly by the hour, which meant the top performers wouldn't be able to reap higher rewards. That, and the various other restrictions involving residency and training and so on, would limit the pool of possible circulators and drive up the cost of gathering signatures. But the same rules didn't apply to candidates trying to petition their way onto the ballot.
"If they're so concerned about fraud," says Independence Institute president Jon Caldara, "why is it that paying by the signature is illegal for citizens, but paying by the signature for candidates is still legal? This shows what the legislature wants: to stop the initiative process."
Grueskin notes that candidate circulators have to be registered voters in the candidate's district. "I've never seen fraud of this kind in a candidate setting," he says. "There's tighter control and more accountability. To be an initiative circulator, you only need to have a heartbeat and be eighteen years old."
(A complaint recently filed against the secretary of state and the campaign of U.S. Senate candidate Jane Norton, who petitioned her way onto the GOP primary ballot, claims that her petitions didn't have enough valid signatures or qualified circulators. Norton's campaign has denied the allegations.)
Caldara wants to place on the ballot this year an amendment to the state constitution that would affirm a "right to health care choice," allowing Colorado citizens to opt out of the more onerous requirements of federal health-care reform. But under the new law, hiring a professional company to gather the signatures would cost him at least double what it has in the past. Circulators who used to charge a buck or $1.50 per signature were quoting prices this spring that work out to three to five dollars a signature; in other words, a statewide petition drive that used to cost around $125,000 could now cost as much as half a million.
"I don't think the First Amendment is reserved for Jared Polis or Pat Stryker or other rich people who can afford to pay by the hour," Caldara says. "Shame on the legislature. They don't like TABOR, the Sunshine Law, term limits — I get that. But there's got to be a better way to fight this than just to outlaw the people's voice."
Mason Tvert, executive director of the pro-marijuana group SAFER, regards the new law as a formidable barrier to further pot decriminalization measures such as the one his group successfully championed four years ago. "We have a large number of volunteers, but it's virtually impossible to qualify for the ballot without paying for signatures," he says. "Our organization spent $120,000 in 2006 to get our issue on the ballot, and we ran the campaign with just two people. With everything they've set up now, it would be impossible to do that again without a large paid staff."
Tvert, Caldara and other petition enthusiasts are now hammering away at the new law in federal court. Secretary of State Bernie Buescher has already conceded that the law's new deadline for submitting petitions for this year's ballot, which trims three weeks off the traditional date of August 2, is in conflict with the state constitution. And the plaintiffs have presented a parade of expert witnesses to challenge many of the assumptions about fraud built into the legislation.
The testimony revealed that only one person has been prosecuted for fraud related to a citizen's initiative in the last eight years in Colorado, and that the state does a poor job of keeping track of how many of the complaints about petitions have to do with paid circulators rather than volunteers. In fact, the idea that paying by signature is somehow the root of fraud seems to be based almost entirely on conjecture rather than solid proof. People who run petition-gathering companies testified that less than 1 percent of the signatures they gather are forged (as opposed to being merely "invalid" because of a bad address or some other defect). They stressed that they wouldn't be in business for long if they didn't have their own methods for weeding out employees who present bogus signatures.
"This is a self-policing business," Grant notes. "If these professional circulators were having a fraud problem, they would fire the person responsible because it would ruin their reputation. And if you can't pay people by performance, you're not going to get anything."
Even one of the state's own witnesses, defending hourly pay as a better alternative, admitted that he gave his paid-by-the-hour circulators bonuses if they were more productive — which is another way of paying by the signature.
As for the fraudulent affidavits submitted by circulators in the 2008 election, state officials haven't been able to establish that the fraud extended to the petitions themselves in any consistent way. Just because a circulator cut corners in the paperwork or lied about his address didn't mean that the people who signed his petitions didn't truly support the initiative at hand.
"They put on virtually no evidence of abuse," says plaintiffs' attorney David Lane. "Where the petition circulators live shouldn't be an issue."
After many hours of testimony, U.S. District Judge Philip Brimmer found that "pay-per-signature compensation is no more likely than pay-per-hour compensation to induce fraudulent signature-gathering or to increase invalidity rates." The state had other options, he added, including a stronger enforcement effort of existing fraud laws, rather than dictating to petitioners how they could pay their workers. On June 11, he issued a preliminary injunction, lifting the ban on paying circulators by the signature.
Some of the thornier issues raised by the new law will have to wait until trial to get resolved. Can Colorado require circulators to be state residents? (Lane doesn't think so: "This could be another one to go up to the Supreme Court.") Can it require them to stick around to be deposed? ("I don't think the residency requirement probably survives," says Grueskin, "but the requirement that you make yourself available to testify will, and that's more important.") Can it make them take a government-run indoctrination course on proper petitioning, a twist reminiscent of the "scarlet letter" ID badge requirement that another federal court threw out as a hindrance to free speech? ("That has to go," says Grant. "That's so offensive.")
But right now Caldara is just relieved to be able to pay his circulators by the signature. Although he only has a few weeks left, he might still make the ballot with his "right to health care choice" initiative — even though Grueskin is also challenging the measure in Colorado's Supreme Court, on behalf of the AARP and other defenders of the federal health-care legislation.
"I am thrilled," Caldara says. "I can now afford to hire petition gatherers and get this on the ballot."
The circulators' prices have dropped somewhat in the wake of Brimmer's injunction, but not as much as he'd hoped.
"Even this delay has cost me a ton of money," the Independence Institute chief sighs. "It's going to cost me fifty grand, and we're squeezed for time."
For a guy who's supposed to be hunkered in a bunker somewhere, shunning reporters and ducking subpoenas, Douglas Bruce isn't hard to find. He's on the radio, denouncing the tactics of his arch-nemesis, Mark Grueskin. He's on the Internet, posting his j'accuse memo to John Suthers, blasting the Colorado Attorney General for seeking a contempt citation against Bruce without even consulting him first: "I have a right to attend my own lynching."
And he answers his phone on the second ring.
"They're trying to tie me to the petitions, and I'm not going to let them manipulate me like that," he says. "This claim that I was subpoenaed 29 times isn't true. I was on vacation."
It's a sign of the times, perhaps, that Bruce is working so strenuously to deny any direct involvement in three anti-tax initiatives, known as Amendments 60 and 61 and Proposition 101. The father of TABOR, the 1992 tax limitation amendment that changed the way government operates in Colorado, has become such a divisive figure in the state's petition wars that the proponents of 60-61-101 don't want to talk about him — and Bruce really doesn't want to talk about them, either.
Bruce has clashed repeatedly with local and state officials over his attempts to rein in taxes with one ballot initiative after another. He's spent countless hours in legislative testimony and court battles, trying to keep politicians from easing the stranglehold TABOR has on government spending. He was once arrested by two state troopers for circulating petitions on a public sidewalk outside the Colorado State Fair. Last year he was acquitted by a jury on a charge of trespassing in a Costco parking lot, where he was gathering signatures for a tax-limiting issue in Colorado Springs. ("The star witness admitted that I was never asked to leave," he notes.)
The measure passed, but city officials then set about interpreting the new restrictions on city revenues in ways Bruce considered illegal, with the aid of a $300-an-hour outside attorney: Mark Grueskin, whose history of challenging Bruce's work goes back to the first TABOR campaign.
"He's found his niche in the law," Bruce says. "All the petition-haters know they can go to Grueskin — unless the petitions are by labor union goons. The guy's just a one-man wrecking crew."
Grueskin denies that he's opposed to the petition process in principle, or even that he's particularly anti-Bruce. "I don't really think about him that often," he says. "Half my clients oppose initiatives. Half of them support initiatives. Every group that opposes one also wants to hold out the opportunity to put something on the ballot."
The latest clash between Bruce and Grueskin was triggered by the ease with which 60, 61 and 101 made it onto this year's ballot, with little information about who was behind the measures. Amendment 60 would reduce property tax rates and require school districts to reduce their dependence on property taxes, drawing more of their revenue from the state budget. Amendment 61 would prohibit "future borrowing" in any form by state government. Proposition 101 would drastically reduce auto registration fees and taxes, telecommunication charges and, over several years, the state income tax.
To many groups with a strong interest in the current government-financing arrangements, from bond dealers to teachers' unions, the triple whammy proposed by the measures loomed as an end-of-the-world scenario. Coloradans for Responsible Reform, the coalition of chamber-of-commerce types that Grueskin represents, claims that the measures could cost the state 70,000 jobs, severely hamper infrastructure repairs, drive small businesses into bankruptcy and demolish the public school system.
"The passage of any of the three would be a disaster, and the passage of all three would be a tsunami," one local attorney told The Bond Buyer.
The opponents quickly realized there was no point in challenging the validity of the petitions: The circulators had collected a total of close to half a million signatures for the three measures, far more than needed to make the ballot. But at least some of the petitions had been collected by pay-per-signature contractors. Who had paid for them? Where were the required disclosure forms stating contributions and expenditures?
Grueskin filed a campaign-finance complaint against the proponents, allowing him to depose them and present evidence at an administrative hearing. It soon became clear that there was more to the 60-61-101 campaign than its backers seemed to know —or would admit. Three of the six proponents stated they had allowed their names to be used but had little other involvement in the initiatives. Two said they'd received drafts of the initiatives they sponsored by e-mail from an anonymous source. Only one claimed to have written his initiative himself, based on "stuff other people had written."
The proponents claimed to have no knowledge of any money spent on printing petitions or gathering signatures. They didn't know who operated the official website promoting the three measures, www.cotaxreforms.com, or who paid for it. Several of them expressed no knowledge, and precious little curiosity, about the identity of the person who sent them initiative drafts and advice about how to proceed from an anonymous e-mail address. But one of the proponents, Michelle Northrup, apparently annoyed at the barrage of advice, finally identified the mysterious behind-the-scenes player.
Douglas Bruce had called her several weeks before, Northrup testified, and told her he was sending her a motion to quash the subpoena from Grueskin. The motion then arrived, from the same e-mail address that had been the source of other dispatches.
Bruce had already been outed, to some extent, by Colorado Springs Gazette reporter (and former Westword writer) Eileen Welsome, who discovered that eight of the professional petition circulators had stayed at a rental property Bruce owned. Grueskin then attempted to compel Bruce to appear and testify. Bruce claims he was out of town during much of the hoopla and was never properly served.
The hearing, he adds, was improper from the start — and should never have turned into an inquisition about his alleged role. "I have a right to be a private citizen without going to court over what I believe," he says. "They were just trying to tar me with the petitions and tar the petitions with me. It's almost an admission that they can't find anything to criticize about the proposals, so they say, 'This amendment is supported by Jeffrey Dahmer, Charles Manson and Douglas Bruce.'
"It's beyond stupid. This case is not about campaign law. It's about smearing people. I was not on the grassy knoll in Dallas in '63."
Grueskin acknowledges that state law doesn't prohibit an initiative backer from operating through "straw" proponents. "There's nothing wrong with individuals putting their name on an initiative, even if they didn't actually write it," he says. "The problem comes in imposing Maxwell Smart's Cone of Silence on contributions and expenditures. There was a design here to evade the reporting requirements, and there's no reasonable explanation for this scheme. I can only assume that there are sources of money that would discredit their cause, or expenditures that would also discredit the cause."
Calling the proponents' lack of knowledge a case of "willful ignorance," last month administrative law judge Robert Spencer fined three of the backers $2,000 each for failing to register as issue committees under state law. Spencer also ordered them to disclose the sources of their funding, having found (in absentia) that Douglas Bruce was among the "group or persons advocating each Initiative."
Grueskin expressed satisfaction with the ruling. "The order that they come clean about what was spent and who donated to their effort is incredibly important," he says. "It will finally tell people in Colorado who's behind this, in what denomination."
The peculiar evasions of the 60-61-101 campaign aside, initiative proponents are generally under greater scrutiny than many candidates. A series of federal court decisions have chipped away at campaign finance disclosure requirements for candidates — and lifted strict limits on political spending by corporations and unions — but Colorado initiative supporters must register as issue committees once they've spent a mere $200 on a campaign. That bothers Paul Grant, who remembers the harassment that his petitioners for trucking deregulation faced from Teamsters. The desire of lightning rods like Bruce to do their politicking anonymously, he argues, is something that goes back to the days of Thomas Paine and Common Sense.
"In the 1780s, it was common to write politically charged discussions under pen names," Grant notes. "The founders of this nation recognized that when you focus a political argument on who its proponents are, then you open it up to personal attacks rather than discussing the merit of the ideas."
If he had his way, the law requiring issue committee disclosures would be history, too. "All these requirements for disclosure — look, people who work in state government don't want to be seen contributing to a tax-relief measure," he says. "There are repercussions. These requirements end up suppressing political activity."
Two weeks ago, a Denver judge issued the contempt citation AG Suthers was seeking against Bruce for his avoidance of the hearings. Bruce has vowed to fight the case vigorously, telling Suthers via e-mail, "I have done nothing wrong, as you will soon find out to your deep and very public embarrassment."
He has also accused Suthers of "conspiring" with the secretary of state "illegally to burn up 20 percent of the signature time for the three pro-taxpayer petitions you have."
The leaders of the 60-61-101 campaign are now trying to shift voter attention to the finances of the opposition. Through the end of May, Coloradans for Responsible Reform and other issue committees had raised nearly a million dollars to fight the measures, with the largest single contribution, $250,000, coming from the Metro Denver Chamber of Commerce. Other top donors include the Colorado Municipal Bond Dealers Association ($100,000), the Colorado Contractors Association ($170,000) and various unions, financial service groups and quasi-governmental organizations.
"It's a typical group of special interests who are making money off government debt," says Natalie Menten, the campaign coordinator for the three initiatives. "I'm not surprised at the amount of money they're going to throw at this. What's especially bothersome to me are the county associations and municipal leagues. They're not opening their books to me, so as far as I know, they're funneling tax money to defeat this."
Menten, who was involved in the successful repeal of the grocery sales tax in Lakewood in 2008, acknowledges that her group can't possibly match the spending the other side has available for its "overblown scare tactics." Certainly, the fliers and bumperstickers the group will be distributing to promote the measures won't attract nearly the amount of media coverage that Bruce's alleged involvement has already received. But that doesn't bother her.
"It's shocking how much news this has gotten," she says. "When I talk to people who are not political junkies, they don't think [Bruce's role] is any big deal at all."
So what is Bruce's current involvement in the campaign?
"As far as I know, none," Menten says.
With only four months to go until the November election, only four citizen's initiatives have made it onto the 2010 state ballot: the anti-tax measures and a perpetual favorite seeking a legal declaration that "personhood" begins in the womb. Caldara, Tvert and others may yet get their petitions done, but the total will still be much smaller than the pile of ballot questions facing Colorado voters two years ago.
Some petition proponents blame HB 1326 for the dropoff, saying that the new law is already having a chilling effect on free speech. But Caldara suggests that the obstacles to citizen's initiatives in Colorado go well beyond any single piece of legislation. They have to do with the rising legal costs of enduring a gauntlet of challenges from bureaucrats, entrenched private interests and skillful hired guns — a process he calls "getting Grueskinned."
"My goal in life is to help Mark Grueskin put his kids through college," he says drily. "The left is much better at tangling folks up with litigation. We don't have anybody like that on the Republican side; maybe we should. He's been very effective. He keeps throwing things against the wall until something sticks, and our Supreme Court justices are often just looking for something they can use."
In 2005, Caldara led the charge against Referendum C, the legislature's key maneuver to get out from under TABOR's spending limits. He ended up in a legal wrangle, with Grueskin on the other side, that cost the Independence Institute $80,000 — and, perhaps, the election.
"It took up all of our time and energy, which was the purpose," Caldara says. "We did win the case — three days after the election. I spent eight hours on the witness stand in the middle of one of the most important elections for us in the last decade. That's legal harassment."
Grueskin sees the drop in the number of citizen's initiatives this year as an encouraging sign that more interest groups are willing to work with the legislature to achieve reforms, avoiding the costly petition route. "I don't think it suggests anything is broken," he says. "Just the opposite. A lot of these initiatives are poker chips in the legislative process. In many cases, maybe there was never a serious intention to put them on the ballot."
Dozens of initiatives get filed with the Secretary of State's office every election season, prompting reporters to predict a "flood" of ballot measures. But, Grueskin points out, few of those measures make it past the early stages, often because the proponents don't bother to take them to the next level. They are "vanity" issues, drawn up to impress someone or to use as leverage in negotiations with lawmakers and lobbyists.
"Colorado is the easiest state for getting on the ballot," he says, "but it still costs a quarter of a million dollars, even if you're using pay-per-signature. That's a lot of money, particularly when the economy is down."
Despite the injunction Caldara's group obtained against HB 1326, the barriers to citizen initiatives keep growing. This year legislators passed yet another law — tightening the disclosure requirements for issue committees supporting or opposing statewide ballot measures — aimed at "purposefully anonymous interests attempting to influence the outcome of the election." To Bruce, the new law, like 1326, is just one more attack on the right to petition by an autocratic legislature.
"They must figure that if someone voted for them, they're so stupid that they don't deserve the right to vote," he says. "The landscape is littered with these attempts. People need to realize that no petition ever changed anything. It just puts the issue in front of the voters."
But getting your petitions transformed into an actual question on the ballot is more than half the battle. You can't win if you're not there. Just ask Tom Wiens, who dropped out of the Republican race for U.S. Senate this year amid procedural problems with the company circulating his petitions. Or ask Caldara, who says that hiring the right circulators and paying them properly is crucial.
"This is an art, not a science," he says. "Very few people can actually get it done. Everybody who thinks it's easy to change the state constitution are people who haven't tried."
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