Why You Should Vote No on 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. Yesterday, we posted "Why You Should Vote Yes for Amendment 71, to Raise the Bar on Amendments," featuring an interview with a proponent of the measure. Today, we 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.

Elena Nunez, executive director of Colorado Common Cause, is part of the Vote No on 71 coalition. Here, she shares her objections to the initiative and takes on assertions made by proponents.

The following transcription is supplemented by images from the Vote No on 71 Facebook page, as well as links and occasional insertions for reasons of fact-checking and clarification.

Westword: Why does your organization oppose Raise the Bar?

Elena Nunez: We believe Amendment 71 is an attempt to limit the power of the people to propose constitutional amendments. That's problematic for a couple of reasons. I think, taking a step back, it's important to remember that the initiative process is an important part of our government. The reason that we have it is so voters can propose reform when the legislature has a lack of political will or a conflict of interest. So many citizens' initiatives are advanced because the legislature is not taking action or is voting against the interests of the people.

That's also why the constitutional-amendment process is so important. The constitutional-amendment process allows us to put something into our founding document — and I think it's important to remember that only the people can make changes to the constitution. The legislature can suggest and refer measures, but it's up to the people to say whether or not something belongs in the constitution. So to make it so difficult and so onerous that's no longer an option is a direct attack on the power of the people.

What provisions in Amendment 71 make this process more difficult? And why do they make them more difficult?

The first provision is the one that requires that 2 percent of the registered voters in each senate district sign the petition. This is something that on its face often sounds okay, since everyone in the state should have a voice. We all agree, and I've never been part of a campaign where we didn't gather signatures throughout the state — because part of building a successful campaign is going out and making your case. But the bar is set so high by Amendment 71 that it will become nearly impossible for all but the wealthiest special interests to do this — and there's a couple of reasons why.

In the current system, you know you have to gather about 100,000 signatures, because that's 5 percent of the vote cast for the secretary of state. And so you track as you're going along how many signatures are coming in and what your validity looks like — and that's how you know whether or not you're on track. What Amendment 71 requires is that you do that in every district throughout the state, and that makes it much more expensive and much more difficult. I would actually point people to the analysis that was done and posted on Complete Colorado, which found that even the proponents of Amendment 71, who have made a big show of getting a statewide measure qualified through a statewide process, couldn't meet their own standard. There were several districts — somewhere between four and six — that didn't meet this 2 percent threshold.

So it's more expensive, but it's also anti-democratic, and here's why: Because it allows one senate district in the state to act as veto power over putting something on the ballot. Just imagine there's an area — it could be in Denver, could be in Colorado Springs, could be in Durango — that decides they don't like a measure. Or they could be the target of big-money interests who go out and tell people, "Don't sign this petition." Even if there are enough signatures gathered statewide and it's an issue of importance, that issue wouldn't make the ballot.

So that's the first piece, and why we have serious objections to the signature requirements. It's not about making the process better; it's about making the process more expensive.

The other piece, the super-majority vote process, is also a huge problem. That says to amend the constitution moving forward, you've got to have a 55 percent super-majority, which is contrary to the concept of majority rule. You could have a measure that has majority support throughout the state, but if you don't cross that 55 percent threshold, it won't become part of the constitution. And that's problematic because it will make it more difficult to propose new measures. But it's also more difficult — and I think this is one of the more insidious pieces of the Amendment 71 campaign — because it will have an impact on measures that are currently in the constitution.

It takes a simple majority to repeal something. But let's imagine for a second that a ballot measure is simply trying to rectify conflicting provisions — and this is something that proponents talk about a lot. You have TABOR [1992's Taxpayer's Bill of Rights], Gallagher [a 1982 property-tax amendment], Amendment 23 [a school-funding measure passed in 2000 that continues to stir controversy]: These are conflicting provisions that deal with how we spend and how we allocate taxes and how taxes are approved. If you have to put just one word into the constitution — one word, a comma, any sort of addition to the constitution in order to address the issue you want to — that then requires this super-majority vote threshold. Which means there's a great irony. The people who are supporting this say the constitution is cluttered. But they're making it impossible to actually resolve any of these conflicts by setting the bar so high. So for all of those reasons, we oppose Amendment 71.

One of the objections I've heard raised about Amendment 71 is that it will prevent local grassroots efforts from putting an amendment on the ballot because of the high cost of meeting its requirements. Proponents say those kinds of grassroots efforts aren't succeeding anyhow — that almost all the measures that make the ballot are backed by large, well-funded organizations. Is that the case?

I think it's funny that if proponents think it's too difficult for grassroots organizations to have a voice, their solution is to make it impossible. That doesn't really make sense. What I will say is that their argument shows something that all of us who oppose this see: It's already difficult to put something on the ballot — to qualify it and pass it. You need to gather 100,000 valid signatures in a relatively short period of time. And the act of doing that is difficult. It requires that you're able to raise money, that you're able to build a strong coalition. You have to have resources to do it, and if you just look at this year's ballot cycle, I think you'll see that for the campaigns that were successful, it did take significant resources. But what Raise the Bar is saying is that we should make this more difficult, which I think is the wrong direction.

If we can all agree that right now, it's hard for grassroots organizations to have a voice, then let's figure out how we can create a greater opportunity for those voices to be heard. Maybe it's changing the signature requirement. Maybe it's creating new opportunities for people to sign petitions online. I think there are a lot of things we can do to improve the process. But I don't think the answer is to make it more expensive and even further out of reach.

Look at the broad spectrum of groups [that oppose Amendment 71]. We don't all agree on everything. We're all over the spectrum. Many of us believe that if this is put into place, these organizations that already have to work hard to put something on the ballot will find it absolutely impossible. And I think that's where Amendment 71 gets it wrong. If we want to create a more inclusive and representative process, let's do that. Let's not make money a proxy for having a good idea, which is what Amendment 71 does.

You mentioned this year's ballot. Do you think there are some measures this year that are driving these efforts? Or proposals that proponents see as examples of why Raise the Bar is needed?

I think that's an interesting question. If you look at the money coming into the pro-campaign, oil and gas is putting a lot of the money into Raise the Bar that they had intended to fight local-control [anti-fracking] measures with. So, clearly, that's a factor.

Having said that, though, this isn't the first time we've seen political elites and wealthy special interests come together to try to limit the right of the initiative process. There was a measure in 1996 that voters rejected. There was another measure in 2008 that voters rejected. This is the third time in the last twenty years where we've seen a significant attempt to make it harder. And I think that's really what it's about. It's about giving the people a voice and having control, not over a particular measure — although I'm sure a lot of people supporting Amendment 71 would rather not see a lot of these proposals on the ballot. That's why they want to make it impossible for us to do that.

The Raise the Bar proponents also claim the measure isn't draconian — that it's modest compared to other states across the country. They say it's in the middle of the road. What's your response to that?

There are a couple of things to remember about that. First, Colorado is fortunate to have an initiative process, both statutory and constitutional, that allows people to propose and make changes in a way that's functional. Not every state does. So already we're ahead of the pack, and that's something we should be proud of. But I also think it's just untrue to say Colorado's system is easy. There are other states that give voters more time to circulate petitions, where the thresholds of the number of signatures you need to get are less burdensome. So to say this brings us in line — there are things we could do that could actually make the process more open. And we should be looking more in that direction than the other.

There are also complaints that some of the amendments that have been passed in Colorado put things into the constitution that don't really belong there. They argue that the constitution should be for measures that deal with broad, general areas of interest, as opposed to items that are economically specific, like the minimum-wage proposal. What would you say to people who feel there are a lot of ideas that should be dealt with statutorily, not put permanently into the constitution?

If Amendment 71 was a proposal to incentivize and protect statutory measures, Common Cause would happily support it. We think there are ways that you can protect statutes — by lowering the number of signatures required, by protecting voter-initiated statutes, where, if they're proposed and enacted, the legislature can't mess with them. In fact, those are some of the best ways to encourage statutes. But Amendment 71 goes in the other direction. They want to make it impossible for anyone to amend the constitution. And I think that's problematic.

More specifically, even if someone feels there are things in the constitution that could be addressed in statute, there's no protection in this thing to make that worth anyone's while — so we'd have to have some protection for initiated measures. Why would you run a ballot measure? Because the legislature won't take action. So there has to be protection in that area. And how are we ever going to address those things if the language of Amendment 71 makes it so difficult to change existing constitutional provisions?

Let me use the example of campaign-finance reform, which is something we put into the constitution in 2002 after the legislature gutted the initiated statute we'd passed. [Click to learn more about the measure, known as Amendment 27.] We couldn't move it all back into statute. But if there were a protection for statutes, you could imagine there being some framework within the constitution that would set out broad provisions and then details could be moved. But under Amendment 71, the bar is so high, that would be completely out of reach. And that's one of probably a dozen examples of things where we could have a conversation about how to move these things into statute — but Amendment 71 would take those tools off the table.

The other thing I would say is, the people are the only ones who have the ability to amend the Colorado constitution — and that's a responsibility they take seriously. If you look at the history of the initiative process, of all the constitutional amendments that have been proposed by voters, less than a third have actually made it into the constitution. That shows voters are pretty discerning about what belongs and what doesn't.

If Raise the Bar is passed, do you foresee that during the 2020 election, voters might see no amendments on the ballot?

It's hard to say. What I will say is, the proponents of Amendment 71, who claimed to follow the standards they wanted others to, spent nearly $1 million on signatures — two or three times what a lot of other campaigns do. And they weren't able to reach their own standard. So if this were in place moving forward, I think the cost of a ballot measure would be so high that the only ones that would move forward would be ones that have the backing of the wealthiest special interests in the country — and I think the people would have a really hard time addressing the issues they want to address.

Unfortunately, that's the goal of Amendment 71. It's not to create a more inclusive process. It's not to create a better process. It's to take the process and put it on the shelf, out of the hands of the people of Colorado.

Do you think this proposal is more difficult to oppose from a campaign standpoint because it's so complicated? Have you found it difficult to explain what Amendment 71 is supposed to do and why it would be a bad thing?

I think voters in Colorado, because we have such a robust initiative process, are used to weighing in on these issues. And I think they understand it's a power they hold that's important. It may not be as top-of-mind to the average voters as some of the other issues on the ballot. But what it comes down to is that voters appreciate the power that they have to amend the constitution, and we're hopeful they'll be skeptical of political elites and wealthy special interests working to take that power away from them.

Do you feel optimistic that Amendment 71 will be defeated?

Any time you see a lot of the state's politicians and special interests come together to try and sell reform, voters are skeptical. The Amendment 71 campaign is spending a lot of money to try and sell this as something that's positive. But I think there is a skepticism, and we're hopeful that through the broad range of organizations that are opposing the amendment, left, right and center, voters will have the information they need to make the right decision on Amendment 71.