This year, one of the more controversial ballot measures is a proposed State Constitutional amendment to limit State Constitutional Amendments.  It has some superficial appeal: In some years past, a fair number of amendments have passed, and the State Constitution is supposed to be a foundational document, not just a compilation of what some people in a given year think are cool ideas. This year, a number of out-of-state environmental groups tried and failed to get anti-energy initiatives on the ballot, and Amendment 71 is in large part a response by the energy industry to that effort.

The measure has three main parts:

• New amendments would require 55% to pass
• Petitioners would need 2% of the registered voters in each State Senate district
• Old amendments would still only require 50% for repeal

While US State Constitutions have never been held in the same reverence as the US Constitution, I’m open to the idea that it’s too easy to get bad ideas on the ballot, and that in a given bad year, some of those ideas will end up being enshrined there.  Certainly an ongoing government-by-plebiscite is a dangerous way to govern.

But Amendment 71 is a bad idea whose time has not yet come.

Political power is a zero-sum game.  In theory, the citizens of Colorado have a number of options for checking the power of the state government.  They have the right to overturn laws at the ballot box.  They have the right to put new laws onto the ballot.  And they have the right to put Constitutional amendments on the ballot.

As will be the case, the state legislature has systematically moved to negate those checks.  Citizens may overturn only those laws that are not deemed to be for the public peace, health, and safety.  As a result, the legislature routinely adds the so-called “Safety Clause” to even mundane measures, in order to protect them.

[youtube]https://www.youtube.com/watch?v=b0aHx1mhCeY[/youtube]

Colorado also has no hold-harmless period for citizen-initiated statutory changes.  In effect, the state legislature can immediately overturn any statutory change with a simple majority vote.  Constitutional amendments, on the other hand, require a 2/3 vote in each house to be placed on the ballot for repeal.  This may explain why the Constitutional route is so popular.

But by considering this (potential) problem in isolation, the proponents are demonstrating political tunnel vision.

Amendment 71 would make it harder to rein in the state legislature, while doing nothing to prevent the legislature from imposing its will on the people.  It does nothing to limit the abuse of the Safety Clause, and it does nothing to create a hold-harmless period for citizen-initiated statutory changes.  It represents a staggering net shift in power towards those interests who have existing money and organizational ability to get measures on the ballot, and away from the citizenry’s ability to limit legislative power.

I know some of the people involved on the pro-71 side, and I don’t question their sincerity, only their judgment.  In 2008, when I was running for State House of Representatives, then-State Senator Greg Brophy and I met up at an issues forum sponsored by Hadassah.  On the ballot was Referendum O, a measure to tighten up the process for amending the State Constitution.  Greg was in favor then, and I opposed it, so while he’s a paid spokesman for the A71 group now, he comes by his support honestly, and is hardly “bought” as some have suggested.

But Greg, of all people, should know from his own experience how flawed his arguments are.  The State Constitution is no guarantor of our rights at all when the State or US Supreme Court willingly interprets it to benefit a political agenda.

Consider the 2013 gun law recalls.  Two Democrats – from what were drawn as safe Democratic seats – were recalled over the 2013 bills and replaced by Republicans.  A third from a competitive seat was at risk until she resigned to make sure that a Democrat could succeed her.

And yet.  After that, after the Democrats won back those seats and still lost control of the State Senate, after they nearly lost control of the State House, the laws remain on the books, and have survived court challenges.  The Democrats are bound and determined to ignore clear signals from the electorate that they’re on the wrong side of this issue, and have simply no real incentive not to pursue further changes as their electoral majorities allow.

Brophy himself declared from the well of the Senate, “I will not obey this law!”  That alone showed that he understood that the guarantor of our rights is not the Constitution or the courts but ourselves.

Much of the appeal on behalf of Amendment 71 has come to rural Republican voters, who rightly feel targeted by a number of bad Constitutional initiatives put on the ballot by Boulder and Denver liberals.  The argument is that, with the State Senate signature distribution requirement, they’ll be able to block bad ideas at the signature-gathering stage.  But when A71 proponents failed to meet their own standard, they didn’t fall short in the rural districts.  It was in some of the liberal college districts in Ft. Collins and Boulder, who have more registered voters and thus a higher signature threshold.  In all likelihood, A71 would do more to let those districts block ideas desired by the rest of the state than to keep them from imposing their bad ideas on us.

In a year when the Democrats have an excellent shot at taking back the State Senate, giving them control of the whole legislature and the governorship, it’s a terrible idea to limit the citizens’ potential checks on that government.