‘What if’ Doesn’t Pass Ethics Amendment Sniff Test

It is not clear where Colorado Supreme Court Justice Gregory Hobbs will come down in the case of the state’s embattled ethics reform amendment. But Hobbs asked the right questions Thursday at a hearing.

Hobbs wanted to know why those who challenge the amendment for being “broad as all outdoors” look at it with such a narrow focus. “You act like a gift ban is the only part of the amendment,” Hobbs told ex-state Supreme Court Justice Jean Dubofsky, who argued to have the ethics reform measure thrown out.

Maybe Hobbs’ observation won’t carry the day legally. But it sure carries the day rationally. Fears that stopping lobbyists from buying meals and giving free tickets to lawmakers will also keep cops’ kids from getting scholarships or injured firefighters from getting donations ought to be borne out in practice rather than theory.

The lobbyist-backed effort to dump the ethics reform amendment comes without a state ethics commission having rendered a single decision. The attack on the ballot measure called Amendment 41 continues to concern itself only with whacky scenarios, not actual events.

“It’s not simply the gift,” Hobbs reminded. “It’s the breach of public trust.”

The justices spent a lot of Thursday’s hearing trying to get each side to define public trust. Justice Nancy Rice phrased the question superbly:

“If I receive the Nobel Prize, I have not violated the public trust because…?” Rice asked, leaving the lawyers to fill in the blanks.

Arguing for the state, attorney Maurice Knaizer said winning the Nobel Prize didn’t violate the responsibility elected and appointed officials and government workers have to the people of Colorado.

Dubofsky said the money that comes with the Nobel Prize exceeds the annual $50 limit that Amendment 41 lets elected and appointed officials and government workers or their families receive from private individuals. The amendment bans all gifts from lobbyists.

If the law of common sense applied, it would seem to favor Knaizer.

To follow the logic of Justice Hobbs, the way the ethics amendment and its implementing legislation are written, you seem to need the presumption of a quid pro quo. In the case of the Nobel Prize, that would mean the person getting the prize money would do the bidding of the Nobel selection committee instead of his or her public job.

Opponents of ethics reform lack any proof that this has happened. They deal strictly in what-ifs.

What if someone saw a lawmaker eating lunch or dinner with a lobbyist?

They might think the lobbyist was paying for the meal.

What if a planning commissioner’s children got college scholarships?

People might think she favored the people who paid her kids’ way to school.

Forget that you can’t control what people think.

Forget that no ethics commission has ruled on either of these circumstances or any other.

“Anything you do might be the subject of a complaint,” Dubofsky warned. A planning department soliciting information from a developer, “that would violate Amendment 41.”

Providing legislators with information that lobbyists paid to collect would also violate 41, Dubofsky insisted.

Here’s a minimal standard for a court case: Prove it.

These absurd charges should not be accepted at face value. The mere threat of crazy or vindictive ethics complaints should not be enough to overturn reform approved by 63 percent of voters.

“Behavior at the Capitol has changed dramatically because of Amendment 41,” Dubofsky said, as if this was a terrible situation.

Later, outside the courthouse, car dealers’ lobbyist Tim Jackson gave an example. In a single day during the last state legislative session, said Jackson, he heard from a first-term Democratic representative and a first-term Republican senator. Both complained that they couldn’t get to know their colleagues because ethics reform forced the cancellation of lobbyist-sponsored receptions.

You wonder how an ethics commission would view those receptions. You continue to wonder because the ethics commission does not yet exist and has not made a single ruling or issued a single advisory.

But in Jackson’s sad tale, you wonder most about a pair of politicians who need parties to introduce themselves to other legislators. Feeling disconnected? Try walking around the floor of the House or the Senate shaking hands.

What if, what if, what if.

The refrain aims to deflect attention from the real purpose of the lawsuit challenging Amendment 41. It hopes to ensure that lobbyists can continue to do favors for legislators so that those legislators will continue to do what the lobbyists want.

“Culture change is a good thing,” said Jenny Flanagan of Colorado Common Cause, which initiated the ethics amendment. “I didn’t get free Rockies tickets; you shouldn’t get free Rockies tickets.”

Lobbyists can still go out to lunch with legislators. They just have to split the tab. No ethics commission ruling has stopped lobbyists from giving information to lawmakers. No ethics commission ruling has made eating at a buffet a conflict of interest. No ethics commission ruling has stripped a cop’s kid of a scholarship or taken charity from a hurt firefighter.

So far, the alleged injuries caused by Amendment 41 are either imagined or self-inflicted.

“Breach,” asked Justice Hobbs. “Doesn’t that mean betraying your duties based on the facts?”

Not if you can thwart ethics reform making up horror stories.

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Jim Spencer

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