Louis Schroeder came to the State Capitol on Friday to attend a review hearing on a ballot initiative he authored that aims to radically reduce Colorado property taxes. Schroeder and four staff members from the government’s Legislative Council and Legal Services offices sat around a long table in a narrow room for more than an hour, considering a 10-page report staffers had prepared on various legal points.
The initiative overlaps with other laws, they said, for example, and may override or undercut them. In addition to its stated reductions, it will also surely limit public funding in myriad other ways. A red light glowed on the table to remind all parties that the conversation was being recorded, as if it mattered.
Although Schroeder nodded, listened courteously, answered questions and offered opinions, he made no significant concessions. He likes his initiative the way it is. He’s not changing it, and he doesn’t have to: What goes on in the hearing room stays in the hearing room. No one else in the process will look at this substantive report. Schroeder’s “Colorado Ballot Proposal 2009-2010 #7” will now sail toward minimal review at the state’s Title Board hearing, and then, outfitted with enough supporting signatures from citizens, will land on your amazingly expanding Colorado ballot in the next election.
In light of the list of lawsuits lining up to challenge the constitutionality of many recently passed initiatives, you would think the language of citizen ballot proposals would draw more scrutiny. But the process prevents that. Gatekeeping is intentionally kept to a minimum. Voters alone decide on the merits — constitutional and otherwise — of the state’s ballots.
“We’re here entirely to aid [the ballot initiative authors], to learn their intent and offer suggestions,” said one of the Legal Services staff attorneys after the hearing. “That’s our sole mission as laid out by the state statutes … The Title Board doesn’t look at our reports.”
Solicitor General Dan Domenico, the attorney general’s representative at Colorado’s growing number of ballot initiative Title Board hearings, fully agrees. “Oh no, I have no idea what goes on in those [review and comment] sessions. All of that is for initiative proponents. I never look at any of that,” he admits.
“I go in pretty much cold. I read the initiative maybe just before the hearing and base my analysis on what happens during the hearing. I have an old file of initiatives I bring with me that I can draw on if questions come up. [The Title Board hearing] is not a substantive review — at all. We’re extremely limited.”
On the matter of the constitutionality of initiatives, say, or their legal or legislative ramifications, Domenico said his office doesn’t consider any of that at any point before an initiative is passed. “That’s not the mandate,” he said. “The [Title Board] is not an effective check,” he said, laughing. “But we have to deal with the consequences. I wish it were.”
In addition to Domenico, the Title Board includes Deputy Secretary of State Bill Hobbes and a staffer from Legal Services, all of whom at the hearing focus exclusively on answering two questions: Does the initiative under review restrict itself to a single issue? And does the “title” — the short description that will appear on the ballot — accurately describe the contents of the initiative?
The idea is to prevent initiative authors from folding topics together so that, in effect, they would force voters who want to support one part of an initiative to vote for that part as well as something else, whether knowingly or not. Authors also can’t clumsily muddy the initiative topic or write it to intentionally confuse voters, who might think they’re voting for stricter pollution laws, for example, only to discover the opposite.
In other words, as long as you stick to a single subject and write clearly, you can propose pretty much anything.
“Yep,” said Rich Coolidge, spokesperson for the secretary of state’s office. “It’s a citizen-initiated process. It’s for the voters to judge [in deciding] to accept or reject the proposals.”
Many analysts of ballot initiatives don’t consider the state, much less state lawyers, as an integral or even desirable part of the initiative review process. Rather, the requirement to secure the right amount of citizen signatures to place an initiative onto the ballot is what matters — as well as the vote itself, the theory being that in both cases it’s the citizens directly who are deciding to advance initiatives and make them laws.
It’s not a perfect system, said Elena Nunez, program director at Common Cause, a citizen advocacy organization. “But we think it works. It gives citizens the opportunity to make changes and reforms that legislators just won’t touch, like campaign finance reform, for example … Historically, voters are good judges. They toss aside bad initiatives all the time.”
Nunez said the Colorado review process may be lean but it’s a process at least. “The comments Legislative Council provides are very thorough and helpful, 10 and 20 pages of comments. Those are great.”
But does the lack of serious review render Colorado a target for special interest groups, carpet-bagging organizations that seek to place laws on the books somewhere, anywhere, that they can use to build momentum for their cause?
Although research has downplayed the role of special interests, it hasn’t fully taken into account Colorado’s recent explosion in the initiative process.
In the 1990s, for example, when the present wave of ballot initiative popularity began, the national Christian Coalition and other religious right organizations poured $387,000 into the state’s so-called parental rights initiative campaign.
Four years earlier, the Christian Coalition backed a Colorado initiative that would have prohibited the state from adopting anti-discrimination laws for gays and lesbians.
There are presently 10 proposed initiatives in the state docket for 2009-10. That number is likely to grow quickly in the next few weeks so that Title Board hearings can be set and signatures collected in time to make the ballot.