Gessler goes after Buescher with direct-democracy cudgel

Denver attorney and state Republican insider Scott Gessler appears to be building his campaign for secretary of state on opposition to ballot-initiative reform. It’s a move that positions him as a populist champion of citizen lawmaking at a time when broad consensus has built among lawmakers and analysts in favor of reining in the state’s famously loose initiative process.

But the “man of the people” strategy doesn’t quite square with Gessler’s history, most recently using a ballot-initiative shell organization to attack a political foe and being embroiled in the infamous Trailhead Group campaign-finance scandal.

Furthering his partisan ax-wielding, Gessler sent a fiery email to supporters this week, blasting proponents of initiative reform as politicizing the initiative process and squelching citizen rights.

To analysts of the debate over the initiative process, Gessler’s is a familiar tack, one that pits lawmakers against citizens. But proponents of reform say it won’t work this time, that they’re ready for the fight — that initiative fraud and abuse and citizen exhaustion with ballot expansion has reached a tipping point in Colorado and that scare tactics will fail to persuade.

To the ramparts against House Bill 1326
Attorney Gessler’s email is a rough-and-tumble rant against lawyers and a blunt political weapon.

He begins by explaining that he’s running for office in order “to make positive changes” but then dedicates the remaining eight paragraphs to arguments in favor of the status quo. Piling up colloquialisms and leaving typos, Gessler targets House Bill 1326, reform legislation passed this session and sponsored by House Speaker Terrance Carroll, calling it “damaging,” “unfair,” “draconian” and a “lawyer’s dream come true.”

Colorado voters deserve someone who will stand up for voters, and make shore [sic] we in Colorado keep the freedom to propose legislation, without legal harassment. Secretary Beuscher [sic] has been in office for four months, and one of his most significant acts is to support this assault on our right to initiative.

Gessler also stretches his interpretation of the bill into the realm of bad faith.

HB 1326… games the system in favor of challengers by changing normal court rules. If a signature collector doesn’t show up in court every person who signed the petition would have his or her name involuntarily struck.

Gessler didn’t return calls for comment to clarify his view of the legislature’s reform efforts.

Mark Grueskin, however, one of the attorneys who advised the drafting of the bill, takes issue with Gessler’s interpretation. He wrote in an email:

Under the bill, circulators don’t have to come to court. They can also testify by telephone, video deposition, or anything else that’s approved in the Rules of Civil Procedure.

Only circulators who have been accused of fraud are required to show up to testify… [Y]ou have to have evidence of the fraud before you file a challenge … [a]nd the “fraud” covered is very specific: forgery; paying signers to sign the petition; providing a false circulator name or address; and using an unnamed third party as the actual circulator.

Lynea Hansen, a spokeswoman for Citizens for Integrity, the coalition that helped design and pass HB 1326, said support for the bill was wide and deep, that the drafters pulled together groups from across the political spectrum to provide input, including government watchdog, environmentalist and business groups. She said she believes the guidelines mandated by the law are anything but draconian. In fact, she says, most responsible groups already function according to the guidelines, which were modeled on reforms developed in Oregon, the most active ballot-initiative state in the union.

“Oregon is at the forefront of increasing the integrity of the initiative process. We’re not reinventing the wheel with HB 1326.”

Untipping a tipping point
The instances of unadorned fraud that characterized the process last year and the rocky law that came as a result, opened up a window of opportunity for reformers.

State Rep. Lois Court, a Denver Democrat, co-sponsor of HB 1326 and a longtime student of the initiative process in the state, said she’s proud that in addition to addressing petition fraud, the bill also works to raise voter consciousness, which she says is essential to strengthening the initiative system.

Court added language that would require all petitions clearly notify citizens that by signing they are acknowledging that they want to see the proposition end up on the ballot for a vote. She also made sure that voting ballots underline which initiatives will result in constitutional amendments and which will result in statutory law, which is much more flexible and the way most legislation is written and passed.

“Thing is, 99 percent of the people aren’t thinking ‘Hey let’s update this initiative system!'” Court said. “People have lives. But we can’t improve the process without the citizens. That’s the whole point.”

Court says this reality results in a Catch 22.

“We want to move away from the trend where we change the constitution every time we simply want to write new laws. But we have to ask the citizens to change the constitution so we can stop changing the constitution.”

What’s more, the increasing number of initiatives stretching Colorado voting ballots, she says, works against change.

“There’s ballot fatigue. It’s ironic because, with Referendum O last year, voters were just saying no, which is what happens with ballot fatigue. But voting no on [Referendum] O prevented change that would have ended ballot expansion.”

The return of Referendum O
Whether he knows it or not, Gessler isn’t just battling against HB 1326. Hansen says that members of the group that put together Referendum O last year are gearing up for a new and improved version.

“There’s a feeling that now is the time, that voters will be on board in large majorities after last year’s debacle.”

The 2008 Colorado ballot was the longest in the country and included 14 citizen initiatives. Lawsuits have followed from both the petition process and from the law made as a result of the initiatives.

Jennie Drage Bowser, an elections expert with the National Conference of State Legislatures and a member of a special Initiative and Referendum task force put together by the NCSL in 2002, said it was a surprise to many observers when Referendum O failed to pass.

The main thrust of the referendum was again to steer citizens toward statutory change and away from constitutional change. It called for a “super majority” dispersed through every district in the state and for an early open-public commentary period to accompany any proposed constitutional amendments. The referendum required only a “simple majority” of votes to pass statutory law, thus encouraging statutory change over constitutional change.

“The proposals included in Ref O were in line with a lot of expert recommendation. It wasn’t radical,” Bowser said.

She added that a lot of analysts now propose establishing citizen review committees. Putting citizens in charge of assessing propositions and providing early reviews and comments diminishes the antagonisms — real and imagined — that exist between lawmakers and the people, tensions that are fanned for effect in campaigns like the one Gessler seems intent on running.

Just as important, Bowser said, is that the citizen committees would create public events, drawing the media and placing the players involved into the public eye.

“Suddenly you have a venue where there’s give and take, where proponents and opponents voice and defend their positions. That increases transparency.”

Bowser said those kind of forums force the important questions into the open: “Who’s really behind the proposed law?” for example. And “Why do we need it?”

That openness and required citizen involvement takes the onus off of lawmakers and may undercut expensive advertising campaigns that draw national and often anonymous interest groups to the state.

The new-style forums are key because citizens are the ones basically forced to answer those questions — for themselves and for each other, Bowser said.