The future of controversial so-called clean government Amendment 54 has been fast-tracked by the Colorado Supreme Court. This week the Court directed attorneys to submit records by next Friday, Sept. 4. Court arguments will begin in the fall.
The amendment, described by its authors as a means to combat pay-to-play corruption in the politics of government contracting, passed as a Colorado ballot initiative last year. Its far-reaching effects, some intended and just as many perhaps unintended, began to play out immediately after the new year. Campaign contributions in the state fell off as donors and their attorneys guessed at the full scope of the law the amendment would create. Lawsuits erupted. In June, a Denver judge enjoined the amendment, putting a temporary end to its authority. As expected, the attorney general’s office appealed that decision to the state Supreme Court.
“There’s a perceived obligation to get appellate clarity when the voters have adopted a law and it has been declared unconstitutional,” said Mark Grueskin, one of the high-powered attorneys who represented plaintiffs fighting the amendment. “There’s just added importance to getting the Supreme Court to weigh in and say there is or is not a problem.”
Comprehensive solution versus masked attack
The initiative was sponsored by the state’s arch conservative Independence Institute and pushed by spokesman Tom Lucero, a University of Colorado regent and one of the Republican candidates lined up to challenge Fourth District Democratic U.S. Rep. Betsy Markey in 2010.
Supporters described the initiative as a way to increase transparency. The campaign to pass the initiative rode the wave of pay-to-play contracting scandals played out in recent years in national news and it anticipated the spectacular if unsurprising revelations that came out of Illinois, as government investigators caught Gov. Rod Blagojevic in every manner of selling influence there, auctioning off work for the state, including Pres. Obama’s vacant senate seat, to the highest bidders.
But as Judge Catherine Lemon argued in Denver in June as she announced her intention to enjoin the amendment, there has been no corruption of that sort in Colorado, and so to presume it and effectively levy penalties in advance based on such presumption, is unconstitutional. She agreed with plaintiff attorneys that, in drafting the amendment, the authors created a toxic mixture of harsh penalties and murky language, resulting in loose difficult to interpret law that works to sweepingly chill political expression.
In response to questions about the sweeping and confusing language of the amendment, supporters say that complaint is overplayed.
If the language of the amendment is vague, it’s only because the nature of the corruption it seeks to address is complex, Lucero told the Colorado Independent last spring. He said complaints about the language were a “red herring” and that the attorney general’s office agreed with amendment supporters that it did not infringe free expression.
Among the controversial aspects of the law created by the amendment, is its effort to bar campaign contributions of all sorts not only from people working under a government contract but also from members of their immediate families.
Grueskin argued that the amendment is unconstitutional and also revealing. He represented labor unions in the suit, which he believes the amendment specifically targeted to undercut and prevent from engaging in political expression. In a recent interview with the Colorado Independent, he called Amendment 54 a “three dollar bill,” an initiative queerly written to mask its true intention.
In court, Grueskin cited case law that established campaign donating as political speech, a powerful Constitutional way to make political positions known and to support them.
“This [amendment] was designed to prevent the political expression of anyone with a state contract,” he told the Colorado independent.
Amendment 54 views the collective-bargaining agreements that define unions as no-bid contracts.
“This was designed to gag unions, to silence certain political speech [the authors] didn’t want to hear. But Judge Lemon said that that is not a prerogative the state has. She said that silencing unwanted political speech is not a choice voters have– voters or legislators or anyone. Contributing to a campaign is valid expression.”
In the world that Amendment 54 creates, said Grueskin, “the cost of doing business as a sole-source contractor is political silence.”
The title, the injunction, the players
This is how the title of the initiative read on the November ballot, where it passed with 51 percent of the vote.
An amendment to the Colorado constitution concerning restrictions on campaign contributions, and, in connection therewith, prohibiting the holder of contracts totaling $100,000 or more, as indexed for inflation, awarded by state or local governments without competitive bidding (“sole source government contracts”), including certain collective bargaining agreements, from making a contribution for the benefit of a political party or candidate for elective office during the term of the contracts and for 2 years thereafter; disqualifying a person who makes a contribution in a ballot issue election from entering into a sole source government contract related to the ballot issue; and imposing liability and penalties on contract holders, certain of their owners, officers and directors, and government officials for violations of the amendment.
Even though the amendment at first was widely perceived by opponents as an attack on union political influence, it later riled groups across the political spectrum, especially as it went into effect. Members of liberal and conservative groups found their ability to influence public policy suddenly severely curtailed.
Plaintiffs in one of the suits against Amendment 54 included the University of Denver; Pat Hamill, president and CEO of Oakwood Homes and a member of the board of trustees at DU; Dan Ritchie, chancellor emeritus of the University and chairman and CEO of the Denver Center for the Performing Arts; Denver City Councilman Charlie Brown; and the Children’s Hospital.
A coalition of labor unions filed a separate suit against the amendment.
In arguing against the case before Judge Lemon, Grueskin was accompanied by Doug Friednash and former state Supreme Court Justice Jean Dubofsky. Maurie Knaizer represented the state.
“It’s obvious from the language of the amendment … that unions have had their rights to participate in the political process completely obliterated and not based on any conduct but simply because of their status as unions, simply because of who they are,” Judge Lemon stated at the hearing in June.