Something seems a bit incongruent about the Blue Wave that hit Colorado on election day and swept Democrats into every corner of Colorado state government. The very same voters who voted like Californians when it came to candidates, voted like Coloradans when it came to issues.
They voted down a progressive income tax plan for “education.” They killed a statewide sales tax and debt increase for roads and transit. They rejected a ban on fracking.
So, on one hand they voted for hard-edged progressives, including the freshman lady legislators who this week made clear they don’t want to be called “freshMAN” because they say it’s sexist (one of their first bills is to rename “manhole cover” to “person-hole cover”). On the other hand, they voted for fiscal restraint.
One reason for this seeming dichotomy might be that we voters expect to be asked, directly at the ballot box, on the important issues. Coloradans are becoming more socially liberal, and comfortable voting for liberals, knowing that big questions of tax, debt, and constitutional changes must first be run by us. It’s why the Taxpayer’s Bill of Rights (TABOR) remains so popular even after a quarter century assault from the taxation-without-consent crowd.
We also know that we can override lawmakers via our citizen’s initiative. We the people have no problem doing what our elected officials refuse to do. It was the people of Colorado, not the legislature, who directly gave women the right to vote, legalized marijuana, limited terms of office, passed transparency laws and demanded TABOR.
But there is another mechanism for direct control over the legislature, although it hasn’t been used since 1932.
We the people of Colorado also have the right to veto any bill the legislature passes into law.
It’s called a referendum. Unlike a citizen’s initiative, that can change state law, a referendum invalidates a new law. (Oddly when the legislature refers a constitutional change to the people for approval, that is also called a “referendum,” but that’s not what I’m talking about here.)
If we don’t like a bill they pass, we have 90 days from the end of the legislative session (early May) to gather some 125,000 valid signatures to force a public vote on it. The voters can then reject that new law like Gary Busey at a single’s bar and make like the bill never passed. If you’re old enough to remember the old “Ten Commandments” movie, the pharaoh commands that Moses’ name be stricken from all the books. It’s kinda of like that, with the people playing pharaoh.
So why hasn’t the referendum been used since then? Because we’ve loved all the laws they’ve passed for the last 86 years?
It will shock you to know that the legislature found a way around being challenged by us, the voting rabble. The scheme goes like this – if they add the so-called “safety clause” to the end of any bill, it becomes immune from removal via citizen referendum.
This “safety clause” says the bill is so incredibly important, it’s needed for the “for the immediate preservation of the public peace, health, and safety.” Our state constitution says those are the magic words needed to protect the bill from being directly challenged by the people.
So, after 1932 the “safety clause” was added to the end of every single bill.
Many legislators didn’t even know it was an option NOT to include the clause. So, bills like naming the official state fish stated it was needed for the “immediate preservation of the public peace, health, and safety,” as if mass violence was breaking out all the state because of confusion over which fish best represents Colorado. House Bill 94-1164 then restored public peace by naming the green cutthroat trout our official state fish.
To the legislature’s credit, the safety clause is being attached to fewer and fewer bills since 1997. But still 43 percent of the bills that Gov. John Hickenlooper signed this year had them.
Lawmakers should stop fearing a rebuke of their pet bills by the folks they claim they represent. They should stop chickening out and slapping the safety clause on their bills, especially controversial bills, where voters may really want a say.
Jon Caldara is president of the Independence Institute, a free market think tank in Denver.