It hardly bears reminding that the recently adjourned legislative session marked many key successes for the Democrat majority in the Colorado General Assembly. But fear not, for Coloradans are constitutionally guaranteed the right to approve or reject laws passed by the legislature…sometimes.
The ability of Coloradans to vote on any particular piece of legislation is dictated by the “safety clause.” Tucked away at the end of a bill, the safety clause represents a determination by lawmakers that the bill is “necessary for the immediate preservation of the public peace, health, or safety,” and is therefore not subject to a referendum—a vote of the people.
History reveals that the safety clause has long been a favorite and effective tool for Colorado lawmakers to protect their bills from the possibility of voter scrutiny.
In 1910, Coloradans voted to adopt the Colorado Initiative and Referendum Rights Amendment, also known as Referendum 3, to the Colorado Constitution. This amendment reserved the right of the people to vote on legislation via the referendum process, and this right is why unpopular legislation, like the recently passed National Popular Vote (NPV) Interstate Compact bill, can be placed on the ballot for the people to decide on themselves.
Not more than 6 years later though, the Colorado Supreme Court severely restricted this right – to the point of effectively repealing the referendum in Colorado, as was argued by an author in the Harvard Law Review in 1930.
The question of whether the legislature could prevent a referendum on a particular bill was brought to the Colorado Supreme Court in 1916 via the case Van Kleeck v. Ramer. The argument was based on Article V Section 1 (3) of the Colorado Constitution, which states that the people have the right to referendum “except as to laws necessary for the immediate preservation of the public peace, health, or safety.” In Van Kleeck, the court ruled that not only could the legislature prevent a bill from being referred if it was necessary for the immediate preservation of public peace, health, or safety, but that the legislature had absolute and sole authority to determine if a bill is so necessary and that its conclusion could not be challenged – even in court.
The legislature exercises this power by including a safety clause. It did not take long for the lawmakers to begin to use this unchecked power, and in the 1930’s – coincidently around the time of a successful referendum striking down a tax increase on butter – the legislature began including the safety clause in almost every bill.
The Van Kleeck decision, affirming the prediction of the Harvard Law Review author, had effectively repealed the referendum process in Colorado.
The automatic inclusion of the safety clause continued for over half a century. In 1997, the Office of Legislative Legal Services was directed to begin asking lawmakers if they would like a safety clause included in their bills, instead of automatically including it. Since then, usage of the safety clause has declined, but not as much as one might expect.
In the 2018 legislative session, approximately 43 percent of bills signed into law included a safety clause. An unquestionably high percentage, given the justification for the use of the clause. That figure increased to about 46 percent in the 2019 session, which just so happens to be the year the legislature passed some of the most controversial and divisive laws in recent history – many of which have even been met with protest.
Almost half of all bills that became law in 2019 are not subject to the scrutiny of voters at the ballot. And while the National Popular Vote referendum is likely to be on the 2020 ballot, equally divisive pieces of legislation like HB19-1177 (Red Flag) or HB19-1032 (Comprehensive Human Sexuality Education) cannot be sent to the people for approval. For the Red Flag bill especially, this lack of democratic recourse has led to drastic resistance measures.
However, it’s not just high profile, controversial bills that include a safety clause. Bills like HB19-1329 that exempts the sale of certain fertilizer from sales tax, or HB19-1191 that removes size restrictions on lots where farm stands can operate, or HB19-1180 that changes the definition of a police working horse, or HB19-1178 that changes the name of Western State Colorado University to Western Colorado University, or HB19-1127 that allows the Lt. Governor to also serve as the Director of the Office of Saving People Money on Health Care, are, according to legislators, so important for immediate public peace, health and safety, as defined by the safety clause, that the people can’t be allowed the opportunity to vote on them.
If in a state where the people possess the power of popular referendum, yet nearly half of all laws passed are impervious to popular challenge, one can begin to reasonably question the actual weight of this power. The fundamental problem with the safety clause, as created by the Van Kleeck decision, is that it grants the legislature unchecked authority to prevent the people from exercising their power to oversee the laws enacted to govern them.
The safety clause raises more than just a moral issue, it has real-world affects. The Red Flag bill, unlike the National Popular Vote bill, included a safety clause and is immune from referendum. Counties and sheriffs in Colorado who are displeased with the Red Flag bill have vowed not to enforce it. A majority of Colorado counties have adopted some form of a resolution criticizing it and have hinted at the idea of local law enforcement not enforcing it. In fact, some sheriffs in Colorado have vowed not to enforce the law, even when ordered by a court to do so or face jail-time.
The existence and use of the safety clause essentially implies that the people of Colorado cannot be trusted to look after their own well being. That they would strike down legislation detrimental to their own immediate safety. So, lawmakers use the safety clause to protect the people from themselves.
This year, it was the Red Flag bill’s immunity to challenge that led to real world consequences and will likely cause more in the future. Moreover, the numbers don’t lie, the safety clause is likely to continue to be used at an unreasonably high rate. It begs the question: What bill might lawmakers pass next session that will govern your life but be too important for you to have a say over?
Avery Ranum is a student at Colorado State University, studying political science and legal studies. He was an intern with the Local Government Project at the Independence Institute and conducted research regarding the use of the safety clause.