DENVER — Doing what he is well known for, Independence Institute president Jon Caldara has started the process to let Colorado voters decide whether legislators should be treated differently than other elected officials when they meet in groups of more than two.
Last Friday, Caldara and his co-proponent, Vanessa Rutledge appeared before the Legislative Council staff to answer questions about Initiative 287, which would repeal Senate Bill 157.
Rutledge is the communications and marketing manager for the Independence Institute, a Denver-based free market think tank, which is also the publisher of Complete Colorado.
SB 157, which was passed earlier this year in record time and signed into law by Gov. Polis on March 12, created a carve-out to Colorado’s sunshine law for state legislators so that they could have meetings outside of public oversight.
Under the old law, legislators and legislative committees were required to open up meetings of two or more members and give “full and timely” notice. Now, they are allowed to discuss bills with each other and meet secretly in small groups to discuss public business.
Additionally, “any form of written communication, electronic or otherwise, exchanged by two or more members of the General Assembly” would not be subject to the open meetings law.
Lawmakers said those records would still be subject to disclosure “to the extent required by the Colorado Open Records Act.” However, even that protection has loopholes that state agencies and other government entities continue to abuse to avoid releasing otherwise open records.
In fact, the state lost an open records lawsuit to Complete Colorado earlier this year over documents withheld because the custodian of those records claimed the information contained, which discussed bills to tighten the grip on hospitals, was too candid for public disclosure and that lawmakers and staff needed to know they could speak frankly without the public knowing.
That lawsuit cost Complete Colorado nearly $30,000 to pursue, a cost that the average citizen cannot afford to pay.
Senate President, Steve Fenberg, a Boulder Democrat who was one of the main sponsors of the bill said during a hearing that SB 157 created clarity and removed gray areas. However, it was crafted after the legislature was sued twice, and lost, over open meeting violations that included secret balloting and secret meetings.
House Speaker Julie McCluskie, a Dillon Democrat who also was the other main sponsor on the bill, agreed with Fenberg and called the old law vague and confusing, and a detriment to the democratic process
Caldara’s filing of the initiative came just before the deadline to make the 2024 statewide ballot. It still has several hurdles to clear, but such initiatives are Caldara’s forte. He has successfully taken citizen-initiated ballot measures to the public to open up teacher union negotiations and to twice lower the state income tax, among other things.
In a memorandum dated April 2, Legislative Council Staff and Office of Legislative Legal Services expressed concern that the initiative did not meet the single-subject rule for ballot proposals, to which Caldara and his attorney’s argued he is simply removing the very same stuff from Colorado law that the legislature added under the same single-subject requirements.
Caldara was to the point when the legislative council asked during the review and comment hearing on Friday what that single subject was.
“To repeal the godawful bill that was signed into law,” he said.
Upon approval of the ballot language, Caldara will need to gather more than 125,000 signatures of registered voters to get it on the ballot.
That may not be as hard as it sounds, however, as most media outlets, as well as government watch dog organizations opposed the bill from the start, virtually guaranteeing widespread press coverage and support.
For example, Colorado Freedom of Information Coalition executive director Jeffrey Roberts said in his blog that the “bill will encourage state lawmakers to formulate and debate public business in an unlimited way via email, text message and ephemeral messaging apps such as Signal without the public’s knowledge and scrutiny.”
Roberts went on to say that “if such electronic communications haven’t already been deleted … they likely would not be available to request because CORA excludes all documents prepared or assembled by a member of the general assembly relating to the drafting of bills or amendments from the definition of ‘public records.’ Those are considered ‘work product.’”
The next step for Caldara will come at 9 a.m. on April 17 for the first hearing before the title board. Complete Colorado will continue to follow this process.
