Can'em or keep'em?

(Denver Post, Apr. 5) “We are a nation that has a government, not the other way around.” Reagan’s words speak defiance to statism, but they are only as true as we make them. The 2010 election is Coloradans’ chance. Supreme Court justices Mary Mullarkey, Michael Bender, Alex Martinez, and Nancy Rice will be up for another 10-year term. Poor stewards of the law since they last faced voters in 2000, all four deserve dismissal. Whether they’re retained or bounced will signal how much we cherish liberty. Voting judges into office ended here in the 1960s. Gubernatorial appointments replaced the unseemly spectacle of jurists soliciting campaign funds. The people can still vote judges out, however, and no court can overrule us. Nor need we explain why. In this, at least, we’re still sovereign.

Capriciousness isn't justified. “Prudence will dictate” avoidance of political changes “for light and transient causes,” the Declaration of Independence cautions. But terminating a dishonest judge is warranted – and so is termination for breach of trust. Mullarkey, Bender, Martinez, and Rice have failed their constitutional trust.

The justices up for renewal are poster kids for the “living constitution” racket of legislating from the bench in disregard of the written text. Under Chief Justice Mullarkey, as Vincent Carroll wrote after last month’s TABOR ruling, “the Colorado Supreme Court seems to think that it is… free to redefine words however it likes.” Let’s answer their abuse of judicial review with electoral review and retire them.

Is this a wild revolutionary idea as some lawyers and professors will claim? No, it’s an eminently conservative remedy of checking power with power and reminding the government it answers to the nation, not the other way around.

Termination wouldn’t deny the thorniness of such questions as when a tax vote is required, how citizens can petition to discourage illegal immigration, whether low-income scholarships are allowable in public schools, who draws congressional districts, or why a juror’s Bible should annul a murder sentence. It would simply express our displeasure with the four activist Supremes by ordering them replaced.

Replacement, should it occur, may itself be thorny. If defeated in November 2010, Mary Mullarkey (appointed in 1987), Michael Bender (1997), Alex Martinez (1998), and Nancy Rice (1998), Democrats all, would leave office in January 2011 and have their places filled by either Gov. Bill Ritter or his successor. Republicans voters are more likely to want the seats vacated if they foresee a new governor, but that’s no sure thing.

Amendment 40, the judicial term limits proposal I led in 2006, led early but sank as the GOP base saw Bob Beauprez’s gubernatorial hopes fading. Its mandate for appellate judges with over a decade of service to leave after 2008 – which would have opened up five of the seven Supreme Court seats – was less attractive to center-right voters when a Ritter victory seemed likely. Might that dynamic recur next year?

It depends on how energetic and well-funded the do-not-retain campaign against Justices Mullarkey, Bender, Martinez, and Rice turns out to be. California chief justice Rose Bird and two of her liberal colleagues were tossed in 1986 by voters outraged at their leniency to killers. That Colorado murder case I mentioned, the one with the Bible, may gain notoriety as the 2010 race heats up.

Plus there’s the March 16 decision allowing billions in higher taxes without voter approval, which Beauprez calls “the kind of blatant judicial activism that infuriates the citizenry and increases the call for voting against retention of wayward justices.”

A dismissal drive called Clear the Bench Colorado is already being organized by Arapahoe County activist Matt Arnold. Politicians of both parties will probably keep their distance while a nonpartisan “can’em or keep’em” contest determines the four justices’ fate. I say can’em.

Brady & Sharf: More electoral mischief

Editor: Thwarted repeatedly in the past, progressive zealots in Colorado continue their push for a plebiscitary presidency in defiance of the Founders' wisdom. Here's part of the case for honoring the Constitution with continuing reliance on the Electoral College, from contributors Peg Brady and Joshua Sharf. Why even have elections? By Peg Brady gpbrady2@earthlink.net

House Bill 1299’s massive illogic dumbfounds me. As described in the 10 March 2009 Post (Bill “popular” enough to get first panel’s OK), this proposal would require Colorado’s Electoral representatives to ignore Colorado voters’ presidential choice.

Currently, our Electors cast Colorado’s votes for the presidential candidate chosen by the majority of Colorado voters. Thus, in 2012, if most Colorado voters chose candidate A, our state’s Electoral votes would be cast for candidate A. That makes sense.

However, if HB 1299 becomes law, our Electoral votes would be cast for the candidate preferred by voters in other states. Large-population states would control future presidential elections. That may be desirable for them, but it would be disastrous for us.

Reading the arguments debated as the Founding Fathers crafted our superb Constitution reveals their wisdom in establishing the Electoral College. They wanted to ensure that the voters in small-population states would be respected. Because of uneven population distribution, a few states could dominate presidential elections if the Constitution had not protected small-state voters.

To propose throwing away our Electoral safeguard undermines our Constitutional protection.

State Representative Claire Levy supports this dangerous proposal, stating illogically that “…everyone in the state who votes for the candidate who loses Colorado essentially has their vote wiped out.” Conversely, were HB 1299 passed, all Colorado voters would have their votes discarded.

If our Electors were required to ignore our choice and cast our Electoral votes with the national majority, we wouldn’t need to vote at all. The president would be chosen by the large-population East Coast and West Coast states. All the rest of us could just stay home.

I suppose that Colorado could save money by not bothering to hold elections. What would be the point? But I, for one, want my vote counted.

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Amendment by minority, compact by whim By Joshua Sharf jsharf@jsharf.com

Ross Kaminsky, Amy Oliver, and others have blogged locally about about the end-run around the Constitution that is HB1299. I won't bother to repeat their efforts to defend the Electoral College.

What strikes me is the irony of using the Electoral College and the Constitution to undermine them. HB1299 provides that the bill won't take effect until states with a combined Electoral College vote of 270 - enough to elect a President - approve it. The eleven largest states could decide that they want to change how a President is elected, without input from the other states. (In practice, Georgia and Texas, are unlikely to go along with this scheme, so the number of states needed would rise to 14 under current electoral count. Upcoming reapportionment might change it down to 13.) This reverses the Constitutional formula for amending the Constitution, with barely 1/4 of the states able to change things on their own.

When I pointed this out to the last political hack to try this stunt, Ken Gordon, on the air a couple of years ago, he retorted that this was only true because of the Electoral College itself, as those same states could elect a President. Of course, electing a President, who serves for four years, is a far less critical task than changing the Constitution, which changes will likely be with us forever.

The whole maneuver may not even be Constitutional. Article I, Section 10 reads, in part:

No State shall, without the Consent of Congress, ... enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

There are numerous interstate compacts, dealing with law enforcement, sexual predators, water rights, and other topics. The Supreme Court has ruled that the State needn't get Congressional approval unless the compact would impinge on Federal jurisdiction, which is why it's located in Article I, legislative powers.

However, the Court also ruled that term limits were an additional requirement for office, and that since Congressmen were Federal officers, the states had no power to impose those eligibility requirements. I wonder if one could make a similar argument about electors. I also wonder if a state has the right to apportion its own electors as it chooses, but cannot sign away that right of selection to other states.

All the arguments about this being an urban power grab are true. What's also true is that it's an unholy mess, which because its effects take place catastrophically, rather than as the states adopt it, is likely to sneak up on us and be settled in court, where so many of our issues are decided, rather than in the legislatures, where they ought to be.

Open it up, urge Nikkel & Kopp

Editor: Rare is the legislation that goes from stalled to unstoppable under Colorado's gold dome, and rare is the legislator who rides that kind of cyclone in her first month on the job. But such is the case with freshman state Rep. B.J. Nikkel and her transparency bill. Taking office on a vacancy appointment after the 2009 session had already started, Nikkel picked up an open-government proposal that fellow Republican Don Marostica had recently shelved, and quickly assembled a potent coalition for its passage -- after more than a year of inaction by the executive branch on this issue. Here's her account, co-authored with Senate sponsor Mike Kopp.

Bipartisan Calls for Transparency in State Government By Rep. B.J. Nikkel (R-Larimer Co.) and Sen. Mike Kopp (R-Jefferson Co.)

Making government transparent is a popular issue in the Colorado legislature this year, as we’ve had several attempts to provide taxpayers with online access to Colorado’s various governments spending habits.

Our bill, House Bill 1288, places Colorado on the cutting edge of transparency in state government, and if enacted, we will join over a dozen states nationwide that have already put state expenditures and revenues online.

Last week, HB 1288 – The Colorado Taxpayer Transparency Act, passed through House Finance Committee unanimously. Two weeks prior to that, a broad coalition of 38 Democrats and Republicans came together on the House floor in unison to co-sponsor our legislation upon its introduction.

The Colorado Taxpayer Transparency Act is similar to other bills that have passed in several states, including Missouri, Kansas and Texas, as well as in the United States Senate. The U.S. Senate version of transparency was sponsored by then-Sen. Barack Obama, D-Illinois, and Sen. Tom Colburn, R-Oklahoma.

Just as transparency has brought together members of both parties in the U.S. Senate, a broad coalition of Democrats and Republicans have also come together at the State Capitol in support of making transparency part of state law.

Gov. Bill Ritter, D-Colorado, has even announced plans to sign an executive order, mandating that all government spending be made available electronically. Although we applaud the governor for his willingness to put the state’s spending online, an executive order does not go far enough because it is not a law and can be swept away by the stroke of a pen.

Any new governor can simply rescind Gov. Ritter’s executive order. It’s very important for taxpayers to know that transparency in state government is not fleeting – it must be made permanent by through an act of state law. In addition, other states like Missouri that have implemented it through executive order have come back and made it permanent by putting it into law.

We are currently working with the governor’s office and hope that he will join this bipartisan group of Republican and Democrat lawmakers in supporting this important legislation in making transparency permanent for Colorado taxpayers.

Under current law, the burden-of-proof is on the taxpayer. If you want information on state spending you have to file a Colorado Open Records Act request and be willing to wait, spend hundreds or even thousands of dollars on staff research and printing fees, and then wonder if you’ve truly received all the relevant information.

Our legislation shifts this burden-of-proof to the state government by making the process for quickly reviewing how the state is using your money, just a mouse-click away.

Putting the states expenditures and revenues online through statute, is a first step toward greater accountability. Under HB 1288, Colorado citizens will have the tool they’ve asked for to help us identify potential waste, and in some cases, fraud and abuse.

The state’s expenditures and revenues should be transparent, accessible, and free—and we need to keep the mantra of the taxpayers in mind which says, “if you can’t defend it, don’t spend it.”

Motorists shafted by Dems' tax trick

Beginning July 1, Colorado drivers will pay higher taxes--we're told to call them "fees"--on every vehicle every year when we renew our license plates. The increase of $29 to $51 per vehicle is projected to generate $250 million annually to repair unsafe roads and bridges, Gov. Bill Ritter said when he signed the "fee" hike into law.

All this occurs under the guise of economic stimulus as Colorado Democrats learn from their Washington counterparts to strike quickly while the economy is on the ropes and the public is too worried about their own finances to pay attention to statehouse shenanigans.

To be fair, transportation funding from Colorado's fuel tax has been stagnant in recent years because it's calculated on a per-gallon, rather than a per-cent, basis. Higher fuel prices and better fuel efficiency keep total fuel consumption relatively flat. For the last 10 years, the state's share of fuel tax receipts never fell below $379 million but never grew above $430 million.

When the economy is booming, roads and bridges receive a tremendous bonus from the general fund ‹ income and sales taxes ‹ which nearly matched the fuel tax, adding $1.3 billion to the transportation budget from 2005 to 2007.

However, just hours after Gov. Ritter signed the vehicle fee hike into law, every Democrat in the state senate voted to sever this general fund lifeline to transportation.

If it sounds like Democrats are talking out of both sides of their mouths, it's because they are - at least, so far. One day, they say our roads and bridges are unsafe and demand more money from Colorado drivers. The next day, they take a hatchet to transportation funding.

Any sane person can be excused for wondering what they're drinking or smoking at the state capitol.

Sadly this is nothing new. Dating back to former Gov. Roy Romer, Democrats' favorite tactic has been to grow social welfare spending and leave transportation with scraps. Romer's approach was to tell voters that if they wanted more money for transportation, they should vote for higher taxes.

In 1997, Romer and Republicans reached a compromise that guaranteed the aforementioned bonus source of highway funding and limited general fund spending increases to no more than six percent per year.

Republican Gov. Bill Owens staunchly defended that compromise and worked out a similar agreement with Democrats in 2002.

Now that Democrats hold a monopoly at the state capitol, they seem intent upon smashing those agreements in order to boost social welfare spending.

Senate Bill 228 would eviscerate the limit on general fund spending, end a vital source of transportation funding, and allow rapid expansion of entitlements. Even Gov. Romer didn't suggest repealing this limit without the required public vote, but today's Democrats are above consulting lowly taxpayers.

The bill's sponsor, Sen. John Morse, nearly stepped in it recently when, reacting to opposition from Denver chamber of commerce, he declared, "Let's let the people's elected representatives decide that - not the chamber."

Better yet, Sen. Morse, let's let the people decide for themselves, as the constitution ­ which you pledged to uphold ­ requires.

Ironically, proponents suggest that eliminating a spending limit to facilitate more spending on social welfare will help Colorado "get out of a recession."

That's an argument with rife with economic illiteracy. If all spending limits disappeared tomorrow, state government still couldn't spend an extra dime. In a recession, it's the economy that limits spending. Moreover, Colorado's government doesn't fund the economy; the economy funds government.

If Democrats want to expand social welfare spending, they should be honest about it. If they believe transportation needs more money, they should first protect every existing resource. And if they want to repeal state spending limits, they should follow the constitution by asking the voters.

Mark Hillman served as senate majority leader and state treasurer. To readmore or comment, go to www.MarkHillman.com

'Rest of story' suffers with Rocky gone

Just in the first week since the Rocky shut down, think about the state and local stories that were covered less robustly in the absence of a competing metro daily. Three for starters would be: ** Senate Dems seek to bust the 6% constitutional spending limit.

** Senate Dems endorse college subsidies for illegal aliens.

** CU students welcome plagiarist Ward Churchill and terrorist Bill Ayers.

Nothing against the solid reporting and commentary we've read in the Denver Post about these events, but they contain so many deeper levels and cross-currents that no single newspaper can possibly do them justice.

There's a reason people have two eyes and ears; a reason we say two heads are better than one; a reason Scripture says wisdom needs many counselors.

At 90, Paul Harvey, the founding father of opinion radio, was going to leave us one of these days. But how fitting that we lost him on the same weekend when Coloradans lost some of our access to "the rest of the story" with the Rocky's demise.