Flat no on Ref O

Without question Colorado's constitution has suffered from various inconsistent amendments. The primary argument in favor of the so-called SAFE Amendment is that we need some solution to thetraffic jam of Amendment 23, TABOR, and the Gallagher Amendment. That's Exhibit A, although it's hard to actually find an Exhibit B.

Now, the Democrats, with considerable Republican support in the state Senate (8 of 15 Republicans supported the bill), are trying to use this vague dissatisfaction to pass Referendum O, a constitutional amendment making it harder to, well, pass constitutional amendments.

Referendum O would:

1) Increase the signature requirement by 7,000. Currently, constitutional amendments require 5% of the last vote for Secretary of State. Referendum O would require 6% of the last vote for Governor.

2) Push the deadline back to April from August. Petitions campaigns would have to start before the legislature met, and wrap up before adjournment. For all practical purposes, anything passed by the legislature wouldn't be subject to an Amendment over-turn for over a year. Any effort to pass anything could be derailed by a plea to wait and led the legislature deal with it. And if you believe that...

3) Require that at least 8% of signatures come from each Congressional district. Initially, it would have required 8%.

Here's where we need to do some math. With roughly 93,500 signatures needed, that means that about 7,500 valid signatures would be required from each Congressional district. Realistically, we'd need 15,000 since up to half may get invalidated by the Secretary of State. This won't affect signature gathering in Denver, Colorado Springs, or Boulder (CD-1, CD-5, or CD-2), and probably wouldn't affect CD-6 very much, as it's becoming urbanized, or at least, suburbanized. But take a look at the population distribution in CD-3 and CD-4.

CD-3 has liberal Pueblo, and more-liberal-than-conservative Grand Junction. The population - especially the more Republican population - is much lower density, much more spread out. And it's not even like Grand Junction is that large. According to the Mesa County Clerk and Recorder, at the last municipal elections, there were roughly 21,000 registered voters in Grand Junction.

So this, just like Amendment 27 -- the notorious campaign finance measure voted into the state constitution in 2002, more draconian than McCain-Feingold -- places a premium on organization and money to pay for signature-gatherers, especially for more conservative amendments. Especially as proponents will no longer be able to rely on popular anger over legislative action.

While the Democrats were in a perpetual minority, they made spectacularly effective use of the initiative amendment process, passing Amendment 23, which has helped hamstring the budget, and Amendment 27, which has placed a premium on big money and union organization in campaigns. Now that they are in the majority, the modern-day "progressives" find no end of fault with the only meaningful check the citizens have on a runaway legislature backed by a governor and a compliant State Supreme Court.

This is what the Democratic party is exceptionally good at: using power to perpetuate power.

When Coloradoans passed Amendment 27, they probably didn't realize that in their desperation for "reform," they were actually voting for a Trojan Horse.

This time, there are no excuses.

SF Mayor flunks civics

"They don’t like our Constitution," asserted Gavin Newsom, Mayor of San Francisco. That incredible remark, uttered on television the other day by the chief executive of "Baghdad by the Bay," referred to the supporters of real marriage, who qualified a constitutional amendment for this November’s general election ballot to reaffirm what the voters decided with Proposition 22 in 2000. Suddenly, the California Constitution that never—repeat, never—protected any "right" by persons of the same sex to marry each other becomes "our Constitution." How did this happen and what does it mean? There are no more intense and full-fledged opponents of constitutional government than liberal politicians like Gavin Newsom. The purpose of a written constitution is to check the exercise of political power by the government and the abuse of liberty by the citizens. Just as every legislator, executive and judge is obliged to uphold our Constitution and laws, so too is every citizen. Constitutional government is all about restraining passions.

But there is no evidence that Mayor Newsom believes this. The same man who solemnly intones that "our Constitution" is not liked by those who disagree with him about marriage, has publicly stated that he will not comply with any federal legislation that criminalizes efforts to help illegal immigrants.

Such defiance is not out of character for Newsom, who began the campaign to legalize same-sex marriage by defying openly state laws which restricted marriage to one man and one woman. Remember all those "gay marriages" at San Francisco City Hall that had to be nullified because they were illegal? "Our Constitution" then had not the slightest connection with same-sex marriage, but somehow the Mayor knew all along that it did.

The question for us is whether Newsom "knew"—in a theoretical or a practical sense—that the ultimate outcome of his then lawless actions would be a State Supreme Court decision giving a fantastical interpretation of the Constitution’s equal protection clause. That is, was he merely another "idealist" who believed so strongly in his judgment that he was willing to defy the law? Or did he have inside knowledge of the Court’s deliberations and intended decision?

One difficulty with the first possibility is that Newsom is a government official, just like those southern politicians who appealed to "states’ rights" for 60 years before the Civil War to defend slavery, or to impose racial segregation for a century afterwards. The claim of civil disobedience seems a sham when one government official is simply defying another set of government officials.

The merits of civil disobedience aside, the only proper name for Mayor Newsom’s planned defiance of federal laws on illegal immigration, and his already demonstrated disregard for state laws on marriage, is lawlessness. For the same man piously to invoke "our Constitution" now that the state’s highest court has reached the same pernicious decision that he has, is enough to engender outrage in any law-abiding citizen.

Newsom’s public embrace of "our Constitution" following a history of lawless behavior should also make us very suspicious. What does "our Constitution" really mean? The old one that upholds the rights of all citizens to do what the law permits or does not forbid? Or is it the new one that invents rights whenever a majority of the Supreme Court reaches that conclusion? What did Newsom know and when did he know it? We are unlikely ever to know.

Our republican government is as wary of judicial tyranny as it is of legislative or judicial tyranny. Abraham Lincoln was severely critical of a United States Supreme Court decision which held that Congress had no power to restrict slavery in federal territories and that black persons had no rights which white persons were bound to respect. While not challenging the ruling between the parties in Dred Scott v. Sanford, (1857) Lincoln refused to accept the Court’s ruling as the last word on the subject. As he said in his First Inaugural Address (1861):

"[I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."

The citizens of this state who seek to overturn the decision of our highest court to defy thousands of years of sound practice, based on "the laws of nature and of nature’s God," are acting in the spirit and following the good example of our nation’s sixteenth president. They understand, as he did, that the people—not the mayors, not the judges, not even the legislators—are the sovereign rulers.

Unlike Mayor Newsom or the California Supreme Court, these citizens understand that the Constitution is based on what Thomas Jefferson correctly referred to as the "moral law." The whims of mayors and judges cannot be permitted to corrupt marriages and families.

Big government stalks Centennial

(Denver Post, May 18) “The era of big government is over,” Americans were told by Bill Clinton in 1995. If only. Since then we’ve seen his wife run for President in pursuit of a health care takeover, his buddy Al Gore propagandize for massive intervention on global warming, and his successor George Bush balloon the budget deficit. States and localities have continued to fatten as well, multiplying budgets, payrolls, and new government entities at “an astounding rate,” according to Clint Bolick, author of the book “Grassroots Tyranny.” Familiar with Colorado from his years at Mountain States Legal Foundation, Bolick is now with the Goldwater Institute in Arizona. “Big government didn’t disappear,” he says, “it simply moved to the suburbs.” Our state is notorious for its kudzu-like proliferation of special taxing districts. We’re also the place where life imitated art in 2000, when a city called Centennial incorporated itself south of Denver, echoing James Michener’s novel by that name about an imaginary town north of Denver. A struggle over the young municipality’s future is now underway.

Centennial, where I’ve lived since 1974, will hold an election June 10 on its proposed home-rule charter as drafted by a citizens’ commission. Residents are divided. The debate matters to all Coloradans as a case study in government’s inherent tendency to grow, whether driven by real needs or not.

Commission chairman Cathy Noon argues that under home rule, “we the citizens will craft our own governmental structure, one that meets our needs,” resulting in “more self-governance” and “enhanced quality of life.” Sounds good. But Chris Raab, head of the opposition, worries that city hall insiders are “trying to grow the city, and the growth is not paying for itself.” He contends the charter is fatally flawed with “poor checks and balances.”

Sounds bad; so who’s right? Under Colorado’s constitution, a city or town is entirely a creature of the state legislature unless it votes for home rule under a mini-constitution of its own. Such autonomy has superficial appeal, and most of our larger municipalities have opted for it. But you’d best be skeptical if you value individual liberty, small government, and free markets. Political empire-building is just too big a temptation, especially in localities.

Studying my locality’s proposed charter at CentennialColorado.com, I found a number of commendable safeguards against overgovernment. But they’re mixed with troublesome provisions reflecting the weak checks and balances that Raab criticizes. Why eliminate the treasurer and the clerk, two of the only three citywide elected officers? Why empower the mayor and council members to fire each other for undefined “good cause”? I’ll be voting no.

It’s nothing personal. I just want more safeguards than this plan gives. Founding Father James Madison warned that “schemes of oppression” are easier to carry out locally because special interests swing more weight there. City politicians are much less well-known than those in state and federal offices, notes Clint Bolick, adding: “Local governments are like vampires: they operate best under cover of darkness.”

Randy Simmons, who teaches political economy at Utah State and is mayor of his small town, says that a meddlesome populism infects city councils, and the lack of partisan accountability in local government makes it worse. He observes that even Republicans tend to “go socialist” in municipal office, tempted to “do good with other people’s money.”

Simmons says he’s glad Utah’s constitution has no home rule option, so their legislature can prevent grassroots tyranny. But Colorado lacks that protection. “If the charter’s not written right, citizens can lose control of their city to the hired manager,” says Larry Merkel, who as a Wheat Ridge councilman saw it happen there in 1976. Will Centennial make the same mistake? Let’s hope not.

Term Limits: Some Failure

Out of the 15 states that limit legislative terms, 10 rank near the top in economic competitive- ness among the 50 states. Colorado, one of the first to enact term limits back in 1990, ranks 7th. If that's what Denver Post columnist Dan Haley calls policy failure, let's have more of it. Haley's piece on May 4, "Term limits have failed," doesn't prove its case. He says the eight & out rule for Colorado's state senators and representatives "hasn't made our government by the people more efficient and effective," but gives no examples to support that.

I'd argue, to the contrary, that firm restraints on government growth and activism, imposed by the people in the late '80s and early '90s -- the 120-day legislative session, term limits, and tax limits under TABOR -- have done much to help the state as a whole grow and prosper ever since.

Economists Arthur Laffer and Stephen Moore, writing in the "Rich States, Poor States" survey at ALEC.org, rate the bullish or bearish outlook of each state according to its fiscal, regulatory, and labor policies. States in the top half of the class where term limits don't seem to spell failure include...

Arizona #2, South Dakota #3, Colorado #7, Nevada #11, Oklahoma #13, Florida #14, Arkansas #15, Michigan #16, Missouri #17, and Louisiana #21.

I'm not suggesting term limits are either a necessary or a sufficient condition for achieving a strong economic outlook. Obviously the rest of the top-rated states got there without term limits. And term-limited states in the bottom half of the class include Montana #33, Nebraska #34, California #41, Maine #44, and Ohio #47.

I'm just saying Dan is going to have to show me some evidence that term-limited states are necessarily worse governed, because on the evidence so far it appears they may be somewhat better governed.

Maybe it's matter of what we think government should do. Many of us believe it should stay off our backs and out of our pockets. By that measure, the Haley concern that too little is being done to "bridge partisan tensions" and that "statehouses with term limits are growing... less powerful" is no concern at all.

His source for the latter quote, the National Conference of State Legislatures, being a trade association for legislative careerists, naturally dislikes term limits. To which again, some us merely say: too bad for them.

Give NCSL credit, though; their research is generally professional, thorough, and accurate. Here's their overview on the factual status (not the subjective evaluation) of term limits today.

The 15 states that do have them, a number that my friend Dan suggests is paltry and embarrassing, should in my opinion be considered the fortunate few.

Update on petition rights & fights

There is a drive in Colorado to make constitutional amendment petitions far harder to do, leaving statutory petitions alone. The bill is SCR-3, linked here. It is through the Senate and needs only 4 of 25 Republicans joining Dems to clear the House before May 7 adjournment. I rate it as likely to go to the ballot. That's the first part of my answer after a national reporter saw the previous post and asked: "Are there any current attempts in Colorado to restrict the right of initiative? On the judicial term limits petition,did you have any problems with interference or 'blockers'?" I continued as follows:

Also of note this year is the Mark Hillman initiative proposal for a curb on trial lawyers, to which they seek massive retaliation. See details here.

As far as harassment of signature efforts, the barrage against Ward Connerly's civil rights effort here in Colorado is Michigan 2006 all over again. Jessica Corry explains here.

Finally, Jon Caldara has a potent measure on ethical standards for public payrolls (similiar but superior to paycheck protection) now gathering signatures. We also expect Armaggeddon on the ballot between Right to Work and Big Labor.

As for the failure of my judicial term limit petition, that simply reflects our big donors from last time having different priorities this year than in 2006. We didn't mount a serious enough effort to encounter the kind of interference from opponents that's occurred in other states.