Colorado voters last fall prohibited every state employee — from the governor to university professors to janitors — from accepting gifts worth more than $50. The aim was to prevent undue influence on state policymaking, but unintended consequences are leading some to reconsider.
“If ever there was a poster child for not putting ethics legislation in the constitution, it’s [Colorado’s] Amendment 41 because it’s so poorly written,” said Peggy Kerns, director of the National Conference of State Legislatures’
Center for Ethics in Government.
Passed 62 percent to 38 percent on Nov. 7,
Amendment 41 made Colorado the first state to specify in its constitution a dollar limit on gifts, Kerns said. Recipients and donors of an illegal gift can be fined twice its value.
Even before the ballot measure went to voters, critics had warned the amendment’s broad wording could keep families of state employees from accepting legitimate personal gifts and scholarship money.
“This is what happens when someone recklessly amends the constitution,” said
Katy Atkinson, a Denver lobbyist who first brought up the scholarship issue in September. “Obviously, we didn’t have enough money to effectively spread the word about the consequences.”
Fears were compounded in late December when state Attorney General John Suthers said professors could not accept monetary portions of achievement awards they might win, such as the more than $1 million Nobel Prize. In a memo, Suthers told University of Colorado System President Hank Brown that professors also could not accept an expensive bottle of wine from a friend invited to dinner.
That caused some lawmakers to cancel dinner meetings with constituents and a state employee to resign, fearing her children would lose their scholarships. Doug Abraham, police chief at the University of Colorado at Denver, stopped raising money for a co-worker whose child had died.
“What upsets me the most is that raising money has absolutely nothing to do with my job,” Abraham said. “I’m just helping out a friend. I didn’t realize when I voted in favor of the amendment that this would happen.”
On May 7, a judge in Denver will take up a class-action lawsuit to strike down all parts of Amendment 41 except for a “revolving door” provision barring state lawmakers from lobbying the government for two years after leaving office. The suit argues the new law violates First Amendment rights by chilling political speech between citizens and lawmakers and among the legislators themselves.
“Legislators don’t know each other anymore because they’re not in social environments together,” said
Douglas Friednash, the lawsuit’s lead attorney. “They can’t even buy dinner for each other.”
But Jenny Flannigan, who heads
Colorado’s Common Cause office, said Friednash’s concerns resulted from “hysteria” fed by media coverage. Flannigan said that she and Common Cause lawyers had drafted the amendment to target only “violations of public trust for private gain.”
The Colorado Legislature is taking steps to set up a
five-member ethics commission to enforce the new rule at the same time lawmakers strive to clarify the law, which doesn’t expressly say which gifts are banned. It’s uncertain whether legislators have the authority to clarify a voter-approved constitutional amendment, or whether the amendment would have to be sent back to voters for rewording.
House and Senate leaders have agreed to ask the state Supreme Court to determine whether the amendment can be fixed legislatively. House Speaker Andrew Romanoff (D) said there’s a 50-50 chance that the court will decide.
If the court declines to decide or denies lawmakers’ authority, the issue likely will end up before voters again, but probably not until 2008. State law allows only fiscal questions to appear on the ballot during odd-numbered years.
The amendment’s primary financial backer, Denver entrepreneur
Jared Polis, said he had pressed for a ballot initiative to change the constitution as a last resort after growing frustrated at the Legislature’s defeat of similar ethics measures in the past. He said Amendment 41 provides a "workable framework" that can be clarified by the Legislature.
“The same legislators who first opposed Amendment 41 are now trying to undermine it,” Polis said. “But the voters gave a clear indication that they really want this.”
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