41 under siege

Constitutional arguments against it may have merit

Published February 9, 2007 at midnight

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It's been many years since any ballot issue has roiled Colorado as much as Amendment 41.

Not since the passage in 1992 of Amendment 1 (the Taxpayer's Bill of Rights) and Amendment 2 (which overturned local gay rights ordinances) has there been so much furor and anger over what voters themselves wrought at the polls.

You'll notice that one of those '92 amendments has vanished from sight. Amendment 2 was challenged in court and overturned in a case that eventually landed in the lap of the U.S. Supreme Court. Now the same attorney who led the charge against that doomed amendment, Jean Dubofsky, is part of a team targeting Amendment 41. Their case was filed Thursday in Denver District Court, and even we must admit that it presents some appealing arguments for why the amendment may violate the U.S. Constitution.

We say "even we" because this page has been a frequent critic of courts around the country that strain to overturn laws passed by popular vote. So until we hear the full legal arguments for both sides, we're reluctant to endorse the plaintiffs' conclusion that parts of Amendment 41 should be struck down. But even if this wretched amendment should survive, there is no question that the general case the plaintiffs make is sound:

• The amendment does chill the political speech of thousands of Coloradans.

• It does impede the right of association for some.

• It does undermine the fundamental right of citizens to communicate with their elected officials, even to educate them regarding issues dear to their hearts.

• It does place "unequal burdens on different citizens in substantially similar circumstances."

The question is not whether the amendment does these things; it's whether the damage is such that judges have no choice but to overturn it.

Let's say a small businessman who believes the legislature is in danger of passing an ill-advised workers comp reform sends his state senator several books on the topic at the politician's request. Why should he have to worry whether he's triggered a violation of Amendment 41's gift limits?

Why should a government worker who devotes hundreds of hours to a volunteer board worry whether the free lunches and snacks she eats at its meetings are worth more than $50 a year? Her fellow volunteers employed in the private sector have no such concerns, after all.

How can a free society that believes in the equal application of the law restrict some citizens from showering their grandchildren with gifts, just because those kids' parents are government workers, when most other grandparents face no such legal burden?

What kind of weird, draconian, ill-conceived amendment would apparently restrict so much healthy political and civic activity and so many normal acts of generosity? The answer of course is Amendment 41, brought to you by Common Cause and former state school board member Jared Polis.

Whatever the fate of Thursday's lawsuit, it has already served one purpose: It has helped to clarify the magnitude of the damage that can be inflicted by bull-headed activists who believe they are smart enough to micromanage every aspect of the public's political life.

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