41: Going, going ...

Ruling contains powerful arguments against troublesome measure

Published June 1, 2007 at midnight

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Page by page, example by devastating example, Denver District Court Judge Christina Habas outlined the shocking overreach and absurdities of Amendment 41 in her ruling Thursday that puts enforcement of the measure on hold.

Her decision, which believe it or not covers 41 pages, may be the most devastating critique to date of the arrogance and sloppiness of Amendment 41's authors. We can understand why Judge Habas issued an injunction, and why she said the plaintiffs are likely to prevail at trial.

Having said that, however, we're a little uneasy with several of the sweeping arguments that Habas seems to accept in declaring that Amendment 41 may violate the federal constitution's guarantees of free speech and association. And we say this as one of the consistently harshest critics of the amendment in all of Colorado.

Yes, it is absurd, as the judge suggests, that public university faculty "who are considered experts in their fields" can no longer be reimbursed by the federal government for their testimony in front of Congress, thanks to Amendment 41.

But to imply that such reimbursement is a constitutional right because faculty will therefore be "unable to testify" is almost equally absurd. There is no free speech right that presumes federal reimbursement for travel. And they are not unable to testify. If they want to testify, they can always pay their own way or dun the university for assistance.

Alternatively, the faculty can stay home. After all, voters are allowed to be stupid, and if they want to stipulate that professors at state colleges can't accept federal travel money because it's somehow corrupting, that's their business.

If voters had stipulated that faculty couldn't testify at all, that would have been an unconstitutional attack on speech.

The judge goes overboard in similar fashion in other areas. One example: She writes that Amendment 41 restricts the political speech of lobbyists by "eliminating the potential for meetings over meals, during receptions or other events." But 41 doesn't literally do any of those things, although it does, of course, ban lobbyists from even buying lawmakers a snack. Habas reaches her conclusion only by accepting the expansive claims of plaintiffs that virtually any information a lobbyist provides a lawmaker is a "thing of value" that Amendment 41 effectively bans, and that even being seen at a meal sets up lobbyists and lawmakers alike for reputation-damaging complaints to the ethics tribunal.

In other words, they'll eat alone as a result and speech will be chilled.

Please. The meal ban goes too far, without a doubt. But if grown men and women are so panicked that they won't risk being seen chatting over coffee even when they secure separate checks, maybe they should find another profession.

Don't get us wrong. The judge's kitchen-sink approach does in fact result in several powerful constitutional arguments against Amendment 41. One example: "Amendment 41 restricts a lobbyist from socializing with anyone in their personal lives, if those people happen to hold office, are employed by the government, have contracts with the State of Colorado, or are family members of these individuals and groups. This interference violates the fundamental right of association that safeguards the ability to independently define one's identity."

In other words, it is worse than bad public policy to tell someone whom he can socialize with on his private time in his own home. It is quite probably unconstitutional.

It is equally beyond the pale, as Habas again relates, for state policy to prevent members of the Colorado Health Sciences Center Police Department from contributing "more than $50 for funeral expenses to assist a co-employee whose son had died." The amendment "also severely restricted the ability of \[the police chief's] staff to donate unused sick leave for the benefit of a co-employee who had been injured in an accident."

As she writes, "Amendment 41 reaches into the personal lives of those who are covered by its terms" - and in ways that ought to seriously worry any lover of American liberty.

When more 60 percent of voters pass an amendment, judges should be wary of overturning their handiwork. But if it truly crosses the line into abridging fundamental freedoms, then a court has no option but to act.

Amendment 41 very well may have crossed the line.

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