Blake: Nature of 41 in the balance

Published April 4, 2007 at midnight

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Who knew Amendment 41 isn't in effect yet?

But that's what Attorney General John Suthers argued the other day when moving to dismiss a lawsuit challenging the amendment's constitutionality.

That's news to most of us. We thought former Gov. Bill Owens signed the proclamation putting the initiated ethics code into effect late last year before leaving office. Besides, the AG himself has signed off on deals with plaintiffs in two other lawsuits that are based on the assumption 41 was law.

It's not easy keeping up with the strategic twists and turns made by the friends and foes of Amendment 41. On Tuesday the House approved a resolution asking the Supreme Court to rule in advance on the constitutionality of Senate Bill 210, which has just been amended to include provisions Senate leadership had previously resisted as outrageous.

Amendment 41 was clearly written and promoted as a gift ban. But now proponents and opponents alike are trying to turn it into an anti-bribery act. There's a big difference.

A gift ban says you can't give gifts over a certain size and, if you do, you're guilty. An anti-bribery act requires you to go into the mind of the gift giver and divine his or her motives. "I wasn't trying to bribe Senator X!" says lobbyist Y. "I've considered him a friend since before he took office and the tickets to the Super Bowl were just my way of being friendly."

Decisions to prosecute under an anti-bribery law are much more subjective, and can turn on the politics and popularity of the donor or donee, not on the act itself.

Suthers, addressing the Senate GOP caucus Tuesday, said it was reasonable to conclude 41 wasn't in effect since the commission it called for hadn't been named yet.

Gov. Bill Ritter - his client - shouldn't even have been named as defendant since his view of what an ethics violation might be carries no more weight than any other citizen's, said Suthers. It's up to the nonexistent ethics commission to decide.

Pish tosh, replied the First Amendment Council, the group suing Ritter. Amendment 41 is self-executing, it maintained, and it quoted a letter Suthers sent to all state employees in February that began, "In the weeks since Amendment 41 took effect . . ."

It also pointed out that Suthers had signed off on agreements with the Boettcher Foundation and The Daniels Fund, saying that Amendment 41's ban on gifts to children of state employees doesn't apply to scholarship students so long as there's a quid pro quo, such as meeting certain scholastic standards.

The First Amendment Council is trying to overturn most of Amendment 41 on grounds that it violates free speech and equal protection rights under the U.S Constitution.

Just 10 days ago, Senate President Joan Fitz-Gerald, President Pro Tem Peter Groff and Minority Leader Andy McElhany were opposed to setting up anything more than a bare-bones ethics commission per the mandates of 41.

But now they've agreed to amend their SB 210 so that it directs the commission "to dismiss as frivolous" complaints that don't allege that the receipt of gifts by a covered public official were for "personal financial gain in violation of the public trust."

In effect, they're asking the Supreme Court to rule that Amendment 41 is an anti-bribery statute, not a gift ban.

Senate leadership previously resisted any effort to change Amendment 41, which is in the state constitution, with a mere statute. Why the change of heart?

Fitz-Gerald explained that they must establish the ethics commission before the session ends in five weeks. They'll have a hard time finding volunteers to serve - without compensation - on a controversial, high-profile commission and need to compromise with the House now to get it done.

blakep@RockyMountainNews.com or 303-954-5119.

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