Constitutional conundrum

A DU panel will release its report this week on how Colorado?s cumbersome governing document might be made more manageable.

By Chris Barge, Rocky Mountain News (Contact)

Published January 2, 2008 at 12:30 a.m.

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Photo by Christ Schneider/ Rocky Mountain News

Colorado Archivist Terry Ketelsen holds Colorado's 131-year- old original constitution. The 37 pages look nothing like the current document, which weighs in at 45,000 words.

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Colorado Archivist Terry Ketelsen reached into the stagecoach safe in the corner of his basement office, past the file holding 19th century cannibal Alfred Packer's original death warrant, and pulled out a box containing Colorado's 131-year-old constitution.

The 37 pages of calligraphy look nothing like the constitution of today, which weighs in at a whopping 45,000 words - more than 21,000 of which have been added since 1990.

That's because Colorado has about the easiest governing document to amend in the country, requiring only a simple majority of voters to add provisions.

A growing number of lawmakers agree that these amendments, combined with certain laws, have balled up the constitution to the point that they can't respond to Colorado's rapidly changing needs.

The amendments dictating how lawmakers must spend the state's money are by far the most cumbersome. And lawmakers in both parties say those provisions are the reason there isn't a dime to spare less than three years after voters thought they financially rescued the state by passing Referendum C.

It won't be enough for voters to just extend Ref C when it expires in 2011, the lawmakers say. If the state wants to address needs such as health care, transportation and higher education, lawmakers say the constitution needs an overhaul. "It doesn't get talked about a lot, but it's the 800-pound gorilla in the room that everybody's trying to talk around," Senate President-elect Peter Groff, D-Denver, told reporters at a legislative forum last month.

Recognizing this looming problem, the University of Denver convened a panel over the summer to study the document. It will release a report on those findings on Thursday to lawmakers who appear more ready than ever to do something with them.

Sorting it all out

Groff says now is the time to have a more substantive conversation about a multi-year approach to untangling the knot of problems in the constitution and in state law. It's going to take time to get everyone on the same page about what the problem is, and how to fix it, he said.

The price of doing nothing today could be that five years from now, the University of Colorado will be privatized, elementary school students will be using old textbooks and the plan to reform health care will have lost momentum, he said. "People will say the General Assembly saw this coming in 2008 and didn't do anything about it."

Most legislators agree the constitution's biggest problem is the number of financial provisions that interest groups have convinced voters and lawmakers to approve.

Since 1980, the Colorado Constitution has been amended 52 times. The U.S. Constitution, by comparison, has seen only 27 amendments in 217 years. Many of these, including the Taxpayer's Bill of Rights, were produced by advocates arguing only their point of view, without concern for how their amendments might clash with other constitutional mandates, said Jim Griesemer, chair of the DU panel studying the issue.

The amendments also have had unintended consequences.

For example, TABOR's great appeal was that it required all future tax hikes to be put up for public vote. What many didn't realize, however, was that, after recession years forced the budget to shrink, TABOR prevented the state from making up the shortfalls once the economy recovered.

Legislators call this TABOR's "ratchet effect," because it shrinks state government, forcing cuts in programs.

Compounding the problem, Amendment 23, passed in 2000, requires the state to increase funding for K-12 education by inflation plus 1 percent through 2011, and by inflation thereafter.

So while TABOR forces government to shrink, Amendment 23 requires one of the budget's line items to grow. Ref C, passed by voters in 2005, got the state out of that jam temporarily by allowing it to keep revenues through 2011 that TABOR would have required be refunded to taxpayers.

In another example of battling mandates, the Gallagher Amendment, passed in 1982, shields residential property owners from big tax increases due to rising home values. But its interaction with TABOR caused a major decrease in local tax bases for public schools.

To counter that, Gov. Bill Ritter pushed a bill through the legislature last session that froze property tax levels in some parts of the state, where they otherwise would have gone down.

Republicans have filed a lawsuit, charging that the property tax freeze amounts to a tax hike without the voter approval mandated under TABOR.

Meanwhile, Ritter has already committed $40.5 million of that new, disputed money, to paying for preschool and kindergarten education as well as 70 new guidance counselors next year. He wants that commitment to steadily increase to $115.5 million six years from now.

Most agree there is no good way to revise the constitution. Lawmakers made the job harder for themselves when they passed a "single subject rule" for citizen initiatives and legislatively referred ballot measures, to stop wide-ranging initiatives such as TABOR from ever hitting the ballot again.

House Speaker Andrew Romanoff, D-Denver, has proposed asking voters to lift that rule. The exception would apply only to the constitution, and only for a set period of time. It would allow lawmakers to return to voters in a subsequent year with a fiscally revised constitution that they could vote up or down.

Groff backs that idea as a good first step. It would give lawmakers the opening they need to deal comprehensively with the internal fiscal conflicts of the constitution, he said. Then, two or three years from now, the legislature could think about putting "maybe a son or a cousin or a mother-in-law of Ref C" back on the ballot, he said.

Measures considered

He and others also want to consider a ballot measure that would increase the number of signatures required for referred and citizen ballot measures. Perhaps citizen initiatives would require some sort of validation by the legislature, he said. Rep. Al White, R-Hayden, has floated several ideas in recent years, including convening a constitutional convention.

That, however, would take a massive effort and would be prone to interest groups pushing for provisions far outside the scope of fixing Colorado's fiscal quagmire, Groff said.

Of course, any attempt to overhaul the constitution will be met by critics - perhaps none so loud as TABOR author and incoming House Rep. Douglas Bruce.

"They talk about fixing the system the way a vet would fix your pet," the Colorado Springs Republican said. "They want to emasculate it."

Most, however, agree that if voters want the state to make health care and higher education more affordable or maintain and improve roads, the state as a whole needs to start untangling the constitution's fiscal knot.

Ritter views TABOR as the tightest part of that knot. He wants to maintain what he calls the "virtuous" part of TABOR, that requires a public vote on any tax increase or change in tax policy.

But he said during an interview last month that he is leading a discussion with groups both inside and outside the Capitol about how to loosen TABOR's other restrictions on state spending.

If the 2008 legislative session does not produce a tax question to fund a specific state need, "that gives us some time to discuss that issue, about whether TABOR reform should be placed ahead of specific things like health care, or transportation," he said.

If voters pass a constitutional amendment unraveling those other parts of TABOR, the state may get the money it needs to tackle the issues people care about, Ritter said.

"That's the conversation that's still happening, and it's the right conversation," he said.

bargec@RockyMountainNews.com or 303-954-5059

Competing mandates

A look at competing constitutional amendments that affect the state budget:

* Gallagher Amendment: Passed in 1982, it limits the amount of tax burden the state can place on residential property owners.

* TABOR, the Taxpayer's Bill of Rights: Limits state spending and taxation by a formula based on population and inflation.

* Arveschoug-Bird: Limits general fund spending hikes to 6 percent annually. The legislature initially passed the measure in the spring of 1992, but it was included in TABOR that fall, so it now is part of the constitution.

* Amendment 23: Requires the state to spend more money on K-12 education, even during a recession.

Strange bedfellows

Today, the original handwritten Colorado Constitution sits in an old stagecoach safe in the corner of state Archivist Terry Ketelsen's basement office. It has been re-bound three times, and its pages are held individually in non-acetate display pockets. According to the original 1876 constitution, only men over 21 were allowed to vote. But Colorado became the first state to approve women's suffrage in a popular election in 1893.

Ketelsen's safe also contains these historic documents:

A court file for Colorado cannibal Alfred Packer, including his death warrant. A court file for "The People vs. John (Doc) Holliday," which includes the charge against the dentist, gambler and gunfighter of "assault with intent to commit murder."

A handwritten note from President Lincoln to Colorado territorial Gov. John Evans, dated March 16, 1865, and written on Executive Mansion stationery. Later, the Executive Mansion would become known as the White House.

A March 13, 1942 letter from President Franklin Delano Roosevelt, urging Colorado Gov. Ralph Carr to tell motorists in his state to slow down so as to preserve rubber needed for the war effort.

Colorado Constitution fun facts

Never say "God"

The preamble begins with the words, "We, the people of Colorado, with profound reverence for the Supreme Ruler of the Universe . . ."

Long road to statehood:

It took more than 17 years, from its first constitutional convention in Denver in 1859, for Colorado to become a state.

Their aching hands

Fred J. Stanton, the engrossing and enrolling clerk for the constitutional convention, handwrote Colorado's original constitution.

The assistant engrossing and enrolling clerk, W.A. Salisbury, then penned a copy.

Don't let it get wet!

Gov. John L. Routt sent his secretary, John N. Reigart, to Washington, D.C., with the copy of the constitution along with certified ordinances, votes and proclamations, on July 25, 1876.

Nifty name

On Aug. 1, 1876, 100 years after the Declaration of Independence was adopted, President Ulysses S. Grant declared Colorado a state. It became the "Centennial State."

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Comments

January 2, 2008

9:13 a.m.

Suggest removal

Scott writes:

If the garbage that runs for office and gets elected would lead instead of sucking up to the special interests We The People would let them have some of the responsibilities (power) back. Until this garbage starts leading, We The People will keep the power to ourselves.

Also, note that the politician/lawyer (Ritter) claims it wants to keep the "virtuous" parts of TABOR. WARNING: Ritter is a lawyer, hence a pathological liar. NEVER, I repeat NEVER trust anything that a pathological liar says.

Scott
January 2, 2008

12:12 p.m.

Suggest removal

aeb1barfo writes:

I had to do a double take. I thought the headline read DUI committee.

After reading the article, I realize that I was right the first time...

The whole point of government is that it stays a CIVIL SERVANT, not a CIVIL MASTER...

We The People lost that battle decades ago at the FEDERAL level...

Are we ready to lose it at the STATE level too?
January 2, 2008

1:16 p.m.

Suggest removal

jackwoehr writes:

Sen. Ken Gordon & the others fibbed when they said Ref. C was for the schools -- as the News pointed out, less that 25% of the Ref. C money went to the schools. Biggest slice went for prison capital construction, as I predicted in the News, yet the News hasn't come back and said, "Gordon fibbed and Woehr was right".

All this "constitutional reform" talk is about is "unleash the legistlature to tax without a vote of the people." They lie about what they need the money for as it is ... what will they do when they don't have to get approval from the voters to raise taxes?
March 31, 2008

4:20 p.m.

Suggest removal

EastVail writes:

Yes please; let's have DU's bottom-tier students and faculty enlighten us about how to revise our constitution. Great idea!

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