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Amendment 54, one of few issues to pass, violates free speech rights, opponents say

By Joanne Kelley, Rocky Mountain News (Contact)

Published November 6, 2008 at 12:05 a.m.

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Voters wait in line to cast their vote the Belmar Library in Lakewood. State voters approved Amendment 54, one of three anti-union measures.

Photo by Matt McClain / The Rocky

Voters wait in line to cast their vote the Belmar Library in Lakewood. State voters approved Amendment 54, one of three anti-union measures.

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The passage of Amendment 54 casts too wide a net, legal experts say, banning political contributions by everyone from union members to prominent business leaders serving on the boards of local universities and nonprofits.

By extending the donation ban to family members, the narrowly approved initiative faces an even bigger chance of being challenged in court for violating constitutional rights to free speech.

"Courts don't like to overturn voter amendments, but this one is going to have great difficulty withstanding constitutional scrutiny," said Doug Friednash, an attorney with Greenberg Traurig who led a challenge of a 2006 amendment banning gifts to elected officials, government workers and their relatives.

Backers of Amendment 54 included associates of the Golden-based Independence Institute, a free-market think tank that also pushed a defeated amendment that would have prevented governments from deducting union dues from workers' paychecks.

Tom Lucero, spokesman for the successful campaign, argues that other states have similar limits that have managed to withstand legal challenges.

The point of the measure, Lucero said, is to save taxpayers money by encouraging competitive bidding for government contracts.

It prohibits political gifts by holders of contracts worth $100,000 or more if the government awards them without a competitive bidding process. The ban covers officers and board members of companies and nonprofits, as well as unions that represent government workers.

"We believe unions fit this principle," Lucero said. To avoid the ban "they can remove collective bargaining from their contracts."

The amendment's impact on board members has recently captured the attention of the many nonprofits that contract with the government to provide specialized research or health care, often in rural areas where no other provider exists.

"I can't imagine any board member for any institution being happy with the amendment," said Paul Chan, general counsel for the University of Denver.

Among those with an interest: Oakwood Homes CEO Pat Hamill, who serves on DU's board and would be unable to make any contributions to candidates or issue campaigns until two years after DU's contracts expire.

Hamill headed the business coalition that agreed to fight Amendment 54 and two other anti-labor initiatives in a compromise that had unions pulling four other measures from the statewide ballot.

"I immediately feel like my rights are taken away," Hamill said, who raised the possibility the business-labor coalition will mount a challenge.

Labor unions spent heavily trying to shoot it down, saying the language of the amendment will also deny teachers, firefighters, police officers and other state workers the right to contribute to political campaigns.

"We're looking at legal action," said Colorado AFL-CIO Executive Director Mike Cerbo. "People thought they were voting on contractor reform. There are other ways to get at that than depriving citizens of their voice."

Forbidden by 54

Amendment 54 will forbid a wide array of Coloradans from making political contributions, raising the likelihood of a free speech challenge by opponents of the measure. Among those affected:

* Unions and union members (teachers and firefighters, for instance) if they contract with government and nonprofits providing health care and other specialized services under exclusive contract with the government.

* The state has a variety of no-bid contracts with local universities, whose trustees no longer would be able to contribute to political candidates or issue campaigns until two years after a contract's expiration.

* Prominent community members affected include a long list of University of Denver board members, such as attorney Steve Farber, developer Pat Hamill and financier Donald Sturm. Board members at Colorado State University, which is listed as a government contractor for the state in 2008, include real estate executive Doug Jones and Denver Metro Chamber President Joe Blake.