Colorado Amendment 41 (2006)

Amendment 41 is a citizen initiative adopted by Colorado voters in the 2006 general election.

Amendment 41 places new restrictions on gifts, broadly defined, given to Colorado public officials, government employees, and their immediate family members. Such persons are prohibited from receiving gifts with value exceeding $50. Gifts from lobbyists are banned regardless of amount. An exception is made for gifts given between personal friends and relatives on special occasions.

Amendment 41 also prohibits statewide elected officeholders from lobbying certain state elected officials for pay for two years after leaving office and creates an independent ethics commission appointed by elected officials with individual members having investigative and subpoena power.

Gift Ban interpretation

There is dispute over the meaning of the gift ban portion Amendment 41. This dispute existed even before the measure was adopted by Colorado voters, and has continued after it was adopted. The dispute over the meaning and appropriate way to respond to Amendment 41 was a leading political issues among political insiders in Colorado in 2007 and has not been resolved definitively, as of July 16, 2008.

Almost everyone involved in the Amendment 41 debate agrees that it was not well drafted. Most participants in the debate also agree that voters did not realize/believe that their vote would prohibit generosity towards minor government officials, such as billing clerks and state patrol officers, and their families, unrelated to any official action.

It is unambiguously clear from the language of Amendment 41 that all government employees are within the scope of the gift ban and that, in at least some circumstances, close family members of all government employees are also within the scope of the gift ban.

Opponents of Amendment 41, many of whom are Democrats, feel that the plain language bans gifts unrelated to any official action even to the most menial of government employees, without regard to intent or corrupt influence. They note that a requirement of a corrupting influence in the gift ban would overlap existing criminal bribery prohibitions. Opponents also believe that the strict gift ban is mandatory language of Amendment 41 which may not be modified by implementing legislation. In their view the least desirable aspects of Amendment 41 may be limited to truly corrupting gifts or to a narrower class of public officials only by:

1. changing the state constitution,
2. having the language declared in violation of the United States Constitution, or
3. having the process by which it was adopted declared improper.

The validity of the adoption process is beyond question as of 2008^[update].

Supporters of the gift ban associated with the proponents of the measure, many of whom are Democrats and/or Common Cause members, feel that the plain language reading should be tempered by the stated purpose of the law to apply only in circumstances where a gift amounts to a violation of the public trust. These supporters feel that even if this reading of the language of the Amendment is not clear on its face, that the legislature, and/or an independent ethics commission created pursuant to Amendment 41 has the authority to give the language of Amendment 41 this meaning. Colorado's state legislature adopted legislation purporting to give Amendment 41 the narrow construction urged by its supporters in 2007, but opponents of Amendment 41 doubt that this language is constitutional on the grounds that it deviates from the express language of the state constitution.

Some supporters of Amendment 41, primarily conservative Republicans who are unaffiliated with the individuals who drafted and secured signatures for the Amendment, like most opponents of Amendment 41, believe that a strict interpretation of the gift ban that does not allow gifts even when they are unrelated to any official action is correct.

Legal reactions

The state legislature, in the same legislation stating its interpretation of the initiative, asked the Colorado Supreme Court to resolve the dispute over the constitutionality of this implementing legislation, but it declined to act.

A state trial court of general jurisdiction in Denver, Colorado issued a preliminary injunction against the enforcement of Amendment 41 on U.S. constitutional grounds in 2007. The state court in this case issued a preliminary injunction banning enforcement of the gift ban on First Amendment grounds during the pendency of the litigation. [1] On appeal to the Colorado Supreme Court, the preliminary injunction was then vacated on February 25, 2008, on the grounds that the suit was not ripe prior to the organization of the independent ethics commission, without reaching the merits of the constitutionality of Amendment 41[2].

Proposed constitutional amendments

Amendment 41 supporters proposed a clarifying citizen initiative aimed at the November 2007 ballot, which escapes a usual ban on non-fiscal citizen initiatives at odd numbered elections by including a tax on lobbyists to finance the implementation of Amendment 41. But, this proposal was invalidated by the body that oversees the initiative process in Colorado for failing to state a single subject, and did not make it onto the ballot as a result.

No ballot issues to interpret Amendment 41 will be placed before Colorado voters in 2008. The Colorado General Assembly did not propose any referrenda to do so, and no citizen initiated ballot issues were proposed and had titles approved in time to be included on the November 2008 ballot.

Regulatory guidance

Colorado Attorney General John Suthers, a Republican, has stated that Amendment 41 prevents university professors and their dependents from receiving the monetary portion of many awards and scholarships, including the Nobel Prize [3]. The Colorado Attorney General's office also expressed a more moderate interpretation of Amendment 41 in subsequent litigation, but this litigation stance is not binding because the Colorado Supreme Court subsequently held that a decision on the merits was not yet timely.

Other elected officials in Colorado, including Governor Bill Ritter and members of the Colorado General Assembly's legislative leadership have expressed disagreement with the Colorado Attorney General's interpretation of Amendment 41.

The independent ethics board has been established under Amendment 41 and has issued advisory opinions setting up a more moderate interpretation. The moderate opinions appear to narrow the scope of the amendment to merely cover those behaviors that were prohibited by law before the amendment was enacted.

Politics

Amendment 41 was advanced by Colorado Common Cause with the financial support and endorsement of Democrat Jared Polis, then a member of the State Board of Education, and more importantly, one of the leading financial backers of Democrats and liberal causes in Colorado. Many have pointed out the irony of Polis's spending money to establish a public policy of prohibiting the use of money to influence public policy.

Democrats in Colorado have been divided by Amendment 41 before and after its enactment on the lines described above. Democratic members of the Colorado General Assembly have taken differing sides on how to implement the measure since it has been passed.

Some Colorado political observers have hypothesized that Jared Polis supported the measure in an effort to advance his fortunes in the upcoming open Congressional race in Congressional District 2 (Boulder) which incumbent Democrat Mark Udall is vacating to run for the U.S. Senate in 2008. Those observers see the battle over Amendment 41 as a proxy fight between Polis supporters and those who did not want Polis to have a major accomplishment going into the 2008 Congressional election. Other observers discount this political interpretation of the struggle and see this as a dispute over legal interpretation and process issues. Polis won a three-way primary battle over former Colorado Senate President Joan Fitz-Gerald and environmental activist Will Shafroth on August 12, 2008.

Since Amendment 41 was adopted, the Republican caucuses in the state house and state senate, both of which are controlled by Democrats, have largely taking a position embracing strict enforcement of Amendment 41, despite a history of opposing measures proposed by Common Cause. Republicans have generally argued that the Amendment 41 should be given the strict interpretation urged by Amendment 41 opponents, and that legislation to weaken this strict interpretation should not be adopted.

The Amendment 41 debate has aroused only limited interest for voters who are not governmental employees and do not follow politics in Colorado closely.

See also

• List of Colorado ballot measures

External links

• Legislative Council ballot analysis
• Ballot question language
• Constitutional Amendment language
• Suthers: Amendment 41 prohibits Nobel Prize money
• No On 41 committee opposing the initiative
• Coloradans for Clean Government political action committee supporting the initiative
• Bell Policy Center 2006 Voter's Guide analysis
• League of Woman Voters in Colorado including La Plata County opposing the initiative
• Colorado Professional Fire Fighters opposing the initiative
• Rocky Mountain News editorial, October 2, 2006 opposing the initiative despite good intent - Dangerous Overkill in Amendment 41
• Rocky Mountain News editorial, October 7, 2006 opposing the initiative despite good intent - Another Reason to Reject 41
• Pueblo Chieftain editorial - Legislating Ethics
• Denver Post editorial supporting Amendment 41
• Daily Camera editorial Supporting Amendment 41 - Cleaner Government
• http://www.gjsentinel.com/news/content/news/stories/2007/01/31/1_31_1A_Amend_41_scholarships.html Grand Junction Sentinel - Ethics Measure Disqualifies Local Scholarship Aspirant