By: Emily Hessler

On November 8, Colorado voters will decide whether to approve a hotly contested measure––Initiative 71––that would make it more difficult to get initiatives on the state’s ballot and to pass proposed constitutional amendments. The so-called “raise the bar” amendment would require that, in order for a constitutional initiative to make it onto the ballot, two percent of voters in each of Colorado’s thirty-five state senate districts sign the supporting petition. Initiative 71 would also require that constitutional initiatives receive fifty-five percent voter approval to pass.

Colorado has long been considered an initiative-crazy state. According to the Initiative and Referendum Institute, Coloradans have put 215 initiatives on the ballot since 1912 and the state’s Constitution has actually been amended via initiative forty-eight times. Initiative 71’s backers argue that relatively lax restrictions on the initiative process, coupled with Colorado’s swing state status, have made the state a laboratory for experimental initiatives. Indeed, Initiative 71 proponents argue that Colorado’s Constitution has become a dumping ground for faddish issues––including, for example, marijuana legalization, which was passed by constitutional initiative in 2012.

The ballot initiative is often heralded as a powerful tool for the people. It originated as a means of checking entrenched legislatures, curbing corporate influence in politics, and pushing populist reforms. However, some observers argue that businesses and well-funded special interest groups have co-opted the initiative process, using it to pass self-serving laws.

By way of example, in 2014, big businesses poured substantial sums into initiative contests in Colorado. A proposed constitutional initiative that would have expanded gambling at Colorado horse-racing tracks failed overwhelmingly, notwithstanding the fact that out-of-state businesses backed the measure to the tune of nearly $20 million.

Perhaps it’s no surprise, then, that this year’s battle over the constitutional initiative in Colorado has itself presented a stark conflict between direct democracy ideals and big business realities. Initiative 71’s opponents argue that corporate backers are financing the “raise the bar” campaign in an attempt to head off future constitutional initiatives that would hurt business interests in the state.

Earlier in 2016, two anti-fracking measures––Initiatives 75 and 78––failed to gather the signatures required to make it onto November’s ballot. The initiatives were strongly opposed by the oil and gas industry: groups fighting the measures raised $15 million, with almost ninety percent of that money coming from oil and gas companies.

Specifically, oil and gas companies bankrolled a “decline to sign” campaign urging voters not to sign petitions supporting the anti-fracking initiatives. Ads funded by Coloradans for Responsible Energy Development––a group formed by two energy industry giants headquartered in Texas––claimed that Initiatives 75 and 78 were attempts by out-of-state special interest groups to meddle with Colorado’s Constitution.

In the face of well-funded opposition efforts, supporters of the anti-fracking initiatives suspected that they would likely fail to get their measures on the ballot. Still, they rushed to try to gather the needed signatures knowing that Initiative 71 was in the works. Grassroots anti-fracking groups fear that, if Initiative 71 passes, they will never be able to garner statewide support sufficient to get a constitutional amendment on the ballot. One opponent of Initiative 71 estimates that it currently costs around $1 million to get an initiative on the ballot. If the “raise the bar” initiative passes, the cost could double or triple.

Once it was clear that the anti-fracking measures were not going to make it onto the November ballot, oil and gas companies turned their attention––and money–– to Initiative 71. Indeed, the “raise the bar” initiative has been funded primarily by the same oil and gas companies that opposed the failed anti-fracking measures. Industry backers have shelled out about $3 million to support the initiative, providing over seventy percent of total contributions. Opponents of Initiative 71 have also received a few considerable contributions, including from the National Education Association and the Colorado AFL-CIO, though their expenditures lag far behind those of the initiative’s proponents.

In short, the clash over the constitutional initiative in Colorado is being driven largely by a single industry’s attempt to protect itself from laws that could be put into effect by the citizens of the state. Colorado Congressman Jared Polis recently described Initiative 71 as a “power grab by the political and corporate elites.” Ironically, the supporters of Initiative 71 are also invoking the specter of outsider corporate interests hijacking the state’s constitution, but as a justification for making it more difficult to pass amendments by initiative­­. Even former Denver Bronco John Elway entered the mix, alleging that out-of-state special interest groups have been “playing games” with the Colorado Constitution.

And Initiative 71’s detractors are not immune to irony. Just weeks before the election, opponents wheeled a Trojan horse into downtown Denver in an attempt to draw attention to the corporate money being funneled into pro-Initiative 71 political committees. The Trojan horse stunt was funded by Citizens in Charge, a Virginia-based advocacy group.

According to recent polls, the race to “raise the bar” in Colorado is too close to call. During a recent interview, Josh Penry, a former Colorado State Senator and part of the “raise the bar” campaign, was asked whether it would bother him if Initiative 71 passes with less than fifty-five percent of the vote. Penry said that such a result “wouldn’t change the fundamentals,” presumably meaning that Initiative 71 backers would accept even a narrow victory. The initiative’s opponents, too, would surely welcome a win by any margin, if not at any cost.

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