Colorado Amendment 41 (2006)

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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.

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[edit] 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 has been a leading political issues among political insiders in Colorado in 2007.

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 also 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 family members of all government employees are within the scope of the gift ban.

Opponents of Amendment 41 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. Opponents also believe that this is mandatory language 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 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.

Supporters 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. 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 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, but opponents of Amendment 41 doubt that this language is constitutional.

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 [1].

[edit] 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. Litigation seeking an injunction against the enforcement of Amendment 41 on U.S. constitutional grounds was pending as of May 31, 2007 in the state trial court of general jurisdiction in Denver, Colorado. 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 on May 31, 2007. [2]

Meanwhile, Amendment 41 supporters have 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. This proposal was invalidated by a body that oversees the initiative process in Colorado for failing to state a single subject, a decision currently on appeal to the Colorado Supreme Court.

[edit] 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.

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 do not want Polis to have a major accomplishment going into the 2008 Congressional election. Another announced Democratic candidate in that race at this time is Joan Fitz-Gerald, the top Democratic party leader in the State Senate.

Others observers discount this political interpretion of the stuggle and see this as a dispute over legal interpretation and process issues.

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 interpretion urged by Amendment 41 opponents, and that legislation to weaken this strict interpretation should not be adopted.

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