Colorado's ballot initiative system was severely abused this year, when four of the six voter-initiated measures on the statewide ballot made it to Election Day without disclosure of who paid for the printing of petitions or the collection of signatures to qualify those measures for the ballot. Reform already in place for 2011 should curb some abuses, but the legislature should do more - and initiative proponents should realize that they have little to gain from fighting transparency.
In theory, this should be the last year Colorado sees these shenanigans. A ballot disclosure law sponsored by Rep. Lois Court (D-Denver), taking effect January 1, will require issue committee registration no later than when 200 petition sections are printed. This should make it harder for ballot issue proponents to pretend that they managed to qualify an issue for the ballot without reaching the $200 reporting threshold. But the problems in Colorado's system went beyond proponents' failure or refusal to disclose how they paid to get an initiative on the ballot.
Douglas Bruce revealed a gaping hole in campaign finance enforcement when he resisted having to testify in the first of two lawsuits filed over Amendments 60 and 61 and Proposition 101. Bruce understood that administrative law judges in campaign finance cases have no power to enforce their own subpoenas and gamed the system for months, forcing the Attorney General to file a new lawsuit as part of a cumbersome process to have the subpoenas to Bruce enforced by a Denver District Court judge. Legislators should seriously consider giving judges in campaign finance cases more authority to enforce their own subpoenas.
Another issue is that independent groups are permitted to spend freely on ballot initiatives without disclosure, so long as the group does not have a "major purpose" of influencing elections. This year, the Independence Institute appears to have disclosed its spending in support of Amendment 63, the proposed constitutional amendment on health care, as in-kind contributions to the official pro-63 committee. Another non-profit group, the Pretrial Justice Institute, operated a website in opposition to Proposition 102 but was not legally required to register as an issue committee because of the "major purpose" rule. The legislature ought to consider subjecting spending by such groups to disclosure requirements similar to those imposed on "independent expenditure committees" in candidate elections through Colorado's post-Citizens United disclosure law.
These legislative changes can strengthen the system. But groups that seek to change Colorado law through the ballot initiative process may consider another fact: Amendments 60 and 61 and Propositions 101 and 102 all failed, and questions raised by supporters' failures to disclose may have contributed to those defeats. In contrast, while Amendment 63 also failed, it out-performed the others. The Independence Institute's open support of the measure prevented opponents from raising questions about the motives of hidden initiative supporters. Disclosure should not be viewed as some kind of problem that initiative proponents should try to work around - instead, it should be considered a necessary part in any attempt to set or change Colorado's constitution and statutes.