Ethics amendment creates an ethical dilemma

In Capitol Review by Mark Hillman

Democracy is the theory that the people know what they want, and deserve to get it good and hard. — H.L. Mencken

Last November, more than 62 percent of Colorado voters supported Amendment 41, the constitutional amendment advertised to crack down on cozy relationships between lobbyists and politicians.

Garnering 50,000 more votes than any candidate, Amendment 41 demonstrated yet again that just because voters give you the keys to government doesn’t mean they want to leave too much gas in the tank.

Amendment 41’s chief proponents, Colorado Common Cause, opted to put the text in the state constitution where the legislature couldn’t monkey around with it.

Common Cause also made sure that key terms were specifically defined to remove even the slightest temptation for those scoundrels at the state capitol to create loopholes for their own advantage.

Now, tens of thousands of government employees – not just miscreant politicians – are saddled with the splashback from Common Cause’s latest misfire. (This is the same outfit that twice gave us laws to take big money out of political campaigns, only to have each successive election become more costly and more vicious.)

You see, Amendment 41 doesn’t simply crimp the style of politicians and lobbyists. In its plain text, 41 applies to “government employees” and their families, too. That means police officers, janitors, receptionists, career bureaucrats – everyone, except schoolteachers, because not even Common Cause wanted to cross the powerful teachers union.

The amendment carefully defines a government employee as “any employee, including independent contractors, of the state…, a public institution of higher education, or any local government….”

So, in its gift ban, Amendment 41 prohibits a government employee, the employee’s “spouse or dependent child” from accepting or receiving money or “any gift or thing of value … from a person.”

Incidentally, a “person” isn’t just flesh and blood. According to the text, person also “means any individual, corporation, business trust, estate, trust, limited liability company, partnership, labor organization, association, political party, committee, or other legal entity.” There is no exception for non-profits or charities, either of which clearly is a “legal entity.”

If the Rotary Club (or the Boettcher Foundation, for that matter) sponsors a scholarship for high school students, children of police officers need not apply. If a city block is wiped out by a tornado or a fire, the families of city workers can’t receive assistance from groups like Red Cross.

Not if the amendment is applied as it is so clearly written. The penalty for violating the ban — enforced against both the recipient and the benefactor — is “double the amount of the financial equivalent obtained.”

Common Cause director Jenny Flanagan claims that Amendment 41 doesn’t apply to scholarships and such. “It’s about freebies, tickets, lavish receptions,” she told the Rocky Mountain News.

Before the election, however, she defended the obviously broad scope of the amendment, telling the Colorado Springs Gazette, “We don’t think it is appropriate for people to buy access to any level of government, whether it is a decision-maker or a person who fixes the elevator.”

Democrat attorney Mark Grueskin, who can argue quite persuasively that black is white, says that a “strict interpretation” — i.e., one that suggests words mean what they plainly say — is unnecessary and that the legislature can determine who’s covered and who’s not, as well as what would be banned.

But when implementing a constitutional amendment, the legislature can only clarify matters that aren’t already defined. Who’s covered (”public officers, members of the General Assembly, local government officials, and government employees”) and what is banned (”any money, forbearance or forgiveness of indebtedness” and “any gift or other thing of value … greater than fifty dollars”) are already clearly spelled out.

If the intent was to apply its strictures to “some,” “certain,” or “specified” persons or situations, then the authors of Amendment 31 wouldn’t have used the all-inclusive “any” so liberally in its definitions and prohibitions.

Moreover, Amendment 41, while allowing for legislation to “facilitate the operation of this article,” also says, “but in no way shall such legislation limit or restrict the provisions of this article.”

The only wiggle room left in Amendment 41 appears to be the exception that allows a gift or thing of value to be “given by an individual who is a relative or personal friend … on a special occasion.”

But unless personal friend is defined to include “churches, charities, non-profits, foundations and service organizations” or unless special occasion is stretched to mean “any activity that is not sponsored by or associated with a lobbyist,” even this exception is of little use.

Some have suggested that, despite its obvious absurdity, perhaps the more draconian impacts of Amendment 41 won’t be enforced by the newly created ethics commission.

Now there’s an ethical dilemma for the new ethics commission to tackle: who, exactly, is above the law?

Mark Hillman is a wheat farmer who served as Senate Majority Leader and as State Treasurer.