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By Katherine Berezowskyj

Imagine a way for citizens to challenge bad legislation. Voters would possess the power to assess and overrule legislators. As far-fetched as that might sound, the Colorado Constitution already establishes this control.

Under Article V, Section 3, the power of referendum is reserved by citizens to evaluate an act before becoming law. If a petition is filed within 90 days after the final adjournment of the legislative session, then the bill goes to a statewide vote before becoming law on its “effective date.” This power actually precedes the gubernatorial veto and is the intended way for legislation to come into law.

The vast majority of bills do not end with an “effective date,” but rather a “safety clause” that trumps the possibility of a referendum petition. The provision for a safety clause also is included in Article V, Section 3 as an exception for laws that are “necessary for the immediate preservation of the public peace, health, or safety.” Bills that contain this clause are exempt from the referendum process.

Legislators determine which bills are so vital to all Coloradans that they merit a safety clause. In theory, the safety clause should apply in only a few instances and not when the fiscal impact is great or the issue contentious. For more than 70 years, citizens of Colorado have watched legislators marginalize their rights and abuse the safety clause by tagging it to a majority of legislation.

The safety clause is so prolific that during the 2007 legislative session, 188 House bills (70 percent) and 167 Senate bills (82 percent) passed with it. (One example of legislation deemed “necessary for the immediate preservation of public peace” is HB 1126 which regulates physical therapy of animals.) More unnerving, until 1995 the safety clause appeared on every bill.

The gross abuse of this clause is both a blatant disregard of the state constitution and a way for legislators to skirt citizens’ right to question legislation. Bills free of the safety clause tend be uncontroversial and are ones citizens might not wish to review. Typical of these no-safety-clause bills were seven concerning new types of license plates, all but one projected to increase state revenue.

Safety clause abuse occurs in other states. In Washington state the scale of this problem, compared to Colorado, is minor. In 2007, 13 percent (73 bills) of Washington’s total legislation passed with a safety clause. Residents and media criticized Washington’s legislators for this “high” volume and argued the real safety concern is that “the constitutional right of referendum is under attack.” The safety clause was only used in nine controversial cases, and the rest were relatively inconsequential.

The safety clause is so routine in Colorado that the annual Digest of Bills lists “bills enacted without a safety clause,” rather than ones with it.

A practice being routine does not mean that it is correct. An article in the Harvard Law Review from March 1930 questioned the already popular practice of legislators using a safety clause to avoid public scrutiny of their bills. During that time, the initiative and referendum rights that citizens had recently won were beginning to be whittled away by elected representatives. The article not only championed initiatives and referendums as a “means of correcting the abuses of representative government,” but explains that the safety clause became a frequent refuge of the General Assembly as “a means of avoiding popular review.”

The author understood more than 70 years ago the importance of the referendum and was fearful of unchecked government power.

In a state where the power is supposed to originate from and is vested in the people, the government has figured out how to strip citizens of their autonomy. The legislative exploitation of the safety clause is an abuse of the principles of the Constitution. Appropriate use of the safety clause by legislators would restore dignity to the laws they are creating. Demands by Colorado citizens for the referendum process can put power back into their hands. Perhaps then physical therapy of animals will not be seen as a threat to the public safety of Colorado.

Katherine Berezowskyj recently completed an internship with the Independence Institute in Golden. She is a senior at the University of Michigan.

READER COMMENTS

This is another blaring example of how these fruit loops in the legislature think they know more and know better than the citizenz who pay their salaries.
WRONG
Our system of government has been run in this manner for the last 50 years, and the problem is not only with our local legislatures but it is a nation wide problem, which is very much used in washington where the rest of the fruit loops that think they know more than the citizens of the United States continue on their merry little ways and listen to the lobbyists and not to the people.
This is something that needs to be taken away from our self serving legislatures here and in washington both.
WAKE UP COLORADO, WAKE UP AMERICA AND START TAKING THESE SELF SERVING FRUIT LOOPS TO TASK.
They all think they are above the laws.
WRONG, WRONG, WRONG

Katherine, thanks for the 'heads-up'. I didn't know that the elected officials were using the safety clause as just another way to limit the power of the people, and make them beholden to the 'agenda'.

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