The Colorado General Assembly added considerable teeth to the regulation of the initiative process last session, and I predict that someone or some organization caught in the cross hairs of the new regulations will challenge them.
In House Bill 09-1326, the General Assembly created a whole array of additional regulations and enforcement mechanisms that, while well intentioned, will place major burdens on persons who desire to place an initiative on a Colorado ballot, particularly ones that are controversial and opposed by well-heeled interest groups. The regulations include: (1) essentially banning per-signature payment to circulators; (2) requiring that circulators be available as witnesses to testify in protest hearings brought by initiative opponents; (3) requiring that persons who pay petition circulators obtain a license; (4) requiring detailed reports showing among other things the compensation paid to petition circulators; (5) requiring the filing of reports listing the identities of petition circulators; (6) additional requirement for notaries attesting to petition circulator affidavits; and (7) the real kicker, allowing well-financed, well-lawyered opponents to recover their attorneys fees if they can prove “fraud” in collecting any signatures or that an initiative proponent’s defense of a challenge from the well-heeled opponent is not “substantially justified.”
These regulations substantially change the playing field in my view. From now on, any proponent of a measure is looking at not only the costs of going through the process in the first instance, including signature collection (without the benefit of being able to pay on a per-signature basis), but the proponent will now have to factor in significant “back-end” litigation costs attendant to defending the signature-gathering process in court. The tool-belts for the challengers of initiatives are now well provisioned, and the prospect for attorneys’ fees is a major concern. Initiative proponents operating on a shoe-string could well find themselves buried in court.
The last time Colorado attempted to substantially regulate the initiative process, major portions of that regulatory scheme were struck down by the United States Supreme Court. In Buckley v. American Constitutional Law Foundation (1999), the Court struck down three statutory regulations: (1) requiring petition circulators to wear badges (out of concern for possible harassment of the circulators); (2) reporting requirements that detailed the identity of circulators and the compensation paid them (same concern); and (3) requiring that petition circulators be registered electors in addition to eligible electors and residents (on the grounds that hundreds of thousands of citizens were eligible to vote but were not registered, and the registration limitation unduly limited the number of persons who could circulate petitions).
I attempted to defend those regulations in Buckley while working with then Attorney General Gale Norton, and I believe the Court in 1999 was moved by considerable empathy for petition circulators and the fact that (in the Court’s view) the petition process was not prone to corruption to the degree that campaigns involving candidates for elective office were. The General Assembly is betting that some recent examples of problems with paid circulation campaigns will establish a record to support regulations which would certainly have been difficult to defend in 1999. There may or may not be a sufficient record now to defend these new restrictions on the initiative process; we’ll just have to see if (or more likely when) these issues are litigated.