Jerry Kopel

KOPEL: 'VOTE-TRADING' OUTLAWED SINCE 1876

Amendment-47-type deals prohibited to lawmakers by Colorado's founders

“Jerry,” says fellow Legislator XY. “You know I oppose your four bills, and I could spend a lot of time and money to defeat them. But I know you aren’t that attached to them.

“I can join you in fighting Rep. EF’s bill. In fact, I can enlist my lobbyist friend to help us. Just tell the committee chair to let your four bills lay dormant.”

If I had been party to such a deal in 1988, Legislator XY and I both would have been guilty of violating Section 40 of Article 5 of the Colorado Constitution dealing with bribery and influence in the General Assembly.

Here’s a somewhat condensed version of Section 40:

“If a legislator promises to give his vote or influence in favor of or against any measure pending or proposed to be introduced, in consideration that another legislator gives, promises, or agrees to give his vote or influence for or against such measure, the person giving shall be guilty of solicitation of bribery and the other legislator shall be guilty of bribery.”

Section 40, which applies only to legislators, was adopted in 1876 and has never been amended.

It’s appropriate to explore this issue during this election because labor unions and a number of business executives recently struck a deal that involved labor removing four initiatives from the ballot in return for financial and personal assistance in fighting three anti-union ballot issues — including Amendment 47, the “right to work” initiative.

I may anger friends in both labor and business by looking at the implications of Section 40, but this is an important issue.

The deal did not constitute bribery as defined in 18-8-301 and 302 of the Colorado Revised Statutes. These two sections have been in place since a major legislative rewrite in 1971 and have never been amended.

According to CRS 1-40-104 and 134, two designated representatives are needed to begin the initiative process and to end it.

In my opinion, attorney Ted Trimpa, who helped arrange the agreement, was careful not to include anyone in the final decision-making process who would fit within the statute’s definition of “party officer” or “public servant.”

As a voter who planned to vote for Amendment 53 because of its clause regarding crimes committed by corporate executives, I was disappointed to lose that opportunity when it was withdrawn, especially since the most recent poll numbers showed Amendment 53 winning by a percentage “in the high 50s.”

I do not believe the activity would constitute intimidation — interfering with the ability to cast a vote — under CRS 1-13-713, nor that it would constitute criminal extortion under CRS 18-3-207.

The last “vote-trading” investigation in the Legislature was in the middle 1980s, when the attorney general alleged that one legislator, now deceased, had traded votes.

As a retired legislator, I cannot recall a similar circumstance to compare with the current labor-business agreement. It sets a precedent.

No one can claim it won’t happen again, either. When Referendum O becomes part of the constitution, there will be an even easier route to place initiated statutes on the ballot — or at least they could be on the ballot until removed under future agreements.

Rep. Amy Stephens, R-Monument, and Sen. Mike Kopp, R-Littleton, are trying to find a way to outlaw any such future agreements in the next legislative session.

Two suggestions:

(1) Add a passage to 18-8-301 that would define who has the authority to remove initiatives from the ballot.

(2) Require that any removal of an initiative from the ballot be approved by a high court (appellate or supreme) as to whether removal is appropriate, and which would allow stakeholders (persons whose signatures helped place the measure on the ballot) to file briefs opposing or supporting removal.

If “right to work” Amendment 47 is defeated, don’t be surprised to see proponents bringing a lawsuit under present law against the labor and business interests involved in the agreement.

I do not think they will be successful, but one never knows.

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Jean Tool has died. He had an outstanding career in politics and an outstanding talent for drawing. I might add one item not in his obituary. In the back of the Press Club dining area was the Tom Ferril table, where Tom and Fred Pannebaker always had lunch.

There was room for three more, all sitting facing Tom and Fred. For many years, Jean and I shared two of those seats. Directly to the right on the wall was a Jean Tool portrait of a handsome newspaperman whose face was drawn entirely in signatures, which made it so much more fascinating than any ordinary caricature would have been.

Jerry Kopel served 22 years in the Colorado House and recently received a Colorado Bar Association medallion for 50 years of service as an attorney.