Dec. 13, 2008
By Jerry Kopel
"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 joined in this discussion back in 1988, I and legislator XY
would have been guilty of violating Section 40 of Article 5 of the state
constitution dealing with bribery and influence in the general assembly.
Condensing the longer language, this is what Section 40 states:
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.
That was adopted in 1876 and has never been
amended, and it applies only to legislators.
Of course, this issue is here as the result of a deal between labor
unions and a number of business executives regarding 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 make friends in both labor and business angry by doing this
review, but it 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.
The two designated representatives needed to both begin the initiative
process and withdraw the initiative are found in CRS 1-40-104 and 134.
My opinion is that attorney Ted Trimpa, who helped to arrange the
agreement was careful not to include anyone in the final decision making
process who fit within the statute's definition of "party officer" or
As a voter who planned to vote for Amendment 53 regarding crimes
committed by corporate executives, I was disappointed at losing my
right-to-vote, especially since the most recent poll numbers showed the
Amendment 53 winning "in the high 50's".
Nor do I believe the activity constituted intimidation under CRS
1-13-713 interfering with the ability to cast a vote, nor was it
criminal extortion under CRS 18-3-207..
The last "trading vote" investigation in the legislature was in the
middle 1980s, with the attorney general assuming one legislator, now
deceased, as having traded votes.
As a retired legislator, I cannot recall a similar circumstance to
compare with the 2008 labor-business agreement. It does set a precedent.
No one can claim it won't happen again under unknown circumstances. 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 on
the ballot until removed under future agreements.
Rep. Amy Stephens, R-Monument, and Sen. Mike Kopp, R-Littleton, are
looking at making such agreements unlawful, in the next legislative
session. Two suggestions:
(1) add a definition in 18-8-301 of persons
having the authority to remove initiatives from the ballot.
(2) require any removal of an initiative from the ballot be approved
by a high court (appellate or supreme) as to whether removal is
appropriate, with the ability of stakeholders (persons whose
signature helped place the measure on the ballot) allowed to file
briefs in opposition to or supportive of removal.
If the right-to-vote 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.
* * *
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 I believe
named Coffee. The face was drawn entirely in signatures, which made it
so much more fascinating than just any ordinary caricature would have
(Jerry Kopel served 22 years in the Colorado House and recently received
a Colorado Bar Association medallion for 50 years of service as a