by Jerry Kopel

How did a life-saving pill become a poison pill?

In 1988, with the help of Common Cause, the GAVEL amendment was put on the November ballot and easily passed. GAVEL stood for "give a vote to every legislator". The House Republican leadership opposed the measure, but could do little at that time, since it made the ballot by petition, and became part of the state constitution.

Here is how it was supposed to work: Legislator has a controversial bill on civil rights assigned to XYZ committee. The committee chairman hates the bill and refuses, over an extended period of time to schedule a hearing, resulting in a "pocket veto".

GAVEL would allow a committee member sympathetic to the bill to make a motion, under GAVEL, for an immediate hearing on the measure even though it was not on the schedule. The hearing would be held, witnesses would testify, and the bill would pass or fail on its merits, thus reducing the chairman's ability to "pocket-veto".

Section 20, Article V of the state constitution now states "Every measure referred to a committee of reference of either house shall be considered by the committee upon its merits, and no rule of either house shall deny the opportunity for consideration and vote by a committee of reference upon such a measure within appropriate deadlines.

"A motion that the committee report the measure favorably to the committee of the whole, with or without amendments, shall always be in order within appropriate deadlines. Each measure reported to the committee of the whole shall appear on the appropriate house calendar in the order in which it was reported out of the committee of reference and within appropriate deadlines."

When the 1989 session of the legislature began, Majority Leader Chris Paulson introduced HR 1005 which amended the House Rules on a straight party-line vote.

HB 1005 allowed the committee chairman to determine how much time to allow testimony and discussion on a measure was adequate IN THE CHAIRMAN'S DISCRETION. And when a motion is made to report a bill to the full House and the bill was not on the calendar for a vote at that time, the bill will be considered "on its merits" and require a majority vote to pass. A tie vote or minority vote kills the bill.

That's how the poison pill was born. Take the same XYZ committee on the controversial civil rights bill. The committee begins work at 10 am. The bill is scheduled for 11 am. At 10 am, a committee member against the bill moves the measure be sent to the House floor and the motion is seconded. The bill sponsor is meeting behind closed doors with his or her witnesses unaware of what is happening.

Fifteen minutes later, the committee chairman concludes discussion and a vote is held. There is a tie vote. The bill is dead.

During the debate on HR 1005, Democrat Minority leader Ruth Wright tried to add additional language "Consideration of a measure on its merits shall include, at a minimum, presentation of the measure by the sponsor or his designee, discussion by the committee, an opportunity to amend the measure, and a vote on the measure." That amendment was defeated 26 to 39. All Democrats voted "yes" and all Republicans voted "no."

From 1989-2001, the "poison pill" was used sparingly. In 2002 its use became more noticable and the then-House Minority Leader Dan Grossman filed a legal action, sustained by the Colorado Court of Appeals, requiring more than just an expedited hearing in order to conform to the state constitution.

The district court which originally heard the case must now decide what is required to keep the poison pill constitutional. I suggest the Ruth Wright amendment be adopted by the House and the sponsor be given the opportunity to have the bill laid over until witnesses can appear.

The only penalty under GAVEL for a violation is to hold the action taken void. But that doesn't help a bit if the bill is killed in committee as opposed to having been passed by the legislature. If a court doesn't decide before a legislative session ends, you can't resurrect a bill.

The 1988 Blue Book by Legislative Council on the arguments against GAVEL was extremely prophetic in one:

The language... is imprecise ... open to differing interpretations which may ultimately have to be decided by the courts. ...the process will still be open to abuse...Either party in the majority will find ways to get around the requirements in order to accomplish its goals."

(Jerry Kopel served 22 years in the Colorado House.)