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Slow compromise on 41
By Lou Christopher
achris25@mscd.edu

Amendment 41 continues to confuse lawmakers and upset the public, with three lawsuits filed seeking clarification and revision of the amendment.

A motion claiming that the amendment imposes on First Amendment rights was filed along with other suits questioning the amendment’s reach. One of the lawsuits looking for clarification has already been settled.

The Boettcher Foundation, along with three current Boettcher scholars, filed suit to clarify the scope of Amendment 41 and to find out if dependents of government employees could receive the Boettcher Foundation scholarship. The scholarship is merit-based, but recipients must also maintain minimum requirements while receiving the scholarship. The scholarship also stipulates that attendance must be at a Colorado college or university.

Because of these stipulations and the qualifications set forth by the scholarship, Amendment 41 does not affect it.

Even though some of the language has been clarified, much remains unresolved, and a motion for injunction filed against the amendment questions its constitutionality.

“The real infringement on thousands of individuals’ core speech rights is happening every day,” said Jean Dubofsky, counsel for the plaintiffs in the case. “In a country where the foundation of democracy is freedom of speech and freedom of association, overly broad and vague restrictions such as those imposed by Amendment 41 must be challenged.”

The amendment’s challengers feel the only way to find definitive answers to the questions brought up by the amendment is through the courts.

“If core political speech, the type of speech on which our entire system of government depends on, is to be protected, Amendment 41 must be examined closely by a court,” said Doug Friednash, co-counsel in the case.

The so-called ethics in government amendment, which was intended to control lobbying activities and the sway of money on politicians, prohibits lawmakers and government employees from receiving certain gifts with a value of more than $50. The amendment, passed last fall, has the governor and the attorney general “troubled by the recent reports of government employees leaving or contemplating leaving government service due to concerns over Amendment 41,” according to a joint press release.

The concerns in this case are the educational benefits that might be at stake for the children of government employees, and specifically whether or not the dependents can receive scholarships.
According to Jason Dunn, deputy attorney general, the answer is found in the nature of the entity giving the scholarship, the type of scholarship and whether there is lawful consideration given for the scholarship. Dunn said Colorado courts have generally defined consideration as “a benefit received or something given up as agreed upon between the parties.“

If a scholarship is based on past performance, the scholarship cannot be accepted. If the scholarship is based on some future endeavor however, such as studies towards a specific degree, maintaining a certain grade point average or some other performance obligation, Dunn said it could be argued that lawful consideration is given for the scholarship, and the scholarship could therefore be accepted.

The governor’s office and the office of the attorney general asked for patience in the matter of resolving Amendment 41 issues, and said they are confident the majority of scholarships for the children of government employees will be acceptable under Amendment 41.

Citizens filing lawsuits are not the only ones trying to figure out the ambiguous amendment.

House Bill 1304, a bill sent before the Colorado legislature, seeks to define the terms of Amendment 41, clarify that the activities unrelated to one’s public office is not a violation of the law and establishes the Independent Ethics Commission, according to Colorado Common Cause, a non-profit organization that calls for government accountability.