Colorado Amendment 41 (2006) - Gift Ban Interpretation

Gift Ban Interpretation

There is dispute over the meaning of the gift ban portion Amendment 41. This dispute existed even before the measure was adopted by Colorado voters, and has continued after it was adopted. The dispute over the meaning and appropriate way to respond to Amendment 41 was a leading political issues among political insiders in Colorado in 2007 and has not been resolved definitively, as of July 16, 2008.

Almost everyone involved in the Amendment 41 debate agrees that it was not well drafted. Most participants in the debate also agree that voters did not realize/believe that their vote would prohibit generosity towards minor government officials, such as billing clerks and state patrol officers, and their families, unrelated to any official action.

It is unambiguously clear from the language of Amendment 41 that all government employees are within the scope of the gift ban and that, in at least some circumstances, close family members of all government employees are also within the scope of the gift ban.

Opponents of Amendment 41, many of whom are Democrats, feel that the plain language bans gifts unrelated to any official action even to the most menial of government employees, without regard to intent or corrupt influence. They note that a requirement of a corrupting influence in the gift ban would overlap existing criminal bribery prohibitions. Opponents also believe that the strict gift ban is mandatory language of Amendment 41 which may not be modified by implementing legislation. In their view the least desirable aspects of Amendment 41 may be limited to truly corrupting gifts or to a narrower class of public officials only by:

1. changing the state constitution,
2. having the language declared in violation of the United States Constitution, or
3. having the process by which it was adopted declared improper.

The validity of the adoption process is beyond question as of 2008.

Supporters of the gift ban associated with the proponents of the measure, many of whom are Democrats and/or Common Cause members, feel that the plain language reading should be tempered by the stated purpose of the law to apply only in circumstances where a gift amounts to a violation of the public trust. These supporters feel that even if this reading of the language of the Amendment is not clear on its face, that the legislature, and/or an independent ethics commission created pursuant to Amendment 41 has the authority to give the language of Amendment 41 this meaning. Colorado's state legislature adopted legislation purporting to give Amendment 41 the narrow construction urged by its supporters in 2007, but opponents of Amendment 41 doubt that this language is constitutional on the grounds that it deviates from the express language of the state constitution.

Some supporters of Amendment 41, primarily conservative Republicans who are unaffiliated with the individuals who drafted and secured signatures for the Amendment, like most opponents of Amendment 41, believe that a strict interpretation of the gift ban that does not allow gifts even when they are unrelated to any official action is correct.