Rocky Mountain News Editorial

2/18/07

Senate bill takes proper approach to 41 

      Round One of "what does Amendment 41 really do?" opened finally at the legislature last week. 

      The good news is that Senate Bill 188, by Senate President Pro Tem Peter Groff, D-Denver, and Senate Minority Leader Andy McElhany, R-Colorado Springs, hews closely to the plain language of the amendment - with one exception we noticed, which we'll deal with later.

      Round Two, House Bill 1304 sponsored by Rep. Rosemary Marshall, D-Denver, and Sen. Steve Ward, R-Littleton, takes much greater liberties with the amendment, seeking to cure defects that can be expunged - in our view - only through another constitutional measure. We'll address this bill in a later editorial.

      Meantime, fortunately, SB 188 largely leaves the amendment alone. That's all the legislature is supposed to do. A provision of the amendment instructs lawmakers to pass a bill to "facilitate" the implementation of 41, "but in no way shall such legislation limit or restrict the provisions of this article or the powers herein granted."

      SB 188 states how appointments will be made to the five-member independent ethics commission that 41 created. It also gives the commission the authority to hire staff and sets timetables for the panel to hear and rule on ethics complaints brought before it.

      Where we believe the bill strays is in a paragraph dealing with subpoenas.

      Amendment 41 says, "Members of the independent ethics commission shall have the power to subpoena documents and to subpoena witnesses . . ." Not a majority. Just "members." But the bill clearly tries to discourage subpoenas from single members. It says if one member subpoenas a witness but the ethics complaint doesn't pan out, that official will have to reimburse the witness' legal costs. If all the commissioners authorize a subpoena for a similarly futile complaint, that witness has to pay his own legal tab.

      As a matter of policy, we like this idea. Individual ethics commissioners should not be able to use subpoena powers to harass their political opponents or go on fishing expeditions looking for dirt on advocacy groups. The authors of Amendment 41 made a terrible mistake - one of many - when they decided to grant subpoena power to single commissioners.

      But the amendment does not distinguish between lone commissioners and the entire commission for purposes of reimbursing witnesses. The legislature should either reimburse all witnesses in futile complaints, or none.

      This quibble aside, SB 188 deserves to become law - and any measure that would gut the amendment legislatively should face a swift demise.