“The best defense against usurpatory government is an assertive citizenry”

William F. Buckley

Paul Menter

Paul Menter

Occasionally I think the law and what people want, are materially misaligned. Sometimes the issues are serious and sometimes they are just downright humorous.

For example, HIPAA, the Health Insurance Portability and Accountability Act of 1996, mandates safeguarding of individual medical information. Yet many Americans have no qualms extolling through social media the depth and breadth of their latest illness or surgery. What good does it do for your doctor to keep your medical conditions private if you describe them in detail online?

The Computer Fraud and Abuse act of 1986 makes it technically illegal to access unsecured Wi-Fi without permission. More precisely this act, which was adopted before Wi-Fi was a thing, makes it illegal to access a computer without authorization. The problem is the act does not define what “without authorization” actually means. So next time you wander into a Starbucks to poach Wi-Fi without buying a $7 latte, you might just get locked up.

Our over-regulated world is filled with technically in-force laws to which most people pay little attention. There are websites dedicated to the subject. Our legislatures are filled with lawyers, who are trained to draft regulations and laws. So that’s what they do. And, some of those laws end up usurping voters’ rights without them even knowing it.

If this November’s statewide ballot is any indication, a lot of voters, and lawmakers as well, are bypassing the age-old process of representative democracy, and asking the voters to make a lot of their own decisions. The ballot contains 13 separate statewide measures. Nine constitutional amendments and four statutory propositions are also on the ballot. These ballot measures run the gamut from lowering the age requirement for members of the state legislature, to limiting oil and gas drilling, to funding transportation projects, to….

Well you get the idea. This year’s state ballot information booklet does not yet challenge Leo Tolstoy’s “War and Peace” for volume, but at 190 mostly single-spaced pages it’s not People Magazine either. Don’t expect to gain a complete understanding of all these issues from a single trip to the loo. My advice is read it cover to cover, twice, and then vote.

More locally, like a salmon swimming upstream against this state-wide wave of populist sentiment, the city of Aspen is actually asking its voters to relinquish the ability to vote on certain matters. Aspen’s ballot questions 2B and 2C ask the voters to give up their ability to vote on “enterprise” fund bond issues and franchise agreements.

The city argues that placing approval of “enterprise” fund (government operated services that get their funding from fees rather than taxes) bond issues in the hands of city council as opposed to the charter, where this authority has resided since 1970, is consistent with the 1992 TABOR amendment to the Colorado Constitution. And as for franchise agreements with major corporations like Comcast, Holy Cross Energy, and Source Gas, the city argues that the ballot measures are complicated, and don’t attract much attention. And putting them in the Council’s hands eliminates the potential for legal issues if the voters were to fail to approve them.

The irony of the city of Aspen using the TABOR, which guarantees voting rights on all tax supported bond issues and the creation of new taxes, as justification to ask voters to relinquish their separately guaranteed voting rights, is not lost on me. TABOR is a four-letter word in Aspen government. Just last May the city celebrated its narrow Supreme Court victory in Colorado Union of Taxpayers v. City of Aspen, which defined Aspen’s grocery bag charge as a user fee rather than a tax requiring voter approval. And remember, Aspen’s charter provision granting voter authority for “enterprise” bond issues predates TABOR by over two decades.

The voters provide a necessary check and balance on the reasonableness of a bond issue’s purpose. Bond investors only care that the city can pay back their interest and principal. They don’t care what the debt is actually used for. In 2008 the city issued $3.9 million in voter approved “enterprise” bonds for the Castle Creek Energy Center that it never built. Bond issues for the city’s water, electric and stormwater enterprises, could cost affordable housing owners as much or more through higher utility bills than comparable general obligation bonds would cost them through increased property taxes. Why the city council did not consider these issues before placing 2B on the ballot is anyone’s guess.

As to the question of franchise agreements, nothing warms the cockles of my heart more than the government asking me to give them back my ability to vote because “multiple legal issues” might arise if I don’t vote the way they think I should. That sounds like code for something else, but I’m not precisely sure what. City officials and voters both should remember that irrespective of their alleged complexity, franchise agreements address a very simple principlel. They grant authority for private companies to use the public rights of way for their profit-making ventures, and it is the voters who own the rights of way, not the city council and certainly not city administrators.

In the end, when governments try to usurp, voters must assert themselves. Aspen voters should vote no on 2B and 2C and retain their 48-year-old charter guarantee to decide enterprise bond issuance and franchise approvals.