One of the worst things a government can do to a free people is force them to speak. Free speech is the right to say what you believe, but also the right to not say things you don’t believe. The government should never be in the business of compelled speech — and especially not when it’s false compelled speech.

Because we believe deeply in First Amendment rights — as Coloradans of all political parties do — Advance Colorado sued the state of Colorado for violating the First Amendment. When the government doesn’t respect constitutional boundaries, someone has to stand up to legislative overreach. Here’s a little history to explain the problem we’re facing.

In 2020, Coloradans voted to lower the state income tax. Immediately, alarm bells went off in the Capitol. Liberal legislators quickly realized that their views on fiscal policy were not shared by a majority of the electorate, even if that very same electorate had voted them into office. It was clear to them that voters would repeatedly support tax cuts unless they stepped in and rigged the citizens-initiative process.

The citizens initiative process in Colorado is a big part of how we pass laws. Many states don’t grant any type of lawmaking authority to average citizens, but here in the independent West, we do. It’s rooted in our state Constitution. Article 5 of the Colorado Constitution says: “…but the people reserve to themselves the power to propose laws and amendments to the constitution and to enact or reject the same at the polls independent of the general assembly…”

Legislators don’t always know best. Here in Colorado, we recognize that people should have a large voice in our government. And, if an idea is good enough, it can resonate with voters across the state. Citizens have banded together over the years to pass statutes and constitutional amendments on a variety of topics. It’s a basic idea that supports the foundations of democracy: let the people speak!

Ballot guardrails

Of course, there are laws that govern how the ballot title is set for citizen initiatives. You can’t just ask something like, “Do you want to cut your taxes?” Or “Should we start a better mental health program?” Instead, ballot titles must summarize the single-subject intent of the proponents of that ballot measure with clear language that voters can understand. Voters must be able to know what their “yes” or “no” vote would do.

Another essential piece of this is that the ballot language must reflect the intent of the initiative’s sponsors — not just the views of the majority party in the Colorado General Assembly. It’s not the Legislature’s job to write the ballot title for citizen-sponsored initiatives.

Sadly, it was just a matter of time before liberal legislators decided they’d had enough of the people speaking up. In 2021, Rep. Chris Kennedy, a Lakewood Democrat, chose to take matters into his hands. He sponsored HB-1321 (the bill that is now law and the subject of Advance Colorado’s lawsuit). Rep. Kennedy admitted this bill was really about altering the outcomes of elections, calling it a “stop-the-bleeding bill.”

What we’ve seen, increasingly, is that Republicans, who have not been successful at winning majorities here at the Capitol in recent years, are increasingly turning their attention to the ballot and using that as a way to try to get government closer to the size that can be drowned in a bathtub. We’d prefer that government not drown in the bathtub. We’d prefer that ballot measures don’t continue to chip away at our ability to fund our public schools and the other priorities that the voters of the state care about.

Well, whether Kennedy or the state of Colorado like it, their “preferences” aren’t what citizens initiatives are about. These initiatives are an opportunity for voters to sponsor an idea — like a tax cut — and ask their fellow voters if they agree, in honest, clear language.

Intended to deceive

HB-1321 did away with the “honest” part of that. It forces any citizens initiative that cuts taxes to say in the ballot language that the cut will come from education, health care, and higher education — even if that is blatantly false and mathematically impossible.

In a perfect case of “rules for thee but not for me,” the Legislature didn’t apply this same standard to their own referendums that appear on our ballots (see Proposition HH). No transparency needed for them!

This forced ballot language is “poison-pill language.” This legislation mandates that the ballot title “must begin” with this language and that it must state that the tax change “will reduce funding” for these specified programs.

We know that tax cuts could come from an infinite combination of places. Besides, revenue often increases after a tax cut. For example, after the 2020 income tax cut, state revenue went up so much that we received $750 TABOR refund checks last year. Therefore, making voters believe that education funding will be cut, when that might not be the case at all, is completely deceptive.

Moreover, it’s compelled speech by the government for a specific purpose — to make these citizen initiatives lose. In our lawsuit, we argue that it is unconstitutional compelled speech and violates citizens’ “First Amendment right to present their message undiluted by views they [do] not share.” 303 Creative LLC v. Elenis, No. 21-476, 600 U. S. __ (June 30), slip. op at 8.

Real impact

In our lawsuit, we highlight two examples of ballot measures we introduced that received this biased ballot language. The first was for a property tax cap. When Gov. Polis signed HB-1321, he wrote a two-page signing statement explaining his interpretation of the law. The signing statement starts out by saying:

A citizen’s right to initiate a measure for the ballot is sacrosanct … Direct democracy is a key feature of Colorado’s political framework — a framework that was in large measure shaped at the ballot by the citizens of this state — and one that I will always champion and protect as governor of Colorado.

If the governor really believed this, he wouldn’t have signed HB-1321 in the first place. But there was another part of the signing statement that said, “This bill applies only to measures that increase or reduce state or local tax revenue by a determinable amount. Therefore, this legislation does not apply to measures that seek to slow the rate of increase of revenue …” This is a fancy way of saying it doesn’t apply to caps on revenue growth.

Nevertheless, the Title Board — which oversees setting the ballot language — decided that the biased language would still be added to any measure that caps revenue growth. The Colorado Supreme Court, then, upheld that interpretation of the law.

The second measure we introduced is the clearest example of the state of Colorado mandating false compelled speech. Our measure would cut the state sales tax by $17 million for just one year. In that same year, Colorado taxpayers are projected to receive just under $2 billion in TABOR refunds. In other words, a tax cut would have to be at least $2 billion before it impacted any state program, let alone education, health care, or higher education. Nevertheless, the mandated ballot language said it would cut from these three programs. This is a blatant lie.

As CU Law Professor Helen Norton has said:

“But the government’s lies are also different from our own lies in important ways that can and should affect their legal treatment … The government is unique among speakers because of its coercive power as sovereign, its considerable resources, its privileged access to key information, and its wide variety of speaking roles as policymaker, commander-in-chief, employer, educator, health care provider, property owner, and more.”

Because the government has these unique characteristics, it should be held to a very high standard when it comes to honesty — especially on a ballot. Voters trust that what is written on their ballot is truthful. The language mandated in HB-1321 falls far below that standard.

Poison-pill bill

When the facts of our sales tax measure were presented to the Title Board, they said they had no discretion to edit or eliminate this language even under circumstances where they do not believe that it accurately describes the measure. Basically, they said their hands were tied by HB-1321.

Before HB-1321 was officially signed into law, one last income tax cut had its title set with simple, straightforward language. That measure passed with 65% of the vote. Kennedy was correct to assume that voters would continue to cut taxes if given the opportunity. But in Colorado, that’s up to them.

In Gov. Polis signing statement, he also pointed out that “… partisans on both sides of the aisle have long lists of examples of laws they don’t like that passed at the ballot.”

While we can agree on that, we should also agree that citizens have the right to bring those ideas without interference or mandated false compelled speech from the state.

Colorado law says: “The title for the proposed law or constitutional amendment . . . shall correctly and fairly express the true intent and meaning thereof.”

We agree. HB-1321 should be struck down, and the First Amendment should be upheld.

Michael Fields is the president of Advance Colorado Institute