This op-ed by Quentin Young appeared on Colorado Newsline on February 16, 2023.
Democratic members of the Colorado Legislature during previous sessions appear to have violated the state’s open meetings law. And they’re poised to do so again this year, even though they’ve been warned.
Leaders of the Democratic caucus deploy an online survey to determine which bills that spend money advance or die. As was highlighted by reporting from Scott Franz of KUNC, the survey is secret.
No public debate. No transparency. No accountability.
And since it’s conducted by a party that has enjoyed majority control of the Colorado House and Senate in recent years, the private poll is influential.
Lawmakers say the secret survey produces better legislative results. That would be fine if the scope of consideration were defined by the walls of the Capitol. But it’s to constituents outside those walls that lawmakers ultimately must answer, and home-district residents can gauge the performance of their elected representatives only to the extent they can see them in action.
When lawmakers work in the dark, Coloradans can’t judge their actions. That’s bad.
The secret survey appears to violate Colorado’s sunshine law. That’s worse.
The survey was started with decent intentions. At first, it even earned approving press coverage and, paradoxically, was heralded as an effort to make bill prioritization “more transparent and more democratic,” according to The Colorado Sun.
When lawmakers vote on whether a bill lives or dies beyond the public’s view, residents are deprived of vital information about how their elected representatives are performing.
Most money the state spends is handled in the Legislature’s huge annual budget bill, but a much smaller — though highly coveted — chunk of money is doled out through individual bills. Scores of proposed measures compete for this money. When tallied, their total is far more than the amount available, leaving lawmakers with the question: How do we choose winners and losers?
In 2019, Democratic state Sen. Chris Hansen, then chair of the House Appropriations Committee, decided to try a new method called quadratic voting. Previous systems were said to be marred by self-interest, the undue influence of lawmaker-to-lawmaker lobbying, and the dominance of party leadership’s preferences.
Quadratic voting promised to better reflect the legislative body’s authentic collective preferences.
When the session approaches its final weeks and the bill backlog grows massive, lawmakers receive a link to the survey and tokens to vote for their favored legislation. One vote for a particular bill costs one token. But two votes for a bill costs four tokens, three votes nine tokens, and so on — the cost in tokens being the square of the number of votes.
“Fundamentally, quadratic voting addresses the problem of the tyranny of the majority, a standard criticism of democracy,” Glen Weyl, a Microsoft Research economist credited with coming up with quadratic voting, was quoted as saying by Wired.
Hansen, who has referred to the system as a “secret ballot,” told Wired that the system worked. “There was a pretty clear signal on which items, which bills, were the most important for the caucus to fund,” he said.
So, we know what the caucus thought was important. But what about individual lawmakers?
It’s a crucial question, given what Colorado law says about open meetings.
“Neither a state nor a local public body may adopt any proposed policy, position, resolution, rule, or regulation or take formal action by secret ballot,” the law says, specifying that a secret ballot “means a vote cast in such a way that the identity of the person voting or the position taken in such vote is withheld from the public.”
When lawmakers vote on whether a bill lives or dies beyond the public’s view, residents are deprived of vital information about how their elected representatives are performing.
This was part of the basis of a formal objection to the survey submitted by representatives of the Colorado Freedom of Information Coalition, who argued the process “violates both the spirit and letter” of Colorado’s sunshine provisions.
Hansen told the Sun that the old way of doing things was frustrating and opaque. “It was just kind of this back and forth between leadership and key caucus members, and everyone was kind of pushing their thing, and we’re lobbying each other, and whatever emerged from that sausage factory got funded,” Hansen said.
OK, so why not use the survey but make it public? Democratic leaders denied a KUNC request for records of survey outcomes, and Hansen told the outlet that “the value of the survey is higher if we can use it internally.”
Voters will wonder whose values he’s talking about. Those of officials never totally line up with those of constituents, which is why we have laws — for open meetings, for office-holders having to stand for elections — to ensure the interests of the people always come first.
If sunshine really does degrade the value of the survey, too bad. Such a disadvantage is surely outweighed by transparency’s advantage to the people. And if lawmakers are uncomfortable with their survey responses being public, they should reconsider their capacity to serve in elected office.
KUNC‘s latest reporting indicates that Democratic leaders continue to defend the secret survey and might use it again this year. That would be a mistake.
And it would likely also break the law.