Denver Bar Association
March 2005
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The Morality of the Legislative Process

by Ken Gordon

by Sen. Ken Gordon

In 1963, Lon Fuller, who at the time was a professor of jurisprudence at Harvard Law School, wrote a book called The Morality of Law.

Fuller’s book was not a conventional book about morality. What he said was that if you wanted to write laws, regardless of the substance, there was a certain framework and process that could make you successful. For instance, it would be important to keep laws relatively consistent over time so that people could know what the laws were. It would be important that laws were written clearly so that people did not have to guess at their meaning. Laws should not conflict with each other and they should not be retroactive in application.

I recently ran across this book and it made me think about a possible "morality of the legislative process." I have been in the Colorado Legislature for 12 years and I believe this is a topic that can use some attention.

In the book I will write in my future spare time, there will be at least three major points to the "morality of the legislative process."

The first would be respect for the public’s involvement with our process. The primary point of access for the public in legislation is the committee. This is where the public is allowed to testify for or against legislation. In Colorado’s recent past, we have seen bills scheduled for committee hearing with no notice to the public. We have seen committee members use a procedural device called a "super motion" to prevent testimony in committee. I have seen committee chairs who ended hearings at 5 p.m. with witnesses who had traveled hundreds of miles yet to testify.

If legislators understood the committee process as a crucial interface with the public and if they actually respected the public’s role in the process, the abuses I mention above would not occur.

The second piece in my legislative morality would be respect for the minority party. In Colorado, the Democrats recently captured control of both the House and the Senate. I was elected to the job of Majority Leader in the Colorado Senate. Our lead in the Senate is only 18 to 17, but with that narrow lead, we get a majority in every committee. Every committee chair is a Democrat and the president of the Senate, who assigns bills to committees, is a Democrat. We have the power, should we decide to use it, to enact all of our Democratic legislation and defeat all the Republican legislation. We can act like the Republicans don’t exist, and it is tempting.

There are a number of Democrats who have unrequited feelings of revenge stemming from the partisan redistricting battle that finished the 2003 session, who would like nothing more than to treat the Republicans like they treated us. However, current Senate Democratic leadership thinks this would be wrong.

Even though we are now in control, I am not unmindful that approximately half of the people in this state vote Republican. If we treat the Republican members of the legislature with
disrespect, we are treating their constituents with disrespect. Because most of the problems in Colorado affect Republicans and Democrats equally, it seems that the most promising approach to solve Colorado’s problems is to listen to people from across the political spectrum.

The third item in my discussion of legislative morality is leadership. Polling has become so prevalent recently that almost no one makes a move without running a poll to see how the public thinks of the topic. The problem with this is that if you ask the public how they feel about, for instance, the budget, they will tell you that they want lower taxes, more services and a balanced budget.

You hear some candidates saying the following: "I am for better roads, smaller class sizes, more health care, and lower taxes." Unfortunately, not enough of the public can recognize the fallacy,
so the dishonesty in this pandering is not self-correcting. In my view, a legislative leader needs to tell the truth even when it is not popular and needs to lead even when courage is needed.

In recent Colorado history, all of the majority members of the legislature voted for a selfish partisan congressional redistricting plan that was forced through in the last three days of the 2003 legislative session. Eventually — after the taxpayers had paid hundreds of thousands in legal fees — the Colorado Supreme Court found the redistricting unconstitutional. In the next election, the voters replaced enough majority party members so that the leadership in both houses changed.

There were a number of majority party members who privately expressed to me that they were uncomfortable with the redistricting fiasco, but none of them voted against it. If only one had told leadership that they would not go along it would have saved their party from a disaster, but there was not one to do this.

If we can move toward these forms of procedural morality in the Colorado Legislature, I believe we will end up with better substance for the citizens, as well. This is my goal.

— Ken Gordon
New Majority Leader in the Colorado Senate

Sen. Ken Gordon earned his law degree from Boston University. As a member of the House of Representatives, his Plain Language Law, requiring that new laws be written clearly, received Westword's "Best New Law of 1993" award. In 2000, he was elected to the Colorado State Senate. He became Assistant Minority Leader in 2003 and is now the Majority Leader. If you would like to receive legislative updates, visit http://www.kengordon.com.


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