Post-mortem: Why Colorado’s anti-fracking measures didn’t make the ballot

North metro fracking photo

By Kelsey Ray
Republished from The Colorado Independent

The fractivists were prepared for this.

Before turning in the more than 200,000 ballot petition signatures they collected to qualify two anti-fracking measures for the November ballot, members of the Yes for Health and Safety Over Fracking campaign took photographs of every single petition page.

After Secretary of State Wayne Williams’ office announced last week that they had failed to gather enough valid signatures to qualify the ballot initiatives, the grassroots organizers settled in for hours upon hours of painstaking work. More than 30 volunteers are now in the process of finding and reviewing every disqualified signature, line by line, hoping to find enough that were unfairly thrown out to warrant a recount.

It’s possible. But the numbers don’t look promising.

Each of the seven initiatives that have qualified for Colorado’s statewide ballot this year turned in at least 140,000 signatures, giving them plenty of cushion to withstand the state’s signature verification process, which typically disqualifies at least a quarter of all names. Initiatives #75 and #78 — which sought, respectively, to give communities the power to regulate oil and gas development and to impose 2,500-foot setbacks between oil and gas infrastructure and homes, schools and hospitals — each submitted only about 107,000 signatures. After verification, the Secretary of State’s office announced that neither had the 98,452 required by state law to qualify.

Some campaigners are blaming their failure to make the ballot on what they say is bias in Republican Secretary of State’s Wayne Williams’ office, which is responsible for counting signatures and determining whether an initiative qualifies. As an example, they’re citing a tweet by Williams’ spokeswoman Lynn Bartels that cast doubt on the number of signatures the campaign turned in before they were officially counted. But despite cries of foul play during the signature counting process, the more likely truth is that Yes for Health and Safety simply didn’t turn in enough names.

Why they didn’t, or couldn’t, gather more signatures from voters is a question worthy of exploration. The answer lies in a David vs. Goliath political battle between grassroots activists and a deep-pocketed oil and gas industry, in the foibles of the anti-fracking campaign itself, and, notably, in a surprising lack of support from major environmental groups. The Colorado Independent spoke with organizers, environmental and industry leaders and political experts to get their takes on why the efforts failed.

Two years ago, activists had no trouble gathering more than enough signatures for two similar anti-fracking initiatives. In the run-up to the 2014 election, they collected about 160,000 signatures each for two ballot measures — one to establish 2,000-foot setbacks and one to grant communities the right to local control. The effort was bankrolled by Jared Polis, the Democratic U.S. Representative from Boulder who joined forces with fractivists when a fracking operation set up a drilling site across from his Berthoud vacation home.

Those measures didn’t end up making the 2014 ballot, but for a very different reason than this year.

2014 was an important year for Democrats, with both Gov. John Hickenlooper and former Sen. Mark Udall up for re-election, and party leaders worried that a fracking fight with the big-monied oil and gas industry would lead to enough uncertainty and distraction that it could have cost them those elections. Hickenlooper was especially vulnerable. As a former oil and gas geologist, his risked losing environmental votes in his re-election bid because of his well-known support of fracking. Much to the chagrin of many fractivists, Hickenlooper ultimately persuaded Polis to pull the measures from the 2014 ballot just before the petitions could be counted. But by all accounts, they did get the signatures.

Two years later, in what’s shaping up to be the hottest year on record — again — the citizens who tried to give Colorado communities more control over fossil fuel development couldn’t even make it through the petition process.

The prevailing opinion among anti-fracking activists is that their campaign failed — though, having turned in more than 100,000 signatures for each ballot measure, they don’t really consider their effort a failure — because the oil and gas industry’s opposition campaign vastly outspent them.

Yes for Health and Safety Over Fracking managed to raise $525,000 during its seven-month campaign, plus almost $200,000 worth of non-monetary contributions. These non-monetary donations came largely in the form of petitioning support, and the lion’s share of the cash raised was spent on extra paid petitioners. Though fractivists had plenty of large donations from both individuals and groups, much of the money came from small contributions of $10, $50 or $100.

The opposition raised $15 million to fight the initiatives, with almost 90 percent of that coming from the oil and gas industry. The majority of the money spent went to a communications firm called Pac/West and to Pac/West’s pro-fracking campaign, Protect Colorado. Protect Colorado funneled nearly $5 million into TV, print and radio ads urging Colorado voters to “decline to sign” anti-fracking ballot petitions and to “think before you ink.” More than $9 million remains in the anti-#75 and #78 coffers, presumably earmarked to fight the measures had they made the ballot.

Environmentalists involved in the efforts say the deep-pocketed opposition campaign was a major obstacle.

“The disparity in money applied to this challenge was so huge that it’s a wonder that it was even close,” said activist Dan Leftwich, an attorney in Boulder. Leftwich says he got repeated calls from volunteers and paid petition gatherers complaining of direct, face-to-face harassment from hired opponents while out collecting signatures. The big-monied “decline-to-sign” movement, he says, was having a chilling effect on potential petition signers. It’s quite an accomplishment that the campaign managed to turn in more than 100,000 signatures for each initiative despite “massive disparities in PR work and advertising, and in the face of repeated, systematic attempts by industry groups and shadow organizations” to disrupt and discourage them, he says.

“It was David versus Goliath, and Goliath was stomping around saying ‘Don’t sign those things,’” said Boulder County Commissioner Elise Jones, who endorsed both initiatives. Jones cited the well-funded opposition campaign as the primary reason #75 and #78 didn’t make the ballot.

But not everyone thinks the opposition made much of a difference.

Protect Colorado spokeswoman Karen Crummy says the ads were simply meant to inform voters, not dissuade them from signing petitions. “We would never pretend to tell voters to do anything in Colorado. Colorado voters have their own mind,” she said. She also says Protect Colorado takes no credit for the initiatives’ defeat. “Colorado voters deserve the credit.”

“I don’t think the decline-to-sign campaign had any impact on this whatsoever,” added Denver political consultant Rick Ridder, who has worked in support of environmental ballot initiatives in Colorado and other states. “I would put that at the bottom of the list of things that impacted the campaign.”

Topping the list, Ridder says, was a lack of time, money and organizational capability.

Ridder noted that the oil and gas industry spent significantly more on advertising during the 2014 circulation period than this time around, and yet each of the two initiatives that year collected more than enough signatures to qualify for the ballot..

He says blaming the industry’s “decline-to-sign” efforts is the campaign’s excuse for its failure to collect enough qualified voters’ signatures. “My argument would be that a well-organized and well-funded petition drive could certainly overcome the advertising of the opposition to get the signatures,” said Ridder.

A case in point is this year’s ColoradoCare campaign, a largely grassroots effort to replace the Affordable Care Act with a statewide, single-payer healthcare system. ColoradoCare advocates managed to turn in nearly 160,000 total signatures to the Secretary of State despite a well-funded opposition. One major difference between the two campaigns is that the ColoradoCare effort shelled out lots of money for paid petitioners. Another is that the ColoradoCare campaign got an early start. It began collecting signatures in May 2015, nearly a year before the launch of #75 and #78 this spring. ColoradoCare officially qualified for the ballot last November – a full year before it will go before voters this November 8th.

Tricia Olson, an organizer for the Yes for Health and Safety campaign, readily admits that this year’s local control campaign was imperfect. The initiatives weren’t filed until late January, and the petitions weren’t officially approved until early April. As a result, signature gatherers had only four months to do their work. They turned in their signatures only minutes before the August 8 deadline.

“Honestly, we intended to start sooner, but we’re real people rather than a paid corporation,” Olson said. Both she and a co-organizer had health problems in the lead-up to the campaign launch, which pushed it to early 2016 instead of November 2015, as they’d planned. “Those human things got in the way in the fall.”

Olson says that a lack of funding to pay enough petition circulators was also a problem. The campaign had a large contingent of volunteers, but even the most devoted activists have day jobs. It’s tough to run a campaign without paid signature gatherers, whom Leftwich calls “a fact of life” in any successful ballot initiative.

This year’s lack of funding stemmed largely from activists’ commitment to running a grassroots campaign — and the reasons for that committment stretch back two years.

In 2014, Polis was the figurehead behind a more than $2 million ballot initiative campaign for local control and setbacks. He invested $770,000 of his own money into that effort. His support provided not only a sense of leadership and credibility, but plenty of funding for paid petitioners.

“But that funding, we found out, was subject to the control of Jared Polis,” Leftwich said.

Faced with heavy pressure from Hickenlooper and fellow Democrats to back off his push to put the initiatives on the 2014 ballot, Polis ultimately agreed to a compromise. In exchange for the removal of both anti-fracking measures from voters’ consideration, he and fellow fracking opponents were promised the formation of the Colorado Oil and Gas Task Force, a 21-member, governor-appointed committee that would consider the issues of local control and mandatory setbacks. The Task force was made up of about one-third industry representatives, one-third environmental and local control representatives and one-third community members chosen to represent “a variety of interests.” A two-thirds majority vote was required to approve all proposals.

After five months, in February 2015, the task force submitted nine proposals to Hickenlooper, none of which directly addressed the issue of local control over fracking or of mandatory setbacks. This outcome, though touted by some politicians and industry executives as a successful compromise, was considered a failure from the point of view of environmental advocates. In the end, they felt they had been thrown under a bus.

La Plata County Commissioner Gwen Lachelt, one of the task force’s co-chairs, said then that she felt the group had let the people of Colorado down by not giving local governments more control over which areas could be drilled and which couldn’t. Boulder’s Jones called the task force process “a waste of time.” In a recent interview, Leftwich referred to it as “total, utter failure for local communities.”

Shortly after the task force submitted its proposals, Karen Dike, a member of the then-newly formed group Coloradans Against Fracking, responded to the task force’s lack of action on local control by suggesting that Hickenlooper pass a fracking ban via executive order. He declined, telling Colorado Public Radio that there was no evidence that fracking causes harm or significant danger. Dike mentioned then that the group would consider working on 2016 ballot initiatives if the governor failed to act. She became one of the two official filers for Amendments #75 and #78.

This time around, Olson and the rest of Yes for Health and Safety were intent on avoiding a repeat of 2014. They were adamant about retaining grassroots control, and that meant keeping veto power out of the hands of a single wealthy donor. It was for that reason, she says, that the campaign never sought Polis’s help. “We did not ask Jared [Polis] for the money early, which was neither his fault nor ours.”

Polis did eventually give to this year’s campaign, but his $25,000 contribution came late in the campaign, in mid-July, and was far less than the $270,000 he gave two years ago . His father, Stephen Schutz, also gave $25,000. As for why Polis didn’t publicize those donations, Olson guesses that “He didn’t want it to be about him.”

The Congressman’s office declined to comment on this story.

Olson admits to rookie campaign mistakes. For example, Yes for Health and Safety’s organizers didn’t fully understand the requirements for notarizing petitions, and at first simply told signature gatherers to take their petitions to their local banks. That led to quite a few notary errors early on. “There were thousands of signatures that we didn’t submit,” she said, noting that a paid firm would have known the protocol well in advance.

In terms of additional funding, Olson says big-money donors were reluctant to give early on because of widespread concerns about whether #75 and #78 could qualify for the ballot, and about whether voters would approve it in November.

“When you do start to raise money as a grassroots organization, not everyone believes that you can do it. Really, the big donors don’t have the faith that you can do it,” she said. Throughout March, April and May, the group’s only major monetary contributions came from Olson herself. In all, she gave $60,000 of her own money to the campaign.

As the August 8 petition deadline drew closer, and drilling-wary Coloradans perhaps started to understand the stakes, donations started rolling in. The campaign raised more than $300,000 in July alone – six times what it brought in the month before and nine times what it raised in May. That included the $50,000 from Polis and his father. The two largest single donations came from the Sierra Club’s Rocky Mountain chapter, which gave first $150,000 and then $80,000 in late July and August, respectively.

“But by then,” Olson said of the surge in donations near the end of the campaign, “it was too late.”

A look at Yes for Health and Safety’s endorsement page shows a surprising lack of support from major environmental groups. As Hunter Lovins, founder of the Longmont-based nonprofit sustainability group Natural Capitalism Solutions, put it, “The big environmental groups were just kind of missing in action, and that helped to doom the effort.” The Sierra Club Rocky Mountain chapter, Greenpeace and Food and Water Watch are all on the list, but there’s no mention of groups like Environment America, Western Resource Advocates, the Environmental Defense Fund or CREDO Action.

There were a few reasons these groups stuck to the sidelines. Part of it, says Boulder County Commissioner Jones, was a lack of solicitation.

“The campaign was really focused on trying to get signatures and not really working on mounting the campaign yet,” she said. “There wasn’t a huge push on the part of the campaign to get those endorsements.”

But endorsements entail more than organizations lending their names to a campaign website. Environmental groups, with their large donor bases and even larger mailing lists, wield plenty of political power. Their involvement — and, of course, their money and their members’ money — can make or break grassroots campaigns like Yes for Health and Safety.

“Nobody asked me to support it,” said Doug Phelps, chairman of Environment America who’s also a well-known political donor.

Phelps says Environment America was planning to endorse the initiatives, pending more research, once they qualified for the ballot. But that doesn’t mean he had high hopes. Part of the reason he didn’t support them in the signature gathering phase, he says, is just what Olson predicted: He didn’t think they could win.

“We polled it, and it was a loser” in 2014, he said. Environment America didn’t poll again this year, but Phelps suspects the results would have been much the same — and the reason why speaks to the influence of the airtime CRED buys. “If we could have a pure vote tomorrow, where nobody spends any money, [the initiatives] would be a clear winner. But once you poll and then you test what happens when people hear the other side’s argument, it gets much harder.”

How, then, can you win against such a deep-pocketed campaign? “You’d have to have a lot of resources,” Phelps said.

Given the last-minute political maneuvering that killed the 2014 initiatives, some might wonder if there was more at play this time around, too. Democrats have rallied against anti-fracking measures before; perhaps similar political pressures kept big names (and donors) from vocally supporting the measures again. But most everyone interviewed by The Colorado Independent balked at the idea.

“I sat in on a number of conversations about these measures, and I never heard anything to that effect. It’s not like there was a conspiracy where the environmental groups got together and said ‘What are we going to do about this?’” Lovins said.

Lovins says she was personally unsure about the wording of the initiatives because they were going to be “a nightmare” to administer and, if they passed, the state was “going to get sued right off the bat, full stop.” Still, she gave her name as an endorser, saying she believes in direct democracy and wanted the best for the campaign.

Conservation Colorado Director Pete Maysmith says his group had similar reservations about the campaign’s ability to succeed, and that local control over fracking wasn’t a top priority for his organization this year. Conservation Colorado endorsed the local control initiative, #75, but remained neutral on #78, for mandatory setbacks. The group donated $5,000 to the campaign in mid-July, a relatively small sum compared to the nearly $500,000 it has given over the past three years to committees dedicated to electing pro-conservation candidates, all via donations of more than $10,000.

“There was no attempt to sit it out. It’s an issue we think is important,” Maysmith said about the campaigns for #75 and #78. “We just didn’t drive the thinking around the strategy.”

From a strategic point of view, political consultant Ridder added, the presidential election may have overshadowed fracking as a priority for environmental groups, potential donors and petition signers this year. There are plenty of people, for example, who support Hillary Clinton despite misgivings about her support of oil and gas development. That, he says, could give pro-Clinton voters, donors and groups pause about supporting anti-fracking measures.

Ridder also suggested that the decline in gas prices, and the subsequent dip in new oil and gas development, may have played a role.

“Honestly, there’s less drilling in Colorado than there was. So perhaps there’s less of an acute view that we have to do this right away or else we’ll be run over.”

But for the contingent of activists who put together the Yes for Health and Safety campaign, the issue of local control couldn’t be more acute, or more pressing, regardless of the political and economic climate. They feel that it’s far past time to act on the issue of oil and gas development encroaching on neighborhoods and near schools. These are parents, teachers and community members, not politicians. To them, health and safety are the priority, and they’re unwilling to compromise based on political or financial calculations.

Phil Doe, the environmental director of the progressive group Be the Change, says mainstream environmental groups simply aren’t willing to push issues like local control hard enough, mostly because of the political risks.

“They never want to get too far out in front. A lot of grassroots people think they are the enemy,” he said. “But we’re destroying the goddamn planet; it’s time for these people” — meaning the bigger green groups — “to belly up to the bar.”

In a state like Colorado, groups must navigate the tricky waters of doing environmental advocacy under a pro-oil and gas governor. In 2014, the political pressure Hickenlooper exerted over Polis was obvious. Groups may not have been explicitly asked to lay low on fracking this year, but they surely knew the potential risks they took if they hadn’t.

Another factor is money. Many environmental groups – and politicians – glean support from donors and foundations with ties to the oil and gas industry. Laying low on #75 and #78 may have kept them from losing key backers.

“I think a confluence of multiple interests and issues tended to force the fracking issue from the forefront of many people’s agendas,” Ridder said. “I don’t think there was any concerted action to say don’t get involved. I think it was, hey, there’s other things out there, and you have a governor who is the titular leader of the Democratic Party who is pretty adamantly against a lot of this.”

Doe says that the activists involved in this year’s initiatives were willing to fight for local control of fracking regardless of the issue’s political viability. “That’s the difference between these national environmental movements and the grassroots,” he said. Whereas more mainstream groups have to go along with the tides of politics in order to retain their access to money and influence, he says, “Grassroots don’t give a shit about access.”

One could argue that access is in fact incredibly important, even for grassroots movements — and that this year’s fracking initiative failures prove it. But ask an anti-fracking organizer, and they’ll likely disagree. “We made it so far. Two more weeks, another X number of dollars, I do believe that in fact we could have made it,” said Olson.

The grassroots activists themselves knew that their campaign would be an uphill battle, and that they didn’t necessarily have the time or money to get the signatures they needed. Even in the face of potential defeat, they forged ahead for one simple reason: Amendment 71.

This November, Colorado voters will be asked to decide whether the state should make it even harder for citizen-backed initiatives to qualify for the statewide ballot. Amendment 71, also known as “Raise the Bar,” seeks to limit the number of initiatives put before voters by increasing the procedural requirements. Instead of having to gather ballot petition signatures totalling just 5 percent of all Colorado voters (currently 98,452 signatures), as the law currently requires, petitioners would have to gather signatures from 2 percent of voters in each of Colorado’s 35 state Senate districts. As the name suggests, the amendment would raise the bar to qualify for the statewide ballot even higher. Voters in every Senate district would essentially have veto power if they refused to sign on to ballot petitions.

The amendment has the support and financial backing of industries across Colorado, particularly the oil and gas industry, which has already given almost $1 million to the campaign. Pro-business group Colorado Concern has also donated generously, along with state associations of dairy farmers, realtors, casino operators and hotel owners.

Raise the Bar is touted by its proponents as a way to “protect our constitution.” But grassroots organizers know that it could effectively prevent them from ever successfully qualifying an initiative for the ballot. The extra time, organization and travel expenses required to mount a comprehensive, statewide signature gathering campaign would exclude all but the most well-funded efforts. They estimate the cost of such an effort to be in the millions.

Olson says Raise the Bar was a major factor in the decision to push initiatives #75 and #78 this year. Quite simply, she and other activists worry that the next election could be too late.

“We knew that there were forces trying to eliminate or destroy the initiative process,” she said. “We knew we had to do it now.”

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