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Transparency concerns linger after Colorado Democrats release secret survey results

The chamber of the Colorado House of Representatives is full of people. This is a wide shot, showing various desks and people milling about under a brightly lit chandelier.
Lucas Brady Woods
Colorado lawmakers in the House of Representatives work on April 13, 2023. Democrats released the results of a secret survey they took last month to help decide which bills should get a piece of the state's limited budget.

Democrats at the state Capitol have released the results of a secret survey they filled out last month to help them decide which bills should get a piece of the state’s limited budget.

The documents, which KUNC obtained through an open records request, reveal how lawmakers anonymously ranked 140 bills while the public wasn’t watching.

Lawmakers have withheld the results of the survey in previous years, but party leaders agreed to unveil the latest batch of results months after transparency advocates alleged their private bill-ranking system violates the open meetings law and "deprives the public of observing decision making in real time."

Democrats ranked new wildfire detection cameras, mental health programs and energy efficiency initiatives on the top of their bill list this session.

But the spreadsheets and bill rankings leave many questions unanswered, including how individual lawmakers cast their votes in the online survey.

Why did bills aiming to improve access for people with disabilities and creating a new office addressing eating disorders rank near the bottom of the survey results?

And why did bills aiming to lower the price of EpiPens and create new mental health screening programs at public schools rise to the top?

The survey results don’t immediately answer those questions.

Lawmakers fill it out anonymously. The public isn’t invited to watch the process play out. The organization that runs the survey process for lawmakers is not responding to questions from KUNC.

Lawmakers call it quadratic voting, and it's been used to help guide Democrats' budget decisions since 2019.

“It's a secret ballot, essentially,” State Sen. Chris Hansen, D-Denver, said in a 2020 interview with RadicalxChange, the nonprofit that helped him set up the private voting system website. “You're filling this thing out in your pajamas, you know, in the comfort of your own home sitting by yourself. And so, you know, we get a better indication of people's actual preferences.”

Transparency advocates say even though the outcome of the secret ballot process is being made public for the first time, the bill-ranking system still runs afoul of the open meetings law and shuts the public out of a process that lawmakers use to help decide how to spend their tax dollars.

State law also prohibits elected officials from using secret ballots to make decisions.

Scott Franz/Capitol Coverage
The state Capitol is pictured at dawn in January, 2021. Democrats released the results of their secret quadratic voting process after withholding them in previous years.

“These are some of the most important decisions that legislators make,” said Jeff Roberts, the head of the Colorado Freedom of Information Coalition. "And I think the public is entitled to know, and probably a lot of people want to know how their legislators weighed in on various measures that cost state tax dollars.”

Democrats took the secret survey on March 24 to rank 140 bills that need some amount of state funding to pass.

Lawmakers call this secret survey "quadratic voting". Each Democrat is emailed a private and unique link to an online survey. They are given 99 digital credits and asked to “spend” them by clicking on the bills they support.

Sen. Hansen told KUNC last year it lets lawmakers weigh in on legislation without feeling pressure from their peers.

“One of the great things about the method is that it is, you know, sort of a blind survey,” he said. “And so we're getting people's unvarnished, uninfluenced version of what they would really like to see funded.”

Hansen said the results of the survey "highly correlate" to which bills end up passing.

After transparency advocates learned that the survey had become part of the fabric of decision making at the Capitol, they alleged last fall it violated the state’s open meetings law.

Some lawmakers have since defended the process. Others, including Hansen and the speaker of the House, are not responding to KUNC’s interview requests this month to learn more about the process.

Top Democrats at the Capitol say quadratic voting doesn’t actually amount to an official vote. Some are also starting to downplay its role in the decision-making process.

“This survey is just one data point to provide information but doesn't actually determine the outcome of the bill,” Sen. President Steve Fenberg, D-Boulder, said. “So there's no real accountability concern in my mind because a bill doesn't live or die based on the outcome of the survey."

But other lawmakers, including former state Sen. Kerry Donovan, have raised concerns about its growing influence and said the results can determine which bills live or die.

“Can it get manipulated by the lobbyists? It certainly can,” Donovan told KUNC last year. “Is it, you know, away from the the important sunshine of the public and the press? It is.”

Elusive results

Democrats have withheld the results in previous years, claiming the documents are not public records.

KUNC submitted a records request for three years' worth of results last year, and the request was denied.

But following allegations from transparency advocates that the secret ballot process runs afoul of open meetings laws, Sen. Fenberg and House Speaker Julie McCluskie agreed to release the survey results for the first time even as some of their colleagues continued to deny requests for them.

“I think it is protected 'work product,' but it's something that, like, I don't think needs to be hidden,” Fenberg said this month. “I'm totally comfortable just providing (the results) to people to the extent that folks find it interesting.”

Fenberg and McCluskie both said in their response to the records request for the results that they do not consider them to be public documents.

That suggests lawmakers could revert back to withholding them in future years.

Jeff Roberts, the head of the Freedom of Information Coalition, said this month the release of the survey results does not make the process transparent enough. He said the public should be able to see how every lawmaker filled out the survey.

We stand by what we said in our letter to legislative leaders last year about how the use of this (quadratic voting) process we feel violates the open meetings law in multiple ways,” he said. “The public is entitled to know how their elected officials, their legislators stand on certain issues when they actually do cast a vote for them. And the open meetings law bars the use of secret ballots. Caucus meetings are supposed to be open and and, you know, voting or communicating electronically like they're doing this. There's not a way for the public to participate in that, to observe that.”

You can view the raw documents from the open records request as a PDF here, or see them embedded below.

Scott Franz is an Investigative Reporter with KUNC.
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