Like many folks, I’ve followed Senate Bill 181 with interest as it wound its way through our legislative process. Now approved by the state Senate, it awaits a likely signature from Gov. Polis. And like many of you, I can’t help but think about James Madison’s theories on representation, right?
Readers will recall that back in the 2018 election, Prop 112, which would have resulted in greater distances between various drilling operations and homes, schools, and water sources for new wells in Colorado was defeated. I’ll now once again irritate my more liberal friends when I tell you that I voted against it. I have no love for the oil and gas industries, and I have a long background of dealing with environmental matters. But 112 was well-intended, but poorly executed. I worried that we might end up with 64 separate and oft-conflicting sets of regulations, one for each county. That would, I worried, create an impossible-to-navigate road map for a variety of industries, while doing little for overall environmental protections. Leaking fracking fluid, for example, does not respect county borders as it moves through the ground.
We now find ourselves with a new bill, the aforementioned Senate Bill 181 which will soon be the law of the state. I’m far more contented with this legislation, though there are important issues of oversight and regulation that must be addressed.
We are hearing selective outrage from some, who argue that the state Legislature, now in Democratic hands, is deliberately thwarting the “will of the people” by regulating in an area where the voters had already spoken.
Which brings us, of course, to James Madison.
As far as I know, Mr. Madison did not operate any oil wells in Colorado. But his 18th century wisdom can help us explore what we should be doing, or not doing, about wells. Regular readers will recall earlier references to the Federalist Papers — a collection of writings by Madison, Hamilton, and Jay — about the core issues involved in the then-brand-new Constitution. The wisdom first pops up in Fed #10. I’ll pause here while you reread that one.
In Fed 10, Madison lays out an impressive argument, making the case that the freedom and liberty of our citizens are best protected in a large and diverse nation, rather than in small groups where local bigotries and passions might be able to get wrong-headed policies passed into law. Madison argued that large republics, such as the one created by our Constitution, are better protection for everyone, because factions (think “special interest groups”) would be unable to impose their will, as other groups would rise up to oppose them. That’s how we could end up with 64 county “oil commissions” under Prop 112, which would likely range widely in policies and regulatory requirements. The defeat of Prop 112 was a signal, supporters argued, to the state government that the people of Colorado did not want that patchwork system of governance for oil.
It’s a powerful argument, and is one that I agree with, mostly.
Should a state legislature be able to undo what appears to be the expressed will of the voters? Prop 112 was a rejection of county and city control of oil and gas production, but the soon-to-be-signed 181 will impose a form of such governance. Is that ok?
Cut back to Madison. Mr. Madison also argued for our bicameral form of representation. The House, he reasoned, with elections every two years (under the old Articles of Confederation, terms were only one year), and those frequent elections would force House members to keep a close ear to the will of the people and vote the way the majority thinks. But the Senate, Mr. Madison posited, would be less susceptible to popular passions due to a six-year term. The Senate would, it was argued, serve as the saucer to cool the hot coffee passed up from the lower House. Does that make our Senators “saucer people?” Could be.
Do you want your representative to always vote the way the majority wants (the “delegate” theory of representation)? Or, should our representatives, whom we chose to represent us and who would have access to more information and more expertise, work in our best interests long-term (the regent theory), even if at the moment, the voters disagree?
Those Founders turned out to be pretty smart. Our state representatives are either being very wise or very undemocratic on oil and gas. Your own biases will help you decide which is right and which is wrong. Oh, and watch out for the saucer people.
Hal Bidlack is a retired professor of political science and a retired Air Force lieutenant colonel who taught more than 17 years at the U.S. Air Force Academy in Colorado Springs.