Here’s what really sank Hickenlooper’s special session
Author: Kevin Grantham - October 6, 2017 - Updated: October 6, 2017
That Gov. Hickenlooper’s surprise special session didn’t produce tangible results shouldn’t come as a shock to anyone who saw the step-by-step way he followed a recipe for failure. Start with a total lack of pre-planning and bipartisan consultation, season liberally with political shenanigans, top with a dash of demoguagery and voila! – you have all the makings of the fiasco that followed.
Nor are post-session accusations of “partisanship” and “obstructionism” a surprise. Some in the other party seem incapable of taking responsibility for the disasters they script — Obamacare being the most recent example. They make a mess. It then falls to Republicans to help mop up. If we don’t enthusiastically grab a bucket and start swabbing, we’re “partisan” and “obstructionist.”
The two-day session need not be a complete waste of time, however, if participants and the public come away from it with a better understanding of why the “easy fix” we were supposed to make isn’t so easy to fix at all, if we want to correct the problem in a principled, constitutional, lawsuit-proof way.
Here’s context that highlights the crux of the problem.
The session was called to “fix” a tax policy problem created by a drafting error in a major transportation and hospital funding bill, SB-267, which passed last session. Professional staff made an innocent but critical drafting mistake, which no one in the legislative or executive branches caught, that precludes certain special taxing districts from collecting marijuana sales taxes they’re otherwise due.
It was an easy mistake to make, given the size and complexity of the bill. But it’s not as easy to correct as the governor and others claim, because Colorado’s Taxpayer’s Bill Of Rights (TABOR) — which is written into the Constitution lawmakers swear an oath to uphold — isn’t a two-way street when it comes to crafting tax policy.
TABOR gives the General Assembly statutory authority to make tax policy changes that remove or lower taxes, but actions that restore, reinstate or increase taxes require voter approval. Those rules aren’t waived in cases where the change of policy is made mistakenly, as happened in SB-267. Nor is some waiver granted when special districts already voted to approve the tax collections, as these have. There’s our dilemma: how do we correct the problem without skirting the law and the Constitution?
Now, there’s no shortage of TABOR-bashers in Colorado, because it places guardrails on the ability of politicians and government entities to tax and spend at will. It’s been under constant legal and political assault since voters approved it in 1992, via an ingenious array of end-runs and work-arounds that continue to this day. So there’s no shortage of individuals and interests advising lawmakers that we shouldn’t let an illegitimate “obstacle” like TABOR get in the way of correcting an innocent clerical error.
They have no problem undermining TABOR at every turn, or devising work-arounds when it proves inconvenient, so we shouldn’t either, is the message we were presented with when called back to Denver by the governor. They must have known this line of “reasoning” wouldn’t fly with most Republicans. We’re defenders of TABOR who take seriously our oath to defend the Constitution, even when it’s politically inconvenient to do so. But they plowed ahead anyway, deaf to our obvious objections.
Our opposition to the special session was well known to the governor in advance. He knew we had philosophical and constitutional questions about the so-called fix. We wanted more time to find a constitutional solution to the problem. Yet he persisted in calling the session, apparently hoping that we would be forced by the pressure of an “emergency” to join him in yet another effort to skirt TABOR. It was an arrogant move that failed to play out as he hoped.
So where do we go from here? Back to work, as always. The three months between now and January give us the time we need to work-through issues that were impossible to resolve in a few days. We understand that the bill-drafting mistake must be remediated, and we regret any hardship the glitch is causing for special districts. But we’re also committed to finding a constitutional solution, which addresses the problem without violating our oaths of office or further complicating matters by getting us sued for a TABOR violation.