Losers outnumber winners in Colorado Legislature’s brief special session on pot tax

Author: Ernest Luning - October 3, 2017 - Updated: October 3, 2017

Colorado's Capitol dome gleams in the sunlight in this picture taken on Opening Day of the Legislature, Jan. 13, 2016. (Photo by Ernest Luning/The Colorado Statesman)Colorado’s Capitol dome gleams in the sunlight in this picture taken on Opening Day of the Legislature, Jan. 13, 2016. (Photo by Ernest Luning/Colorado Politics file)

It’s safe to say no one is happy with the special legislative session that convened Monday and concluded Tuesday at the Colorado Capitol.

Gov. John Hickenlooper has faced nearly unified opposition from Republican lawmakers since calling the special session in order to come up with a “simple fix” to a drafting error in complicated legislation he signed earlier this year.

Everyone missed what everyone agrees was an unintended consequence of Senate Bill 267, an omnibus fiscal measure — passed in a flurry in the final days of the regular session — that changed how the state handles all sorts of fees and taxes. The bill boosted the state tax on recreation marijuana sales but didn’t change the wording to let some special districts collect their tax on the same sales.

The goof, discovered in July, costs metro Denver’s Regional Transportation District around $500,000 a month, for instance — in all, nine districts around the state stand to lose a total of roughly $1 million a month. All it takes is a quick, common-sense fix to restore the tax, Hickenlooper and Democrats said, but Republicans disagreed, declaring that the Taxpayer Bill of Rights prohibits lawmakers from putting a tax in place once it’s been erased from the law, whether intentionally or due to an oversight. Democrats argued the contrary, citing court decisions and legal opinions, but Republicans weren’t moved.

After plenty of pre-session jousting, the GOP stood firm and killed a pair of identical bills to correct the expensive mistake, with some maintaining that the Legislature needs more time to determine whether any proposed fix passes constitutional muster.

While Republican leaders got what they wanted — no legislation emerged from the session — that doesn’t mean they’re smiling about the roughly $50,000 cost of the session. “Two days of taxpayer dollars down the drain,” Senate President Kevin Grantham lamented.

Here’s a look at who came out a winner and who came out a loser in the 2017 special session:


Americans for Prosperity-Colorado

The conservative organization hit the special session early and hit it hard, mobilizing hundreds of members and supporters to contact legislators to make their opposition clear, and it worked. Not every Republican was on board with the strictest reading of TABOR’s requirements when the call went out, but by the time lawmakers filled the Capitol, AFP’s approach was widely shared and set the tone for the GOP. A deluge of digital ads over the weekend ahead of the session — five figures’ worth, state director Jesse Mallory said — helped reinforce the party line. The session also gave AFP a second chance to whack at Senate Bill 267, which has come under heavy fire from conservatives for lifting the state’s revenue ceiling allowed under TABOR, as well as flouting a constitutional requirement that a bill have a single subject.

Senate Democrats

Politicos at the Democratic Senate Campaign Fund have been licking their chops this week as they envision attack ads and mailers aimed at winning enough Senate seats in next year’s election to take the gavel from Republicans. Whether it’s a fair reading of what happened this week or not, voters in a handful of swing Senate districts are going to be inundated next year with a simple message — GOP intransigence and an unreasonable devotion to TABOR are costing local arts organizations funding and making it tougher to get around the metro area. While only three Senate Republicans actually cast votes against the special session bills, Democratic campaigns will be more than happy to pin responsibility on the entire caucus in hopes the GOP loses its one-seat majority in the chamber.


Gov. John Hickenlooper

Stymied at every turn, Hickenlooper angered Republicans from the get-go when he said he communicated with Senate Bill 267’s sponsors and legislative leadership before calling the session — a contention Republicans vehemently denied. Bill sponsor Sen. Jerry Sonnenberg, a Sterling Republican, said he hadn’t been properly consulted, and House GOP Leader Patrick Neville said he only learned about the session on Twitter. A proposal floated by Hickenlooper that the affected special districts foot the bill for the session was met with mockery from Republicans — what’s next, they asked, letting a trade association underwrite committee hearings? — and skepticism from Democrats. This session also makes Hickenlooper 0-for-2 passing major legislation in the two special sessions he’s called in the nearly seven years he’s been in office, although he’s threatened to convene one nearly every year.

RTD, SCFD and others

Nine special districts across the state — from the Denver metro area’s Regional Transportation District and Scientific and Cultural Facilities District to regional transportation authorities in El Paso County and some mountain towns and a hospital district in Montezuma — won’t be banking a total of roughly $590,000  in recreational marijuana sales tax each month the law remains as it is. District officials said the funding shortfalls will be felt by constituents and customers, although lawmakers on both sides of the aisle said that the Legislature should consider making up the revenue, perhaps out of the higher marijuana taxes or state proceeds from consumer lawsuit settlements. Regardless, the governor said he was calling the session because special districts insisted they faced a funding emergency — and couldn’t wait until January for a regular-session fix — and they came up empty-handed.

Sen. Jerry Sonnenberg

The chief Senate sponsor of the sprawling Senate Bill 267 lined up in opposition to Hickenlooper’s proposal as soon as the call went out, and can claim some victory in the session’s final outcome. But there’s enough grumbling and dissatisfaction with the original bill from conservatives that a fresh spotlight on the measure doesn’t make its author look any better. What’s more, when it emerged that Sonnenberg had already drafted legislation for the January session that did exactly what Hickenlooper’s proposed bill would do, another bill with his own name on it helped undermine the Republican arguments — inconsequential for the session itself but providing Democrats with the basis of a message portraying Republican lawmakers as obstructionists. Depending on who runs for what in next year’s election, Sonnenberg could find himself in a congressional primary, and the more attention his history sponsoring Senate Bill 267 gets, the more that could be a problem with hard-core Republican voters.

Ernest Luning

Ernest Luning

Ernest Luning is a political correspondent for Colorado Politics. He has covered politics and government for newspapers and online news sites in Colorado for more than 25 years, including at the Highlands Ranch Herald, the Jefferson Sentinels chain of community newspapers and the Aurora Sentinel, where he was the city hall and cops reporter. After editing the Aurora Daily Sun, he was a political reporter and blogger for The Colorado Independent site. For nearly a decade, he was a senior political reporter and occasional editor at The Colorado Statesman before the 119-year-old publication merged with Colorado Politics in 2017.