Colorado lawmakers, depending on party affiliation, thought the special session that ended Tuesday on a party-line vote in the Republican-controlled Senate Transportation Committee represented a missed opportunity to fix their mistake or a staunch defense of the state Constitution.
Republicans opposed the fix and preferred voters decide the tax issue, or at least get specific legal guidance on Senate Bill 267, the bipartisan legislation the governor signed into law in May. The bill inadvertently removed special districts’ ability to get a share of marijuana tax revenue. Agencies that provide transit, cultural programs and other special services told lawmakers that while it was a small part of their annual budgets, every dollars counts.
Republicans argued that taking away a tax then restoring it, as Democrats sought to do, might require voters to approve it under the constitutional Taxpayer’s Bill of Rights.
Sen. Randy Baumgardner, R-Hot Sulphur Springs, chair of the Senate Transportation, which killed both bills seeking to fix the badly worded bill, asked Dave Genova, head of Denver’s Regional Transportation District, whether it had a plan to cut services. RTD did not.
He asked if it had contingency funds that could prop up services while the legislature worked on a fix in the regular session in January. It did.
“While we do have these rainy day accounts, we do have a lot of competing priorities,” Genova told the committee Tuesday.
Sen. Nancy Todd, D-Aurora, seemed exasperated with Republicans who wanted to wait three and half more months. She said “lawyer after lawyer” had told lawmakers that they have the authority to fix a bill-drafting error without going back to voters for approval to restore the pot taxes to special districts.
“If you can remedy a problem sooner rather than later, doesn’t it make more sense to do so?” she asked in the committee hearing.
House Assistant Minority Leader Cole Wist, R-Centennial, said he took an oath to uphold the state Constitution, which says voters must approve tax increases.
“Our failure to comply with the Constitution also has consequences, ” he said. “We’ve heard a lot about how this is a simple fix, but a simple fix is in the eye of the beholder.”
Sen. Rachel Zenzinger, D-Arvada, said some Republicans are using the bill to show opposition to RTD, “Some people want to use this as a way to punish RTD, but this is not just about RTD.”
Baumgardner said he didn’t believe that theory on punishment, but wondered why the push for a fix, through a special session came too late to get it on the ballot to let voters decide this November.
“You could have put this on the 2017 ballot if it had been addressed earlier,” he said.
House Majority Leader KC Becker, D-Boulder, one of the sponsors of Senate Bill 267, took on the constitutional question.
“Is this a new tax? Nope, voters have approved it multiple times,” she said of pot taxes. “We certainly did not intend to override votes here. Our mistake does not take away the fact that voters approved these taxes. This is not a new tax.”
Rep. Mike Weissman, D-Aurora, talked about RTD’s services that his constituents rely on.
“It doesn’t help, all other things being equal, losing half a million dollars a month doesn’t help,” he said, adding he fears cuts to transit services his constituents rely on.
Weissman said there is broad support for a fix, including mayors from conservative and progressive-leaning cities, chambers of commerce and constituents.
He noted that 49 of 65 members of the House voted for Senate Bill 267 last May.
“If you voted for this bill, whatever your reason to do so was, it was not to remove from the tax base of special districts their ability to collect a voter-approved tax on recreational marijuana,” he said. “And if you voted against this bill back in May, whatever your reason to do so, I just about guarantee the reason to do so was not because you wanted to preserve the presence of recreational marijuana in the tax base of these districts.
“That issue was simply not on the table.”
Rep. Diane Mitsch Bush, D-Steamboat Springs, called any no vote “an assault on rural Western Colorado,” where residents rely on small special districts for services, such as transit, that can’t easily absorb the loss of the marijuana tax revenue.
“It is an assault on people who work hard every single day — our teachers, our police officers, our nurses, our maids, our restaurant workers,” she said. “It’s an assault on the services that help them every single day.”
Rep. Jim Wilson, R-Salida, said it’s the first time in his five years in the legislature that he has seen such an important mistake that was so overlooked in a bill that became law.
“I don’t know how that happened,” he said. “It could have something to do with a lot of important legislation gets shoved through in the last two weeks of the legislative session instead of talking about it from the first two weeks, but that’s just a footnote to that.”
He said he’s a rural advocate but he favors restoring the cut through the Constitution, not the legislature.
“I’m a rural advocate only because of what the Constitution allows me to do,” Wilson said.
Sen. Kerry Donovan, D-Vail, who sponsored the Senate fix said she is open to other options, including finding money for special districts elsewhere in the budget or legislation that stated the fix would take effect upon a new ruling on constitutionality.
“I think we owe it to the districts to give them feedback other than, ‘We’ll work on it in January,’” she said. “… We’re not being our best selves in this special session.”
Deborah Jordy, executive director of the Denver’s Scientific and Cultural Facilities District, said she was disappointed but hopeful for an eventual fix.
“As we have said since the error was discovered, we stand ready to work toward a solution that respects the will of the voters who have authorized our funding multiple times over the last nearly 30 years,” she said in a statement. “It is our hope that state lawmakers will provide that solution during the regular legislative session in 2018.”
Americans for Prosperity opposed the special session and argued that a change in taxes requires a vote of the people.
“It’s a shame Gov. Hickenlooper and some legislators were willing to disregard TABOR and raise taxes without the permission of Coloradans,” Jesse Mallory, AFP’s state director and the former chief of staff to the Senate Republicans, said in a statement. “Thankfully, members of the General Assembly stood strong and stopped this legislation, reminding voters that some legislators still serve their constituents, not special interests. I’m proud of our activists who were able to quickly mobilize and make their voices heard that raising taxes without the permission of Coloradans is unconstitutional.”
(Editor’s note: This story has been updated several times to add more comments.)