Suthers doesn’t like a federal mandate unless it’s done his way

( – promoted by Colorado Pols)

Colorado Attorney General John Suthers was all over the media last week, talking about what a terrible thing it would be if the federal government forced Americans to buy health insurance.

But in an email back in 2010, Suthers told The Denver Post’s Vincent Carroll that it wasn’t the federal health insurance mandate itself that bothered him, from a legal perspective, but how the mandate was instituted.

In the email, obtained via that Colorado Opens Record Act by Colorado Ethics Watch, Suthers wrote to Carroll:

“The way to constitutionally mandate health insurance would be to incentivize the states to do it,” Suthers wrote.

There’s nothing wrong with a lawyer wanting things done in accordance with how he sees the law, but let’s be clear that Suthers’ federal incentives, if they’re devised to “mandate health insurance,” as Suthers suggests, are simply a more polite form of Obama’s Commerce-Clause mandate.

Conservative objections about alleged federal intrusion or alleged lost individual freedom would,  as a practical matter, be nearly identical if the health-insurance mandate were the result of federal incentives or federal powers under the Commerce Clause.

Either way, it’s federal action, which makes you wonder why Suthers gleefully told KNUS’ Steve Kelley in November:

“Federalism has been on life support for 30 years. We are going to decide if the Court is going to pull the plug or resuscitate it. That is what this case is all about.”

Really? How does that square with Suthers’ view that the feds could accomplish the health-care mandate with incentives?

Anyway, in his media tour last week, Suthers told KHOW’s Craig Silverman that “it shouldn’t be the federal government pushing this down our throats.” But again, this sounds hollow when you know that Suthers simply wants federal throat-pushing of a different manner.

Suthers also told Silverman that the expansion of Medicaid under Obmamcare, as a vehicle to cover uninsured people, is a state burden that’s “so coercive as to violate federalism.” Yet, he told Carroll that a health-care mandate could be achieved with state incentives. If he believes the incentives are constitutional, then you’d think he’d have to believe the Medicaid expansion would be constitutional as well.

In the broader picture, and this is the take-away from Suthers’ behind-the-scenes correspondence with Carroll, conservatives should not be fooled into thinking that Suthers, by joining the lawsuit to stop Obamacare, is taking a principled stand against an alleged loss of individual freedom. He’s clearly not. It’s just this legal pathway he dislikes.

For Suthers, it’s the form, not the substance.

Email exchange between Denver Post columnist Vincent Carroll and Colorado Attorney General John Suthers, March 23, 2010

Suthers: Vince, I’m curious. I understood from my conversation with Alicia Caldwell that the editorial board doesn’t think there is anything unprecedented about Congress using the Commerce Clause to sanction economic activity and force you to buy a product or service it deems beneficial. Even the Congressional Budget Office told Congress that was unprecedented. If Congress can sanction your commercial activity and force you to buy a product, where does it end? Can you enlighten me a bit?

Carroll: I am not sure what our official position will be regarding whether forcing Americans to buy health care insurance is an unprecedented action by the federal government. As you know, though, the Post’s editorials have repeatedly backed a universal mandate, so it is extremely unlikely that the page would now argue that what it has been advocating is unconstitutional. Like many people, I too worry about what a court decision upholding the legislation would say about the reach of the commerce clause. But given recent legal precedents, I suspect the court would uphold the law.

Suthers: One last point. The way to constitutionally mandate health insurance would be to incentivize the states to do it.

“Obamacare’s” Big Week

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Our friends at the Washington Post report:

The Supreme Court began its constitutional review of the health-care overhaul law Monday with a fundamental question: Is the court barred from making such a decision at this time?

After decisions on other cases were announced, the justices started hearing 90 minutes of argument about whether an obscure 19th-century law – the Anti-Injunction Act – means that the court cannot pass judgment on the law until its key provisions go into effect in 2014.

It is the rare issue on which both sides agree: the Obama administration lawyers and those representing the states and private organization challenging the new law argue that the Supreme Court should decide the constitutional question now.

The question being argued today is just a preliminary match to the main event, of course:

At the heart of the Patient Protection and Affordable Care Act is the requirement that almost all Americans obtain health insurance by 2014 or pay a penalty.

But first they’ve got to figure out of they can do that before someone actually has to pay that penalty. Since both sides agree they would rather not wait until 2015, we assume the Supreme Court will agree that the penalty isn’t a “tax” in the formal sense. This concession to expediency, largely by the Obama administration who could have argued that nothing can be challenged until such a penalty had actually been levied (that is, well after re-election), might have repercussions down the road–but the administration’s decision to press for a Supreme Court decision is said to reflect their confidence that the court won’t upend decades of Commerce Clause precedent to strike an admittedly massive blow against an incumbent President in an election year.

Opponents including Colorado Attorney General John Suthers very much hope they would do that–and would happily pick up the pieces of federal law later.

Safe to say, the immediate political stakes are rarely this high. A poll follows.

Do you believe (not hope, honestly believe) the Affordable Care Act's individual coverage mandate will be overturned?

View Results

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AG Suthers supports PILLS that KILL

Nonmedical use of painkillers in Colorado is 19 percent higher than the national average, according to the Centers for Disease Control and Prevention. TO ILLUSTRATE THE “EPIDEMIC” NATURE OF OPIOID ABUSE, THE CDC SAID ENOUGH OF THE PAINKILLE…RS WERE SOLD IN 2010 TO MEDICATE EVERY AMERICAN ADULT WITH A TYPICAL 5-MILLIGRAM DOSE OF HYDROCODONE EVERY FOUR HOURS FOR A MONTH.…


Will someone explain to me why the Attorney General is focused on pot when his Big Pharma campaign contributors are killing Coloradoans at an alarming rate?

Will someone explain to me why people are in jail for choosing to smoke pot to ease pain?

Will someone explain to me why we are so supportive of whatever Big Pharma makes billions of dollars on, yet we choose not to protect the public?

On radio, Suthers says legal mandate to give undocumented kids public education is bogus

( – promoted by Colorado Pols)

KOA’s Mike Rosen agreed with Colorado Attorney General John Suthers Thursday that the legal decision forcing states to offer a grade-school education to undocumented children is bogus.

If you don’t think this tidbit deserves to be my first blog post of the week, you would be wrong.

The federal requirement to give a basic education to all children, regardless of immigration status, is a long-settled legal matter.

No reporter, no teacher, no chef, no mom, no dad, not even a Republican talk-radio host, should let Colorado’s top-dog lawyer trash this Supreme Court decision in favor of undocumented kids without any discussion or scrutiny whatsoever.

Too much is at stake. We’re talking about grade-school education for some of the most vulnerable children in our country. And Suthers’s unsympathetic tone on Rosen’s radio show seems to indicate that it’s not just the legal issues that bother him, but the notion that children of illegal immigrants should be offered a public-school education in the world’s richest nation.

Here’s what Suthers had to say on the topic, which came up during a discussion of  the ASSET bill, granting a tuition break to children of illegal immigrants, which Suthers called the “a complete run around” of two federal statutes.

Colorado Attorney General John Suthers: For some incredible reason, in 1982, the United States Supreme Court in a case called Plyler v. Doe, I think it was a San Antonio case, said any child regardless of immigration status is eligible for a free primary or secondary education. I’ve never been able to find that in the United States Constitution, but they said it’s in the 14th Amendment.

Rosen: Yes, which was all about slavery by the way, but that’s another story.

Rosen should have Suthers back on his radio show to illuminate more details on this topic, and, meanwhile, Rosen should bring a guest on air who will defend the basic humanity — and legal reasoning — for giving undocumented children a public-school education.

Gessler Goes “Rogue Attorney”–On Attorney General Suthers?

In the little over one year that Colorado Secretary of State Scott Gessler has been in office, we’ve heard a few times–strictly in anecdotes, or on background–about real tension between Gessler and other Republicans at high levels in state government. You might remember, for example, that Gessler abandoned his plans to “moonlight” at the Hackstaff Law Group (formerly Hackstaff Gessler) just after he received an opinion on the matter from Attorney General John Suthers. That opinion, as privileged advice, hasn’t been disclosed.

It’s not a secret that, following Gessler’s fairly unexpected win in 2010, there was some concern even among Republicans that Gessler would not be able to set aside his partisan election lawyer past, and might discredit the office (and the party) by going hog-wild in his official capacity stacking the election-law deck for the GOP a la 2006′s Secretary of State Gigi Dennis. If you recall, Dennis went so appallingly over the line in last-minute rulemaking against Democrats that it embarrassed the GOP, and blown out of the water in court–all on Scott Gessler’s advice.

So yes, folks, Gessler is a potential worry for more than Democrats. And check this out:

This is a notice filed by Gessler yesterday in his case against Colorado Common Cause and Colorado Ethics Watch, requesting that he be added as recipient of filings. This is the case over whether Gessler has the authority to raise the disclosure threshold for political issue committees from $200 to $5,000, presently on appeal after Gessler’s loss.

Now, your first logical question is going to be, “why is this necessary? Isn’t he the defendant?”

And of course, yes, Scott Gessler is already the defendant in this case. But Gessler is represented in this case, as with others, by the Colorado Attorney General’s office. Gessler has access to all the filings in these cases, but they are communicated to him through Attorney General John Suthers’ office. And that’s what makes this filing very curious to us.

There are several possibilities, and we want to be absolutely clear that some are benign–and some are not. Gessler may simply want to see the filings made in this case in real-time. But that could mean Gessler doesn’t think he’s getting information fast enough through Attorney General Suthers’ office. And if Gessler were to decide he doesn’t like how the AG is representing him? Well, he’s the GOP’s crack election lawyer, remember?

This is something you would logically do if you’re going to represent yourself, isn’t it?

There’s nothing we can say beyond presenting this range of possibilities explaining what everyone we’ve talked to agrees is an unusual move by Gessler–obviously, we’re not mind readers, and we’re not going to jump to any possible conclusions without evidence. But if this does become more significant, we’ll be reminding you that you heard it here first.

Doug Bruce Sentenced: 6 Years Probation For Tax Evasion

UPDATE #2: Full press release from the Attorney General’s office after the jump. We’ll take odds on Bruce violating his probation at some point, given his history of refusing to turn over records and this line from the press release:

As part of his probation, Bruce will have to meet 20 additional conditions including, making his computer files, state and federal tax returns, banks accounts, and every real estate or other financial transaction open to the probation department.


UPDATE: Tweets Joe Hanel of the Durango Herald, Doug Bruce to the pokey after all–sentenced to 180 days total on the tax evasion and influencing a public servant charges.


Details coming shortly.

Colorado Attorney General John Suthers announced today that a Denver judge has sentenced Colorado Springs resident Douglas Bruce (DOB: 8/26/1949) to 180 days in the Denver County Jail and a six-year probation sentence for tax evasion during the 2005, 2006 and 2007 tax years. As part of his probation, Bruce will have to meet 20 additional conditions including, making his computer files, state and federal tax returns, banks accounts, and every real estate or other financial transaction open to the probation department.

A Denver jury convicted Bruce of three felonies and one misdemeanor in December 2011.

Bruce’s sentence stems from a four-count indictment, filed in April 2011, that charged Bruce in the tax-evasion case. Bruce attempted to evade his tax responsibilities by funneling his income into the coffers of Active Citizens Together, a nonprofit he created in 2001, and failed to report such income to the Department of Revenue. For example, Bruce deposited $2 million in an account for Active Citizens Together. This account earned interest in the amount of $38,000 in 2005, $55,000 in 2006, and $85,000 in 2007, which Bruce failed to report to state and federal taxing authorities as income. During those time periods, Bruce used these funds as his own.

Bruce also was indicted for filing a false tax return on income he earned during the 2005 tax year and failing to file a tax return concerning income he earned during the 2006 and 2007 tax years.

Bruce will be required, as part of his sentence, to pay his back taxes and the cost of his prosecution.

Looper/Stephens Primary Already Getting Nasty

UPDATE: Majority Leader Amy Stephens fires back today with a lengthy polemical release titled “Marsha’s Mandate is Health Care Hypocrisy.” Full text after the jump:

Question: Why is Marsha Looper attacking Amy Stephens?

Answer: It’s the best way to hide Marsha Looper’s Health Care Mandate and an inconsistent conservative record.


The mail has already begun in what promises to be a bitter primary fight between Republican Reps. Marsha Looper and Amy Stephens. You might recall Stephens as one of the GOP’s most far-right members, though she apparently vacated that title permanently by drawing the ire of the Tea Party over her support for health care reform legislation that has since been dubbed “AmyCare.”

John Schroyer of the Colorado Springs Gazette has the scoop on Looper’s first mail piece bashing Stephens for her health care legislation support, and it’s a doozy. Click to see the PDF of the piece.

Marsha Looper’s Misleading Attacks Hide Looper’s Real Record

Marsha Looper’s Insurance Mandate is Health Care Hypocrisy

For Immediate Release

January 24, 2012  

Monument, CO – Question: Why is Marsha Looper attacking Amy Stephens?

Answer: It’s the best way to hide Marsha Looper’s Health Care Mandate and an inconsistent conservative record.

Marsha Looper’s Mandate is Health Care Hypocrisy

It’s amazing that Marsha Looper would attack Amy Stephens’ for passing a free-market health care solution-an idea developed by the conservative Heritage Foundation (Heritage Fact Sheet)-when Marsha Looper voted for Centennial Care Choices (SB08-217), a bill that paved the way for:

An Individual Mandate in Colorado that would have forced people to buy health insurance;

Increased Spending by subsidizing health insurance up to 300% of the poverty level, which means a family of four making $67,050 would have other taxpayers subsidizing their health coverage (;

Creating a New Tax to force people to comply and help pay for it.

Amy Stephens opposed Centennial Care Choices because it opened the door for an individual mandate, significantly increased spending and subsidies, and required a tax hike to be implemented.

The Denver Post’s editorial page endorsed Marsha’s Mandate saying, “This is a study with a difference, aimed at providing the foundation for universal health care coverage in 2010,” (Editorial, “Health care bill should be OK’d,” The Denver Post, 4/10/08).

The Denver Post went on to say that under Centennial Care Choices, “Failure to purchase such insurance could subject residents to a penalty on their state income tax. The state would subsidize poor people.”

The Post continued, “SB 217 [Marsha's Mandate] would thus work well in tandem with federal efforts to expand health care coverage, should they come. Democrat Hillary Clinton has recommended a Massachusetts-style initiative much like the program envisioned by SB 217,” (Editorial, “Health care bill should be OK’d,” The Denver Post, 4/10/08).

“Marsha Looper’s mandate is health care hypcocrisy,” said campaign spokesman, Dustin Olson.

“On one hand, Amy Stephens fought to opt Colorado OUT of Obamacare (HB11-1273) and passed a free-market health care solution that asserts our state rights, an idea developed by the conservative Heritage Foundation-the same group Rush Limbaugh promotes on his show,”

“On the other hand, Marsha Looper voted for Centennial Care Choices, which paved the way for an individual mandate, higher spending, and a tax hike to enforce it,” continued Olson.

“Amy Stephens is a fighter and has every right to stand up to Marsha Looper’s misleading and hypocritical attacks,” Olson concluded.  

In 2008, the Colorado Union of Taxpayers said of Centennial Care Choices:

“Colorado does not need a heavy handed bureaucratic program which enslaves its citizens and unduly burdens its economy. Rather the state should move to the freedom of more choices in health care,” which is one of the reasons Marsha Looper had a 48% CUT rating that year-the lowest rating ever for either candidate in the race (“2008 Report” Colorado Union of Taxpayers).

Centennial Care Choices “ties Colorado citizens to the tracks of the compulsory insurance locomotive,” said policy analyst Brian Schwartz in a blog post on Patient Power Now (Brian Schwartz, “Response to Moe Keller on health insurance,”  

Writing an opinion piece for the Independence Institute and the Colorado Daily, Brian Schwartz adds:

“Even if the single-payer bill does not pass, proposing it could make an equally bad policy seem more “reasonable”: mandatory insurance. It’s law in Massachusetts, and it has gained traction in Colorado through the 208 Commission and Senate Bill 08-217,” (Brian Schwartz, “Politicians Cannot “Guarantee” Health Care,” The Colorado Daily, 3/8/09 and The Independence Institute, 3/11/09 ).

Linda Gorman of the Independence Institute compared Centennial Care Choices to the failing Massachusetts health care plan and pointed out the waste created by Centennial Care Choices:    

“It [Centennial Care Choices] creates yet another Commission to study raising Colorado health care costs by importing the failing Massachusetts health care reform plan. According to the revised April 26th fiscal impact statement accompanying the bill, this Commission will cost taxpayers at least $519,300 over the next two years,”(Linda Gorman, “Legislative Business As Usual: Take Money from Roads to Increase Health Care Costs,” The Independence Institute, 5/8/08).

An Individual Mandate is at the Center of the Lawsuit Against Obamacare

It is highly hypocritical to attack Amy Stephens’ free-market health care solution when  Marsha Looper voted for Centennial Care Choices and its option for an individual mandate–a policy that is at the center of the lawsuit against Obamacare.

As a plaintiff and co-plaintiff in the lawsuit against Obamacare, Attorney General John Suthers and the National Federation of Independent Business-the largest organization representing small businesses in the country-are two of the key players taking on Obamacare.

John Suthers Endorsed Amy Stephens & NFIB Named Stephens “Guardian of Small Business”

John Suthers has endorsed Amy Stephens for re-election, saying “Amy Stephens has stood beside me in defending the interests of Colorado and opposing Obamacare.”

The National Federation of Independent Business (NFIB) named Amy Stephens a “Guardian of Small Business” for her work to protect and preserve the future of free enterprise and small business.

Ultimately, for most voters Marsha Looper’s vote for Centennial Care Choices that allows for an individual mandate is inconsistent at best and misleading at worst–a trait seen all too often in the typical incumbent politician.

For press inquiries, please contact Dustin Olson at (888) 414-1805. The following Fact Sheet will provide more background and research.  





The Legislation As Passed Acknowledges And Allows For The State To Impose Health Care Mandates On All Coloradans:


(“Senate Bill 217,” Colorado General Assembly,

The Centennial Care Choices Panel Report Concluded That An “Individual Mandate” Including “Enforcement Through Tax Penalties” Would Be Necessary In Order For Centennial Care Choices To Work:

“The Report Also Recommended Requiring All Coloradans To Obtain Insurance In Order For Centennial Care Choices To Work.”  

(Bob Mook, “Now May Not Be The Time To Subsidize Health Coverage,” Denver Business Journal, 4/2/09)

According To The Panel’s Report The Program Would Not Be Affordable Without An Individual Mandate:

“Proposed plans have attractive primary and preventive benefits; however, for the lowest income uninsured residents of our state, none of the VBPs (Value-Benefit Plan) would be affordable without an individual mandate, guaranteed issue requirements and a significant state subsidy.”  

(“Centennial Care Choices Final Report,” Department Of Health Care And Financing,, 3/2/09)

The Panel Concluded That The Next Step Would Be To Explore And Prepare To Implement An Individual Mandate: “1. Explore what a mandate means and how to implement it When economic conditions allow for provision of subsidies, considerations about how to implement the accompanying individual mandate should be fully researched and ready to implement.”  

(“Centennial Care Choices Final Report,” Department Of Health Care And Financing,, 3/2/09)


In Order For The Program To Work, Subsidies For Health Insurance Would Be Needed For Families That Make Up To 300% Of The Poverty Level; Requiring Funding From Multiple Revenue Sources:

The Bill Asserts That The State Of Colorado Should Work Toward Providing Insurance By “Developing A Balanced Partnership Between Private And Public Sectors.”  

(“Senate Bill 217,” Colorado General Assembly,

To which the Colorado Union of Taxpayers said, “It acknowledges that the State lacks the funds for such a program of universal coverage, so it looks for Federal funds as well as public/private partnerships, health care providers, and any one else under the sun for its conception.”  

(“2008 Report,” Colorado Union of Taxpayers, 2008)

“The Proposal, Known As Centennial Care Choices, Is Aimed At Coloradans Who Earn Too Much To Receive Medicaid But Who Aren’t Covered By Private Insurance.”

(Bob Mook, “Now May Not Be The Time To Subsidize Health Coverage,” Denver Business Journal, 4/2/09)

“The Report, Prepared By The Centennial Care Choices Panel, The Department Of Health Care Policy And Financing And The Colorado Department Of Regulatory Agencies, Said The State Would Need To Fund The Vast Majority – If Not All – Of Premium Costs To Encourage Enrollment In The Plans For People With Incomes Under 300 Percent Of The Federal Poverty Level.”  

(Bob Mook, “Now May Not Be The Time To Subsidize Health Coverage,” Denver Business Journal, 4/2/09)

In 2011, 300% of Poverty Level was $67,050 for a family of four (


The Legislation As Passed Acknowledges That If An Individual Mandate Is Imposed A Change The State Tax Laws Will Be Needed For Enforcement:


(“Senate Bill 217,” Colorado General Assembly,

In 2009, The Centennial Care Choices Panel Found That The Program Would Not Be Viable Without Tax Penalties:

“Enforcement is necessary to achieve gains in coverage under an individual mandate, but it is also important as a matter of fairness to the overwhelming majority of those who already have coverage or who voluntarily comply.”  

(“Centennial Care Choices Final Report,” Department Of Health Card And Financing,, 3/2/09)


AG’s Lobato Appeal Pits Positive Rights Against Negative Rights

( – promoted by Colorado Pols)

I recently opined that Judge Rappaport’s Lobato ruling was a yawner. I still think the long run outcome and analysis will demonstrate that it is a yawner, especially given the storied history of education finance litigation nationally. Nevertheless, elements of this litigation hit upon an utterly fascinating question of law, especially after Attorney General John Suthers’ appeal. In particular, how do positive rights rank against negative rights? And, does there exist a hierarchy among Colorado’s constitutional guarantees?

AG Suthers’ appeal to the Colorado Supreme Court specifically targets Judge Rappaport’s decision to exclude evidence of “the General Assembly’s non-educational constitutional mandates and appropriations, as well as TABOR’s revenue restrictions.” His appeal questions Judge Rappaport’s order to exclude this evidence because of her determination that “while fiscal pressure [i.e., TABOR, etc.] may explain why students’ rights have been violated, it has no bearing on the issue whether  students’ rights have been violated.”

With his appeal, the Attorney General asks the Supreme Court to pit a positive right against a negative right: a state constitutional guarantee to a “thorough and uniform” system of public schools (positive right) versus TABOR, i.e., the right against excessive state taxation (negative right). Here, it is worth noting that the positive right in question accrues generally to society, while the negative right protects individuals against taxation above a specified limit. (Note: I focus here on TABOR as opposed to the other “non-educational constitutional mandates” because in the absence of TABOR many of these mandates would become moot.)

So, what right trumps in this instance? Will the Supreme Court consider “why” and not just “whether” students’ rights have been violated? If so, what hierarchy of rights will it choose?

I would argue that because of public education’s broad societal benefits that accrue to all Coloradans young and old, taxpaying and non-taxpaying alike, a legal determination should imbue this powerfully positive right with greater heft than the right to save a few dollars or cents on a tax bill.

The Colorado Pols Politico of the Year for 2011

We like to spread out our end-of-year retrospectives so that 2012 gets a little reflection time. It is with that in mind that we present the awards for Colorado’s Top Politico (and Worst Politico for 2011, as well a look at who had a good and bad year in the last full year of human existence.

Read on, er, readers…

COLORADO’S TOP POLITICO, 2011: Rep. Tom Massey (R-Poncha Springs)

For possessing the political and policy chomps to do what made sense while most of his Republican colleagues cowered indecisively in fear of the Tea Party, Rep. Massey is our Colorado Politician of the Year for 2011.

The Poncha Springs Republican took on a stronger leadership role in 2011 and almost singlehandedly helped salvage whatever is left of the GOP “brand” in the state legislature. As Chair of the House Education Committee, Massey received bipartisan kudos for his efforts to protect $67 million for public education while other Republican figureheads blathered on uselessly about how much they cared about our schools. Massey correctly understands the difference between what you believe and what you can reasonably accomplish,  but that doesn’t mean he shies away from voicing his opinion; he told the Pueblo Chieftain that funding education should be a priority over preserving the Senior Homestead Extension, a refreshingly blunt position compared to colleagues who complain about everything but make decisions about nothing.  

Massey’s moderate conservatism likely hasn’t endeared him to right-wing Republicans, but much like former Republican Rep. Don Marostica, Massey legitimately seems interested in legislating as opposed to just tossing grenades from January through May. If Republicans had more elected officials like Massey, they’d be much better positioned to win future statewide races than they are today.

Honorable Mention: House Minority Leader Mark Ferrandino (D-Denver). When Rep. Sal Pace stepped down as the Democrats’ leader in November in order to focus on his Congressional run, Ferrandino was unanimously elected as the new House Minority Leader. If Democrats can re-take the House in 2012 – a distinct possibility given favorable reapportionment numbers – Ferrandino will likely become Colorado’s first openly gay Speaker of the House.

COLORADO’S WORST POLITICO, 2011: Secretary of State Scott Gessler

It’s quite possible that this “award” could end up being permanently named for Gessler, who isn’t likely to be much less of a disaster in 2012 than he was in 2011. Gessler has been WTF-awful since he was first elected in November 2010, using what has historically been a benign position to cause all sorts of unnecessary problems all across the state. Just how has Gessler erred? Let us count the ways:

  • Unilaterally (and illegally) attempting to change a variety of campaign finance rules. Nonpartisan officials wasted little time rejected Gessler’s efforts, and the Colorado legislature will have to clean up his mess in January.
  • Telling Congress and anyone else who would listen that Colorado has a huge problem with illegal immigrants casting ballots, despite literally no evidence to support his claims. Mesa County Clerk Sheila Reiner, a Republican, notable asked what the hell Gessler was talking about. Gessler later claimed that his charges were not intended to be factual, despite, you know, telling Congress all about it.
  • Making wildly-irresponsible claims of voter fraud that he still has yet to back up. On the few times he has been directly challenged on his assertions, Gessler just shrugs and says things like “I don’t know, it might be fraud.…
  • Gessler sued the City of Denver in a blatant attempt to reduce voter turnout because he didn’t like so many mail ballots being delivered. Pueblo County eventually joined the lawsuit on behalf of Denver (Pueblo County’s Attorney said that Gessler’s interpretation of the law was just “plain wrong”) and numerous other counties ignored Gessler’s declarations in favor of actually trying to encourage Democracy.
  • Infamously agreeing to take part in a fundraiser for the Larimer County Republican Party to help them pay off debts incurred for campaign finance violations that are the purview of the Secretary of State’s office. Gessler’s help included agreeing to sit in a dunk tank, a plan that organizers eventually abandoned after a slew of negative press. What made this ethical lapse even more disgusting was that Gessler had earlier decided to ignore what could (and should) have been hundreds  of thousands of dollars in fines incurred by the Larimer GOP in 2010.
  • Lobbying the Colorado legislature to give him authority to purge the Colorado voter rolls as he sees fit. Legislators told him to get bent.
  • Publicly stating that he is in office to further the conservative viewpoint, which came as news to voters who thought they had elected him to oversee elections and business filings in Colorado.
  • Whining that his new job as Secretary of State didn’t pay enough ($68,500?) and asking if he could moonlight for his old law firm. Even fellow Republican Attorney General John Suthers couldn’t figure out a way that Gessler could possibly justify a clearly conflicting second job.

    Dishonorable Mention: Speaker of the House Frank McNulty. Whether it was helping to completely bungle reapportionment for Republicans or doing little to fulfill Tea Party promises, McNulty proved incapable of leading the GOP caucus in the State House. His problems with The Homestead Exemption and public school funding are a prime example of how he’s stuck between reality and rabid conservatism with no game plan for finding a way out in 2012. McNulty will have a hard time keeping his one-seat majority in the House, and even if he does, he can probably expect a challenge for the Speaker’s role.


  • Democratic election law attorneys. Democrats ran embarrassing circles around Republicans at every step of the reapportionment and redistricting process. The GOP legal strategy of relying on an argument of “minimal disruption” was incredibly foolish, sure, but the Democrats did an excellent job of keeping Republicans stuck in their logic corner. Both reapportionment and redistricting created advantages for Democrats overall, which will be incredibly important over the next 10 years.
  • Republican Congressman Cory Gardner. The freshman congressman had his bumps in 2011 (such as his ill-explained support of the Ryan Plan), but the year couldn’t have ended much better for Gardner. While redistricting made re-election tougher for fellow Republicans Mike Coffman and Scott Tipton, adjustments to the boundaries of CD-4 did nothing to prevent Gardner from what should be a relatively easy re-election in 2012.
  • Governor John Hickenlooper. While Democrats have been less than thrilled with Hickenlooper’s first year as CEO of Colorado, he finished 2011 as the most popular governor in the country and was getting national press as a potential Presidential candidate in 2016. His term as governor won’t be all sunshine and rainbows, but the former Denver Mayor had a pretty stress-free 2011.

  • Republican Congressman Mike Coffman. His congressional district lines moved so much that they are now as unrecognizable as a botched plastic surgery patient. Coffman went from representing a safe Republican seat in 2010 to what will be one of the most competitive races in the country in 2012. That would be enough to make 2011 a bad year for any politician, but Coffman had numerous other problems that will only be exacerbated by his new district makeup. He may have said more controversial (and unnecessarily-so) statements in 2011 than any other Colorado politico, from calling Social Security “A Ponzi Scheme” and famously criticizing the Peace Corps to his weird efforts to repeal parts of the Voting Rights Act and his ideas for essentially destroying Medicare. Coffman alienated so many different constituencies in 2011 that perhaps he’s almost (almost) better off with an entirely new set of voters.

    And lest we forget, the icing on the cake for Coffman’s 2011: He agreed to become Colorado Chair of the Presidential campaign of Texas Gov. Rick Perry, making the announcement right as Perry’s campaign was cratering.

  • Incumbent legislators. The Holidays were a mixed bag for a dozen incumbent legislators who were drawn into districts with fellow incumbents of the same party, leaving them with the choice of a difficult primary or walking away from their seat altogether. Many legislators chose the latter, but there will be a couple of heated battles in 2012 as a result of reapportionment.
  • Rich Coolidge, Spokesman for Secretary of State Scott Gessler. Coolidge held on to his job in the SOS office after also serving under Democrat Bernie Buescher. We used to think well of Coolidge, who was helpful and humorous during the 2010 election season, but in 2011 he tossed all credibility out the window. He flat out refuses to respond to critics, no doubt at the wishes of his boss; while this may help him keep his current job, it won’t do much to help his future employment opportunities.
  • State To Appeal Lobato vs. Colorado Loss

    A fully expected development, given the enormous fiscal implications of the decision against the state regarding its constitutional obligation to provide a “thorough and uniform” public education system in the Lobato vs. Colorado suit. From a press release this morning:

    Gov. John Hickenlooper released this statement today about the Lobato v. Colorado court case:

    “It is clear after closely reviewing the judge’s decision in Lobato v. Colorado and consulting with Attorney General John Suthers that a final resolution of the constitutional and legal issues involved in the case require an appeal to the Colorado Supreme Court.

    “The judge’s decision provided little practical guidance on how the state should fund a ‘thorough and uniform’ system of public education. Moreover, while the judge focused on the inadequacy of state funding, she did not reconcile this issue with other very relevant provisions of the Constitution, including the Taxpayer’s Bill of Rights, the Gallagher Amendment and Amendment 23.

    “There are more appropriate venues for a vigorous and informed public debate about the state’s spending priorities. We look forward to a swift decision in this case so the people of Colorado and their elected representatives can participate in the school funding conversation.”

    BREAKING: Judge Rules In Favor Of Lobato Case Plaintiffs

    UPDATE #3: Ed News Colorado:

    “We think it’s a great day for the children of Colorado,” said a jubilant Kathleen Gebhardt, one of the plaintiff’s attorneys, who was giving a presentation on the lawsuit at the Colorado Association of School Boards convention when she got the news. “We’re calling on the legislature to step up immediately and fix the problem.”

    Mike Saccone, spokesman for Attorney General John Suthers, said, “We are going to consult with the governor in the coming days on this decision. However, if you read the opinion, the judge clearly invited an appeal and, at this point, an appeal is likely. The attorney general is disappointed in the ruling but not surprised. It was clearly very tempting for the judge to wade into what is a public policy debate.”

    The lawsuit did not include a dollar figure or ask Denver District Judge Sheila Rappaport to order the state to pay up or provide a specific amount. Instead, it asked the court to decide whether the state school finance system fails to meet constitutional requirements and if the legislature should be ordered to come up with a new one…

    Studies done for the plaintiffs estimate that “full funding” of Colorado schools could cost $2 to $4 billion more a year than the state spends now. Such increases would wreck the state budget and decimate other programs say Gov. John Hickenlooper, a defendant, and Suthers, who oversaw the state’s defense.


    UPDATE #2: A meaty but by no means comprehensive excerpt from Judge Sheila Rappaport’s massive tome of a ruling follows–read the whole decision here, and get comfortable because it’s going to take awhile. Please liberally post excerpts of your own (it’s public domain after all) from any part of the decision you find noteworthy. And the bottom line on page 182:

    The Court finds that the Colorado public school finance system is unconstitutional. Evidence establishes that the finance system must be revised to assure that funding is rationally related to the actual costs of providing a thorough and uniform system of public education. It is also apparent that increased funding will be required. [Pols emphasis] These are appropriately legislative and executive functions in the first instance. Thus, the Supreme Court has directed that this Court shall “provide the legislature with an appropriate period of time to change the funding system so as to bring the system in compliance with the Colorado Constitution.”

    Read it again. This really is that big.


    UPDATE: FOX 31′s Eli Stokols:

    In a landmark case over education funding, a judge has sided with a group of parents and school districts and ruled that the state of Colorado is underfunding its schools, possibly by billions of dollars…

    The decision will likely be appealed by the state, which said before the trial began that a ruling for the plaintiffs would force Colorado to direct roughly $4 billion in additional funding toward schools, leaving little money in the general fund to adequately fund other needs like transportation, corrections and health care.

    The state already spends close to half its general fund on education, although per pupil funding has been in steady decline over the last decade with Colorado now spending $2,000 less per student than the national average.


    Details coming: a few minutes ago, Denver District Court Judge Sheila Rappaport ruled in favor of plaintiffs in the landmark Lobato vs. Colorado lawsuit filed by rural school districts–which charged that public education funding in the state of Colorado is not meeting the “thorough and uniform” test prescribed in the state constitution. Though subject to appeal, this is a major development that could well result in sweeping changes to Colorado fiscal policy.

    We’ll update shortly with coverage and statements.

    Page 158: The State introduced testimony from several members of the State Board of Education and other witnesses for its case-in-chief. However, the Court notes that much of the State’s testimony actually bolstered Plaintiffs’ arguments in this case, and certain other contrary testimony lacked factual support…

    Page 176: The Court has found that in 1993 the General Assembly adopted HB 93-1313 that committed the State to develop and implement standards-based education as the anchor to the educational accountability system. HB 93-1313 was the foundation for the transformation of public education in Colorado. In 1994, the General Assembly adopted the Public School Finance Act of 1994 (the PSFA), the centerpiece of the school finance system. The PSFA established the basic funding mechanism for school district general fund (operating) revenues that has been in place since then. From this contemporaneous starting point, the two systems, which were not aligned to begin with, have radically diverged.

    The following findings are essentially undisputed: When the PSFA was enacted, the General Assembly set the statewide base funding amount by working backwards from the total funding that it intended to appropriate and carrying forward preexisting school district expenditure levels. There was no effort to analyze the relationship to the actual costs to provide an education of any particular quality. The failure to do any cost analysis and to provide for funding based on such an analysis demonstrates the irrationality of the existing school finance system. Montoy v. State of Kansas, 102 P.3d 1160, 1164 (KS 2005).

    In the past two years, the General Assembly, through the implementation of a negative factor, has actually decreased public school funding by what now totals nearly one billion dollars. The amount of the budget cuts and the method by which they were implemented are completely unrelated to the costs of providing the mandated standards-based education system. The budget cuts have aggravated the irrationality of the finance system by arbitrarily reducing funding with no educational rationale whatsoever…

    Recent amendments to the standards-based education system have substantially increased the costs of public education. In 2008 the General Assembly adopted CAP4K, that mandated a complete revision of state content standards, programs of instruction, and assessments all aligned to accomplish universal student proficiency and postsecondary and workforce readiness. This was followed in 2009 by the Education Accountability Act that established accreditation standards for school districts based upon meeting the goals of CAP4K and imposed sanctions up to and including district closure for failure to meet those goals within fixed time frames. Most recently, the 2010 effective teachers amendments (SB 10-191) imposed new teacher and principal evaluation systems founded in student growth as measured by achievement on CSAP and other standardized tests…

    The evidence also establishes that funding for categorical programs and for capital construction are completely unrelated to the actual costs of providing the services and facilities necessary to meet the mandate of the Education Clause. Capital construction funding in particular is now and has always been totally dependent on highly unequal local property tax wealth. For many school districts, particularly those in rural, poverty areas this method of funding capital needs has proved to be fundamentally inadequate, inequitable, and irrational. The recently adopted BEST program provides limited assistance, but is not sufficient to overcome generations of statutory underfunding. The deplorable conditions of numerous rural schools bears witness to this proposition.

    The Court therefore concludes that the entire system of public school finance, including the PSFA, categorical programs, and capital construction funding, is not rationally related to the mandate of the Education Clause.

    Page 177: The public school finance system falls short of providing sufficient funding to meet the mandate of the Education Clause and standards-based education.

    Defendants contend that it is not possible to analyze the costs of meeting the mandates of the Education Clause. If that argument were accepted, the Education Clause and the directives of the Supreme Court would be meaningless. To the contrary, the standards-based education system provides a comprehensively detailed model of education standards, programs, assessments, and achievement goals. The costs of meeting those mandates can be rationally estimated.

    Page 178: Due to lack of access to adequate financial resources, the Plaintiff School Districts and the school districts where Individual Plaintiffs reside (collectively, the “School Districts”) are unable to provide the educational programs, services, instructional materials, equipment, technology, and capital facilities necessary to assure all children an education that meets the mandates of the Education Clause and standards-based education.

    The Court finds that due to the irrational funding system and significant underfunding, rural and urban poverty School Districts are unable to hire, compensate, and retain effective, highly qualified teachers and administrators; to provide the curriculum, technology, textbooks, and other instructional materials necessary to meet student performance expectations; and to construct, maintain, renovate school buildings and facilities. Many of these School Districts are relegated to obsolete textbooks and materials, lack of necessary computers and internet connectivity, and dilapidated and unsafe classroom and other facilities. These School Districts have been for many years and are today unable to respond effectively to the changing demands of standards-based education.

    Page 182: The Court finds that the Colorado public school finance system is unconstitutional. Evidence establishes that the finance system must be revised to assure that funding is rationally related to the actual costs of providing a thorough and uniform system of public education. It is also apparent that increased funding will be required. These are appropriately legislative and executive functions in the first instance. Thus, the Supreme Court has directed that this Court shall “provide the legislature with an appropriate period of time to change the funding system so as to bring the system in compliance with the Colorado Constitution.”

    Suthers wants “everybody to have health insurance” and says Romneycare-type approach is legal

    (Suthers helps Romney thread the needle? – promoted by Colorado Pols)

    You learn lots of little things when you listen to talk radio, and many of them you could do without knowing, like lawyer Dan Caplis’ assessment of Tim Tebow’s football skills.

    But other small stuff catches your attention, like the fact that Colorado Attorney General John Suthers wants everyone to have health insurance.

    You might think Suthers is the last person in Colorado who wants universal coverage, given that he’s pushing a lawsuit to stop Obamacare.

    But that’s what he told KNUS morning host Steve Kelley Nov. 18:

    SUTHERS: The founders never envisioned the federal government would be in the healthcare business. The individual mandate requiring every individual to buy insurance is premised, Congress said, on their Commerce Power, their power to regulate commerce among several states. In fact, the Commerce Power has been broadly construed to allow Congress to essentially regulate any economic activity that impacts interstate commerce. But therein lies the rub: this would be the first time in history that Congress will be reaching out to every individual American and saying we are going to punish you for your economic inactivity. For not engaging in commerce because your failure to do so impacts the marketplace by imposing burdens on other people who do buy insurance.

    KELLEY: But aren’t they assuming [Obamacare] is for our own good though? Really, the betterment of everyone.

    SUTHERS: Well, that’s right and that is kind of the typical liberal response. And that is what I get most. Gee, this is a good thing. And indeed it is. We want everybody to have insurance. [BigMedia emphasis]

    So, how do we get everyone covered, like Suthers wants?

    Why Steve Kelley didn’t ask him is beyond me, because it’s the most basic follow up question you can think of for anyone who trashes Obamacare in one breath and says they want the 44 million uninsured Americans to have health insurance in the next.

    Now back to the little things you learn on talk radio.

    Back in February, Suthers told KOA’s Mike Rosen that the states can require citizens to buy health insurance, not the feds, indicating that he thinks Romneycare is at least legal and possibly desirable, given his support for universal coverage:

    SUTHERS: The state can exercise any power that the citizens don’t deprive them of in the Constitution. So unless you put a provision in the state constitution saying the state couldn’t force you to buy auto insurance or health insurance…that was one that we just voted on that in November, that’s what that was all about. Then the state can force you to do that.

    You might wonder if I was mistakenly quoting Mitt Romney not John Suthers, because Romney has been saying Romneycare is well and good for Massachusetts, but Obamacare is sick and bad for America, even though Romneycare apparently was the model for Obamacare.

    And if you’re thinking that Suthers must have been talking to Romney, you might be right, because Suthers backed Romney in 2008 and remains on the Romney train to this day. Suthers didn’t endorse Romneycare, as far as I know, but he seems open to it, and it’s a question Kelley should keep in mind for next time.

    Judge Smacks Down Gessler Campaign Finance Rule

    The joint release from Colorado Common Cause and Colorado Ethics Watch:

    A Denver district court judge today agreed with Common Cause and Ethics Watch that Secretary of State Scott Gessler overstepped his authority in changing campaign finance limits for political issue committees.

    Judge Bruce A. Jones ruled that Gessler does not have the authority to raise the disclosure threshold for political issue committees from $200 to $5,000. The Secretary of State’s rule would have made it much easier for political groups to avoid disclosing financial interests behind a ballot initiative. Last year, Douglas Bruce tried to hide his involvement in three extreme initiatives that would have limited local governments from handling their own financial future.

    Voters approved the $200 limit when they passed a constitutional amendment in 2002.

    In his ruling, Judge Jones said that the rule “focuses on changing the contribution and expenditure amounts contained in the constitution. In doing so, the Secretary went beyond his authority.”

    Colorado Common Cause Executive Director Elena Nunez said, “Voters have said time and again that they want transparency in political campaigns.  We’re pleased that the Court protected Colorado’s strong disclosure laws by rejecting the Secretary of State’s rules.”

    Ethics Watch Director Luis Toro said “We expected all along that the Court would agree that the Secretary of State has no authority to change disclosure thresholds that were set by Colorado voters in a constitutional amendment. In the event the Secretary chooses to appeal, we are confident this ruling will be upheld.”

    Full text of the decision here–an expected development after Judge Bruce Jones blasted Scott Gessler’s defense of his “solution” to conflicting state law on the matter of campaign finance disclosure–and also Attorney General John Suthers, saying Suthers was on the “wrong side”–”the side you should be on is defending the constitution.” Pretty harsh stuff.

    We’re just keeping track–has Gessler won once in court on election law since taking office? You’d think after a certain number of judicial defeats, especially where the judge straight-up humiliates you, you should take stock of your agenda. Or, failing that, others ought to.

    Opinions For Me, Not For Thee, Says John Suthers

    AP reports:

    Republican Attorney General John Suthers says he opposes the [upcoming 2012 ballot] proposal to make pot legal for recreational use.

    Suthers has criticized the head of the state’s medical marijuana enforcement agency for appearing to take a stand on local marijuana initiatives up for a vote Tuesday. Suthers called the letter from Dan Hartman “unethical.”

    Westword’s Michael Roberts supplies some background:

    Suthers feels a letter by (outgoing?) Medical Marijuana Enforcement Division head Dan Hartman published in places mulling MMJ retail-sales bans was unethical, even though Suthers himself has spoken out on the subject. Which is why proponents want Suthers to sign an ethics pledge.

    As we’ve reported, multiple medical marijuana industry sources say Hartman’s last day at MMED was Friday — a claim that prompted the Department of Revenue, which oversees the division, to tease changes likely to be announced this week.

    Among the possible reasons cited for his departure was a Hartman letter published in newspapers like Steamboat Today that took a pro-MMJ stance in towns that will vote on prohibiting dispensaries. An excerpt reads: “If your community bans commercial medical marijuana businesses… you will only remove the regulated medical marijuana distribution model from your community.”

    According to the Associated Press, Suthers reviewed the letter at the request of Mesa County Sheriff Stan Hilkey, whose jurisdiction includes Palisade, one of the burgs that will decide on an MMJ ban. Suthers determined that the letter wasn’t illegal, but it was unethical…

    Now, Colorado Attorney General John Suthers claims his repeated attacks on both marijuana legalization and the state’s medical marijuana laws are somehow different from this letter from the head of the state’s (apparently outgoing) medical marijuana enforcement division head Dan Hartman, because Suthers “has given his opinion only when asked by reporters or in response to pending legislation.” This makes us wonder if Suthers simply forgot about the debate this August versus Rep. Jared Polis on marijuana legalization at the Vail Symposium?

    Suthers admitted that if the choice is Colorado’s current medical marijuana industry or full legalization for those over 21, the likely 2012 ballot question may be the lesser of two evils.

    “I personally would prefer legalization of marijuana to the medical marijuana regimen we currently have in Colorado,” Suthers said. “I believe the retail dispensary model in Colorado, whereby marijuana is grown in large grow operations and sold in retail dispensaries to people who allegedly have a debilitating medical condition has become a complete joke. It’s nothing more than state-sanctioned fraud on the part of thousands of patients and a few dozen doctors.”

    Can somebody explain how that is more “ethical,” or different at all, than this letter from Hartman arguing against medical marijuana bans? Suthers isn’t talking about “pending legislation,” he is specifically talking about the upcoming 2012 Colorado ballot initiative. For good measure, he disparages current medical marijuana law, too. Either way we really don’t see, especially with these well-publicized comments about the 2012 initiative in his recent debate with Polis in mind, where Suthers has credibility to accuse Hartman of anything “unethical.”

    In fact, it seems to us the only real problem here…is an opinion differing with Suthers.

    Sen. Greg Brophy Wants Those Hippies Gone

    FRIDAY UPDATE 6:30AM: After an apparent standoff most of the night, police moved in after 6AM and are, as of this writing, clearing out tents and other structures from Lincoln Park. Media reports upwards of 1,000 protesters overnight.


    UPDATE #3 10:45PM: Police appear to be preparing to enforce the order that protesters not camp in the area surrounding the Veteran’s Memorial. A sizable crowd has formed in the park.


    UPDATE #2: 9NEWS reports:

    [I]n a statement Thursday morning, Governor Hickenlooper clearly stated that the protesters have until Thursday night to pack their bags and leave. He claims that although he agrees that these protesters have a right to speak their mind – their camping out overnight could be dangerous to the public.

    Mark Silverstein, the ACLU legal director, felt that the posting of tents could be a “symbolic speech that’s protected by the First Amendment.”

    “I’m not saying they have a legal right in court to keep those tents there,” Silverstein went on to say. “We’d ask the question: Is there a way the government can accommodate the expression without having to shut it down, without having to clear people out of the park?”


    UPDATE: In a tense press conference a few minutes ago, Gov. John Hickenlooper, Denver Mayor Michael Hancock, and Attorney General John Suthers say (again) that protesters can’t camp where they are, specifying an 11PM-5AM period when they are not permitted to occupy the park. No word on any specific enforcement planned, but Occupy Denver protesters are interpreting Hickenlooper’s remarks as an imminent threat–and calling for backup.


    FOX 31′s Eli Stokols:

    With more than 100 people now camped out in Civic Center Park between Lincoln and Broadway, about 60 yards from Hickenlooper’s office, Sen. Greg Brophy issued a statement Thursday morning calling on the governor to take action.

    “All of Colorado is watching and the Governor has already set a dangerous precedent by allowing this to happen,” said Brophy, R-Wray…

    Hickenlooper and Denver Mayor Michael Hancock aren’t certain what to do about the growing tent city of protesters even after meetings on Wednesday, after which they released a joint statement.

    “The Occupy Denver protesters are on State property. The State and City are working together to find a solution that balances Occupy Denver’s First Amendment rights with growing concerns around public safety and public health in violation of city ordinance and state law.”

    …Arresting all the protesters on misdemeanors and expecting them to be jailed is unrealistic, leaving Hickenlooper to joke Tuesday that the best solution may just be waiting for the weather to get colder.

    For one thing, supporters of the Occupy Denver encampment–far more than ever appear on the site of the protest at any given time–are all linked by social networking technology. Part of the “unrealistic” nature of forcibly dismantling their encampment is the likelihood that thousands of people would instantly descend on it the moment police began preparations to do so. And yes, if the mass arrest of 100 people is something authorities feel uprepared to carry out, the arrest of several thousand is pretty much out of the question.

    We are kind of wondering, though, what Sen. Greg Brophy, notable gun-toting mountain biking GOP tough guy, thinks the mass arrest and forcible dismantling of Occupy Denver would look like. And whether he’d really like to take responsibility for such a thing.