RICH, ATTRACTIVE STATE . . . SEEKS EASY CONTRACT BREACH.

COLORADANS ARE FREE TO ELECT “LOW TAX” POLITICIANS.  COLORADO POLITICIANS ARE FREE TO CREATE A “TAX HAVEN.”  HOWEVER, COLORADO VOTERS CANNOT EMPOWER POLITICIANS TO BREACH THE STATE’S CONTRACTS.

Outrageous.  

The Colorado General Assembly has been the primary contributor to the creation of Colorado PERA’s unfunded pension liabilities in recent decades.  For this body, the author of the PERA pension underfunding “problem,” to argue that the existence of this “problem” should somehow justify its breach of contractual public pension obligations is simply . . . outrageous.

Colorado is a relatively wealthy state.  There are sixty-four counties in Colorado.  Ten of these counties are among the 100 richest counties in the nation.  According to the U.S. Department of Commerce, Colorado now has the 15th highest per capita income in the nation.  I consider any attempt to breach contracts by a state that ranks 15th in the nation in per capita income to be outrageous.

As we have chronicled at saveperacola.com, the Colorado General Assembly has traditionally and intentionally slashed its available revenues . . . revenues that would otherwise have been available to the General Assembly to meet its contractual pension obligations.  The General Assembly has ignored its PERA pension contractual obligations.  It has directed one-half BILLION dollars to fund public pensions that are not its responsibility. It has repeatedly and inexplicably made $100 million discretionary grants from its purportedly “tight” revenues.  

Further, over a 17-year period, the Colorado General Assembly has artificially reduced its available financial resources through its own faulty legal reasoning.  The Colorado General Assembly’s own ineptitude (a 1992 OLLS legal opinion’s misinterpretation of the Arveschough-Bird fiscal limitations) artificially diminished revenues available to the State of Colorado for a 17-year period.  How much damage has this legal blunder done to state coffers over this 17-year period?  How much revenue did the state lose as a result of this faulty legal analysis?  Tell me why a relatively small group of Coloradans, PERA pensioners, should have their contracts with the state discarded due to the General Assembly’s claims of insufficient revenues.  Particularly, when the General Assembly’s actions have significantly reduced these available resources.  Why should PERA pensioners bear the burden of the Colorado General Assembly’s past legal mistakes?

As we have seen, the Colorado General Assembly: has ignored $4.3 billion of its annual required contributions to the PERA pension in just the last decade, has ignored legal pension funding options adopted by other states, and has succeeded in transforming the State of Colorado into a “tax haven.”  Over the decades, the General Assembly has given Coloradans one of the lowest tax burdens in the country, and in doing so, has intentionally cut available revenues that might have shored up the PERA pension plan.  The General Assembly has voluntarily made grants from its General Funds for purposes of discretionary property tax relief, while simultaneously claiming that it faces fiscal strife.  Who cannot see that this claim defies logic?

Many members of the Colorado General Assembly have supported the severe restriction of public resources available to the state.  Many supported the adoption of the TABOR constitutional amendment in 1992, and continue to support TABOR’s extreme restriction of public financial resources.  Indeed, the author of 1992 TABOR constitutional amendment has served as a member of the Colorado General Assembly.

In 1999 and 2000, the Colorado General Assembly, at the prompting of Governor Bill Owens, enacted tax cutting measures that significantly reduced the state’s future revenue stream.  This constituted a nearly criminal disregard for the ability of the state to meet its contractual obligations over time.  A Colorado General Assembly that has, by design, decimated its tax base, now beseeches the courts to license the abandonment of its contractual obligations.

The General Assembly has slashed the pension contributions of PERA-affiliated employers over the years.  A quotation from the Colorado Statesman:

“PERA’s troubles date back to 1999-2000, when the pension plan peaked at 104.7 percent on its ratio of assets to obligations (liabilities).  The Legislature was feeling flush, and passed bills reducing the employer contribution.”

Link:

http://www.coloradostatesman.c…

The group “Friends of PERA” tells us on their website:

“Rate cuts to PERA (affiliated employers) between 2000 and 2005 equaled some $325 million.”

Ten years ago, the Governor of Colorado allowed his own political preferences to harm the fiscal soundness of the PERA trust funds.  From the Silver and Gold Record archives:

“PERA reacted promptly to the market downturn in 2001.  In 2002, it developed a proposal that would have saved PERA millions of dollars in payments and brought in millions of dollars in additional revenue.  This plan was passed unanimously by the General Assembly in 2003 but was vetoed by Governor Bill Owens.”

How much damage to the PERA trust funds was caused by Governor Owens veto of this bill?  PERA retirees will not relinquish their vested pension rights in order to compensate for past pension mismanagement by politicians.

In 2009, the Colorado General Assembly could not be bothered to appoint a commission to study pension funding options prior to breaching pension contracts.  So it abdicated this policy-making responsibility to pension administrators and lobbyists.  Colorado PERA is one of the public pension plans in the United States that actively lobby its sponsoring governments, spending $400,000 for that purpose each year.  PERA pension administrators have used the trust funds of pension beneficiaries in a long-running and continuing program to influence members of the Legislature.  This fact alone should give pause to elected officials.  

One should also remember that the Colorado PERA Board determines the asset allocation for the PERA trust funds.  The PERA Board determined the portion of PERA’s portfolio that was exposed to equities prior to the most recent equities market downturn.  In lieu of increasing equity exposure in the PERA trust funds, the PERA Board had the option of requesting that the State of Colorado and other PERA-affiliated employers provide additional resources to invest in less volatile securities.  Has this ever occurred to the PERA Board?  Have they ever made this request?

Why should PERA pensioners, who bear no market risk, be forced to relinquish their property to compensate for asset allocation decisions made by the PERA Board?  The PERA Board intentionally places a significant portion of PERA trust funds into volatile common stocks and then is surprised that common stocks are volatile.  Then, the PERA Board argues that this volatility should permit their breach of contracts?

At the core of a defined benefit public pension plan is the assumption of market risk by the public pension plan sponsor.  This fact draws workers to the public employer members of the pension plan as part of the employment exchange transaction.  Will PERA’s administrators deny the very nature of public pension plans?

Further, administrators of public pension plans cannot reasonably claim ignorance of market volatility, even extreme market volatility.  They have experienced extreme market volatility on a number of occasions in just the last decade.  Public pension plan administrators are paid to manage this volatility, not to shift the consequences of their unsuccessful investment strategies onto others through the breach of contracts.  To paraphrase the author of a recent law review article: “The unanticipated severity of an anticipated event does not justify unilateral modification of a contract.”

Instead of adopting legal, prospective pension reforms (as have been adopted by numerous states) the Colorado PERA Board insisted that PERA pensioner contracts be breached.  This decision could ultimately delay true PERA pension reform in Colorado by 4-5 years.  These are years during which the PERA trust funds might have been on the road to financial strength through legal reform.

Make no mistake: Colorado taxpayers will eventually be forced pay billions of dollars in additional costs resulting from the Colorado PERA Board of Trustees’ decision to delay true, legal pension reform and instead pursue fruitless litigation.

A commentator in another state that is addressing public pension liabilities put it well:

” . . . a short-lived pension reform that is invalidated by court order after protracted litigation . . . would be a disservice to the taxpayers.”

Gino L. DiVito, Tabet DiVito & Rothstein LLC, Chicago, ILL

Colorado law allows the Governor to submit questions to the Colorado Supreme Court regarding the constitutionality of proposed legislation.  This option was available to Governor Ritter and (through him) it was available to the General Assembly.  The Denver Post editorial board encouraged the General Assembly to make this request prior to enacting SB 10-001.  In addition to the Denver Post editorial board, Colorado PERA itself encouraged the General Assembly to send an interrogatory to the Colorado Supreme Court regarding the constitutionality of its proposed pension reforms.  The General Assembly failed to do so.  From the Colorado Statesman:

“PERA also is hoping the Legislature will ask the Colorado Supreme Court to review the matter through interrogatories before the end of the session.”

Link:

http://www.coloradostatesman.c…

Question: If the Colorado PERA Board of Trustees possessed such confidence in its SB 10-001 pension reform proposal, why did the PERA Board of Trustees encourage the General Assembly to check the constitutionality of the proposal with the Colorado Supreme Court?  Obviously, the Colorado PERA Board of Trustees lacked confidence in the constitutionality of the proposal (contained in SB 10-001.)  If the PERA Board had complete confidence in the proposal . . . if the PERA Board had complete confidence in their 2009 outside legal opinion supporting the proposal . . . if the PERA Board had complete confidence in the legal advice they received from internal and external attorneys, then the PERA Board would not have desired that the Colorado Supreme Court check their work before they plunged headlong into litigation.

Question for the PERA Board and administrators: How did the leadership of the Colorado General Assembly explain their decision to forego a Colorado Supreme Court interrogatory on the constitutionality of SB 10-001′s provisions?  Who communicated this decision to you?  Senate President Brandon Shaffer?  What was the rationale?

Colorado is a Wealthy State, and . . . Colorado is a “Tax Haven.”

Should one of the wealthiest states in the nation (and a state that also enjoys one of the lowest tax burdens among the states) be permitted to breach its contractual pension obligations in order to further reduce that tax burden?

The Colorado Fiscal Policy Institute publishes a “Colorado Tax Fact Sheet.”  The source of much if the data in this fact sheet is the staff of the Colorado General Assembly.  The fact sheet is available at this link:

www.cclponline.org/postfiles/Taxes_fact_sheet.doc

What does a “tax haven” look like?  The Colorado Tax Fact Sheet shows us:

-  Colorado’s state tax collections are the second lowest in the nation.

-  Colorado’s combined state and local taxes are the seventh lowest in the nation.

-  Total Colorado taxation per $1000 of income has decreased over the past ten years.

-  Colorado’s corporate income tax rate is 4.63%, the same as the individual income tax rate.

-  Colorado ranks 42nd of 46 states in corporate income tax collections.

-  Twenty-nine states have a flat corporate income tax rate.  The lowest is Utah.  Colorado’s is the second lowest.

-  In 2001, Colorado’s sales tax rate was lowered from 3.0% to the current rate of 2.9%.

-  Colorado taxes the fewest number of services of any state.

-  There are a total of 71 exemptions from state sales and use taxes in Colorado law.  In 2009, Colorado’s exemptions accounted for $1.8 BILLION in lost revenue.

-  Colorado ranks 44th of 45 states in sales and use tax collections.

-  All other states include more services in their sales tax mix than does Colorado.

-  Colorado ranks 32nd out of the 50 states in fuel tax collections.

-  When the combined state severance tax and the local property tax is considered, Colorado ranks 4th of 5 western states (Wyoming, New Mexico, Oklahoma, and Utah).

-  Colorado has no statewide property tax.  It was repealed by the legislature in 1964.  (My comment: In the decade following the repeal of the statewide property tax Colorado PERA’s actuarial funded ratio hit a low of 54.5 percent, yet there was no call to breach the state’s pension contracts.)

Colorado’s Public Expenditures Per Capita are 62 Percent Below the National Average.

The Colorado Fiscal Policy Institute also publishes a “Colorado Tax Primer.”  A PDF of the Colorado Tax Primer published on January, 2011 is available at the following link:

http://www.cclponline.org/uplo…

Below I provide a few relevant excerpts from the Colorado Tax Primer:

“Adequacy Compared to Other States:”

” . . . adequacy is measured by whether the system generates sufficient revenue to fund legislatively-enacted priorities.”

“Certain states (such as Colorado with the implementation of the Taxpayer Bill of Rights) have ignored the fundamental principle that the need for public services should drive the collection of tax revenue.  Instead, these states have flipped the principle on its head by capping tax revenue based on a formula that attempts to define the need for public services based on allowable revenue.”

(My comment: Recall that the constitutional TABOR amendment recognizes Colorado public pension obligations as “debt.”)

“There are multiple ways of measuring the adequacy of revenue as it translates into services. One such measure is state rankings.  Colorado consistently ranks low on expenditures when compared to other states.  Overall, in 2009 Colorado ranked 47th in spending per $1,000 of income.  A recent analysis shows that in order for Colorado to reach the national average in total spending per $1000 in income, the state’s General Fund spending would need to grow by $4.9 billion or 62 percent.”

“The amount of taxes paid by Colorado taxpayers is low compared to other states.  Colorado’s state taxes, per $1,000 of income, rank second from the bottom (49th) in the nation.  Alaska has the highest and New Hampshire the lowest.”

“The income tax rate was subsequently reduced to 4.75 percent for calendar year 1999 and 4.63 percent beginning on Jan. 1, 2000.  This is the current tax rate.  Referendum C, adopted by the voters in 2005, allows the income tax rate to decline to 4.5 percent under specified circumstances after 2010.”

“Colorado ranks 42nd out of 46 states for corporate income taxes per $1,000 of income. The national average for all 46 states is $3.29.  Colorado businesses pay $1.55 per $1,000 of income.”

“In addition, many more income tax exemptions and special deductions are not reported at the state-level since they are applied to the calculation of federal taxable income.”

“There were a total of 71 exemptions from state sales and use taxes in Colorado in 2008.  In 2009, Colorado’s exemptions accounted for $1.8 billion in revenue.”

“Colorado’s sales tax ranks 44th of 45 states per $1,000 of personal income.  Five states have no state sales tax.  The average amount of sales tax paid by all states is $19.68 per $1,000 of income.  Colorado taxpayers pay $10.86.”

“Colorado is one of only four states in which the state government generates less tax revenue than the local governments.  Revenue collections by Colorado state government rank 47th per $1000 of income.  However, revenue collections by state and local governments combined move Colorado to 44th per $1000 of personal income.”

Observations From the Colorado Legislative Staff Regarding Colorado’s Level of Taxation:

“Since 1935, Colorado has enacted 71 sales tax exemptions. For FY 2009-10, estimates show that the total revenue impact of these exemptions was over $1.86 billion.”

Source: Colorado Legislative Council Staff:  

Link:

http://www.colorado.gov/cs/Sat…

“Colorado’s combined state and local taxes were the seventh lowest in the nation – $95.53 per $1,000 of income, which was 14.7 percent below the national average of $111.99 in FY 2007-08.”

“Colorado had the second lowest state tax collections ($40.89) per $1,000 of personal income in FY 2008-09 in the country.  The state tax burden was nearly the same (the state ranked 47th ) ten years ago in FY 1997-98, although collections were higher at $54.68 per $1,000 of income.”

Link:

http://www.colorado.gov/cs/Sat…

Clearly, over the decades, the Colorado General Assembly has obliterated its tax base . . . it now seeks to obliterate its contractual pension obligations.  Nevertheless, the Colorado General Assembly is the creator of the Colorado Public Employees’ Retirement Association.  The Colorado General Assembly freely entered into contractual relationships with all PERA members.  Having created these contracts, the General Assembly must now honor them.

“No State shall . . . pass any . . . Law impairing the Obligation of Contracts.”

Will TBD Up The Ante? It All Depends on Hickenlooper

As the Durango Herald’s Jordyn Dahl reports:

Leaders of TBD Colorado say the key finding of the initiative is that Colorado’s economy is “unsustainable without major fiscal and constitutional reforms.”

The eight-member board of directors of To Be Determined Colorado released its recommendations Wednesday to Democratic Gov. John Hickenlooper, who established the initiative to determine a grand plan for the state.

The board based its recommendations on 70 public meetings with 1,200 Coloradans across the state during the last year. The initiative, which had a budget of $1.2 million and was funded by donations, focused on five issues: education, health, transportation, state budget and state workforce.

Opponents of TBD Colorado said the initiative was a way for Hickenlooper to lay the groundwork for a tax increase. While the recommendations do not directly call for tax increases, it does say revenue options have to be weighed against public services Coloradans want. [Pols emphasis]

Here’s what the summary report from TBD Colorado itself says:

In recent years, the state’s revenues have not kept pace with the underlying growth in the Colorado economy because many of the fastest-growing sectors are either exempt from tax or are taxed at a lower rate than other sectors. Even though Colorado’s revenues are now increasing as the economy begins to recover, the state will be unable to grow its way out of the coming fiscal gridlock unless structural changes are made. Projected demographic shifts, such as an aging population and the increased medical costs that flow from that, will only accelerate the stresses on the state’s budget.

Respecting the role of Colorado voters, who have ultimate authority on increasing taxes, revenue options must be weighed against public services Coloradans wish to receive.

We haven’t had much to say about Gov. John Hickenlooper’s TBD Colorado initiative, because there hasn’t been much to say. Hickenlooper’s administration convened these facilitated meetings all over the state as their way of taking the citizenry’s pulse on a wide variety of fiscal issues, as well as asking what essential services citizens expect the government to provide.

The TBD Colorado initiative takes place against a backdrop of a known and very bleak fiscal reality for the state of Colorado. As a recent study by the University of Denver determined, revenues in Colorado are structurally insufficient to provide even the present level of services to the state’s growing population. By 2025, that study indicated the state will be billions short of basic needs. In addition, the Lobato education funding lawsuit has exposed a lack of “rational relationship” between the state’s funding mechanism for public education and the constitutional requirement to provide a “thorough and uniform” education to all students.

Bottom line: Republicans are increasingly wary of the TBD Colorado initiative, because it is just the latest in a series of findings that the state’s fiscal situation is not sustainable–and the only solution, once all efficiencies and waste have been squeezed out of the system, is to increase revenue. We’ve said it a hundred times, and we’ll say it again: Colorado’s tax burden is significantly below the national average, and that low tax burden has a direct relationship to the state’s chronic inability to fund essential services. Something has to give.

It will be up to Hickenlooper turn his focus groups into a tangible plan of action. After the humiliating defeat of Proposition 103 in 2011, a defeat largely attributed to the failure of Democrats like Hickenlooper to invest their political capital in investing in education, it’s clearer than ever what the key ingredient in any real solution is going to be.

And that ingredient is leadership.

AMERICAN BAR ASSOCIATION JOURNAL ARTICLE: THE COLORADO LEGISLATURE’S SB 10-001 WILL LIKELY BE FOUND

 . . . UNCONSTITUTIONAL.

The Winter 2012 issue of the American Bar Association Journal of Labor and Employment Law includes an article titled: “Public Pension Benefits Under Siege: Does State Law Facilitate or Block Recent Efforts to Cut the Pension Benefits of Public Servants?”  The article’s author is Eric Madiar J.D., Chicago-Kent College of Law, currently Chief Legal Counsel to Illinois Senate President John J. Cullerton.

(Note: This ABA Journal article was written prior to the recent Colorado Court of Appeals ruling that Colorado PERA pension COLA benefits are indeed contractual obligations of Colorado PERA and Colorado PERA-affiliated employers.)

Below I provide excerpts from the article of relevance to the 2010 breach of PERA pension contracts by the Colorado General Assembly, (and of course, some of my own observations relating to the excerpted material.)

IN SB 10-001, THE COLORADO GENERAL ASSEMBLY ATTEMPTED TO USE MARKET VOLATILITY TO JUSTIFY THE BREACH OF PENSION CONTRACTS.

From “Public Pension Benefits Under Siege”:

“Rahm Emanuel’s statement after the 2008 election aptly described the current climate: ‘You never want a serious crisis to go to waste . . . [because it] provides the opportunity . . . to do things that you could not do before.’  Thus, for proponents of pension reform the window of opportunity is open.”

(My comment: It is uncanny how closely these remarks from Rahm Emanuel in 2008 track the comments of SB 10-001 co-prime sponsor Josh Penry in 2009 [they both like the word "window."]

The Penry “Can’t Miss This Window” comments:

“Senator Josh Penry, in a videotaped discussion with Representative Mike May, [videocenter. denverpost.com] said ‘we can’t, can’t miss this window.’  And, . . . we have an opportunity to pass something that Republicans have long advocated, a significant increase in retirement age, which the PERA Board embraced, reigning in the cost of living increases . .  .”

“Penry went on to say, ‘I think it is important to pass something because if you lose actuarial necessity, as you know, it becomes extremely difficult to increase retirement age.  You cannot change course and this year, when PERA’s investment numbers come out, their investment returns . . . numbers are going to be significant, like double, 15-16% investment return.  So that could change the specter of actuarial necessity.  We gotta’ do it this year or else these other structural changes won’t be possible.”)

Link to Penry comments:

http://www.leg.state.co.us/Cli…

SB 10-001 WAS SIMPLY ABOUT TAKING MONEY, THE LAW WAS IGNORED.

From “Public Pension Benefits Under Siege”:

“Second, a legal calculus does not motivate changes portrayed as ‘pension reform.’  Rather, as Eden Martin of Chicago’s Commercial Club candidly explained ‘[this is] not about the law at all, it’s about the politics and arm-wrestling over money.’”

“These two points are significant because they frame our larger discussion of whether the law provides states with a means to achieve a particular political objective: the unilateral reduction of public pension benefits to avoid painful tax increases, service cuts, or both.  In Illinois, the answer is unequivocally ‘no’”.

” . . . the article concludes with a prediction that courts in Colorado . . . are likely to invalidate pension reform efforts . . .”

“Most states follow the contractual approach based on court decisions or specific constitutional or statutory provisions.”

“One issue common to all reform efforts is whether those reforms violate the Contract Clause of the U.S. Constitution or its state equivalent.  This issue is paramount because pension benefits are essential components of compensation and largely determine whether public servants and their dependents may live with a modicum of economic independence upon retirement.”

“On its face, the (Contract) Clause provides in absolute terms that ‘No State shall . . . pass any . . . Law impairing the Obligation of Contract.’”

U.S. SUPREME COURT: STATE ATTEMPTS TO BREACH THEIR OWN CONTRACTS, IN THEIR OWN SELF-INTEREST, RECEIVE VERY LITTLE DEFERENCE.

From “Public Pension Benefits Under Siege”:

“In 1977, however, the (U.S.) Supreme Court clarified that state attempts to impair their own contracts, ESPECIALLY FINANCIAL OBLIGATIONS, were subject to greater scrutiny and very little deference because the STATE’S SELF-INTEREST IS AT STAKE.  As the court bluntly stated:  

A governmental entity can always find a use for extra money, especially when taxes do not have to be raised.  If a state could reduce its financial obligations whenever it wanted to spend the money for what it regarded as an important public purpose, the Contract Clause would provide no protection at all . . . Thus, a state cannot refuse to meet its legitimate financial obligations simply because it would prefer to spend the money to promote the public good rather than the private welfare of its creditors.”

(My comment: Precisely.)

A STATE’S IMPAIRMENT OF ITS OWN CONTRACTUAL OBLIGATIONS IS UNREASONABLE.

From “Public Pension Benefits Under Siege”:

“An impairment is unreasonable if it targets a known problem that existed at the time of contract formation UNLESS THAT PROBLEM HAS CHANGED IN KIND, not merely in degree.  Impairment is permitted only if there are no less drastic alternatives available for safeguarding

the important public purpose.”

(My comment: Colorado PERA has always been well

aware of the “problem” of dips in securities markets.  Colorado PERA employs investment professionals who have made a life-long study of market volatility.  Having testified before legislative committees for years regarding potential pension reform measures to address the bursting of the “dot-com” bubble in 2001 it is not reasonably possible for Colorado PERA officials to claim ignorance of the “problem” of market volatility.  The problem grew a bit larger in 2009, but it did not change “in kind.”

Less drastic alternatives?  Here at saveperacola.com dozens of “less drastic” alternatives to the breach of public pension contracts are on the record.

Finally, it should be noted that PERA pension contracts are formed every day of the year under any vesting scenario that PERA might espouse . . . each day many PERA members reach five-year vested status and many PERA members retire.)

THE COLORADO GENERAL ASSEMBLY HAS FAILED TO PROPERLY FUND THE PERA PENSION.

From “Public Pension Benefits Under Siege”:

“(The Colorado case also raises) . . . the question whether cutting benefits is a reasonable and necessary means to protect the pension system when, for decades, the state failed properly to fund the system.”

(My comment: It is satisfying to have the Colorado General Assembly’s habitual failure to meet its obligations to the PERA pension published in a law journal of the American Bar Association.  The entire American legal community should be made aware of the negligence of the Colorado General Assembly.

As we have seen, the Colorado General Assembly has skipped $4.3 billion in annual required contributions to the PERA pension fund [as identified by PERA's actuaries] in just the last decade.  News accounts from the 1990s reveal that the General Assembly also traditionally underfunded the pension during that decade.  As we have seen, it has been PERA Board policy in the past to underfund the pension [90 percent ceiling on AFR.]  Moreover, [and incredibly] members of the Colorado Legislature have, in the past, criticized the PERA pension as “overfunded” when its actuarial funded ratio was at 87 percent.

To wit, in 1985 Colorado PERA’s Field Education Services Division Director Dennis Gatlin stated that: “PERA’s funding ratio was at 87 percent, and legislators claimed that the association was ‘too well-funded.’ In 1970, the ratio was 54 percent, he added. According to Gatlin, PERA has been overfunded, when its assets equaled more than its liabilities, only twice in its 73-year [My comment: now 81-year] history, in 1999 and 2000.”

Here’s a link to Dennis Gatlin’s comments in the Silver and Gold Record:

https://www.cu.edu/sg/messages…

“The Colorado Supreme Court in the McPhail case . . . observed that ‘a cardinal principle of justice and fair dealings between government and man, [is that] the parties shall know prior to entering into a business relationship the conditions which shall govern that relationship.’”

When all of this is taken into consideration, how is it possible that the Colorado General Assembly might consider its breach of pension contracts in SB 10-001 to be in any way “reasonable”?)

CHANGING THE GROUND RULES IN THE MIDDLE OF THE GAME IS NOT CONSONANT WITH AMERICAN TRADITIONS OF FAIRNESS AND JUSTICE.

From “Public Pension Benefits Under Siege”:

“The (Colorado) retirees sued under the Contract Clause of the U.S. and Colorado Constitutions to retain the higher COLA rate that was in place when they retired or became eligible to retire.  Colorado case law appeared to support their position.”

” . . . a 2002 Colorado Supreme Court decision may have indirectly modified it (McPhail.)  In Estate of DeWitt, the court held that the Contract Clause of the U.S. and Colorado Constitutions only protects a contract affording a plaintiff ‘a vested right.’”  

(My comment: As we know, the Colorado Court of Appeals recently found that Colorado PERA retirees do have a vested right to their PERA pension COLA benefits.  Colorado Court of Appeals: “We consider McPhail and Bills dispositive [indisputably bringing to a conclusion a legal controversy] of whether plaintiffs here have a contractual right to a particular COLA.”)

“The deferred compensation analogy (construal of public pension benefits as ‘deferred compensation’) exists as a means to achieve a specific objective.  That objective was best explained long ago: ‘Whether it be in the field of sports or in the halls of the legislature it is not consonant with American traditions of fairness and justice to change the ground rules in the middle of the game, [Hickey v. Pittsburgh Pension Board, 1954; accord Colorado Supreme Court, Police Pension and Relief Board v. Bills, 1961.])”

THE COLORADO GENERAL ASSEMBLY USED THE PERA PENSION AS A “CREDIT CARD” TO AVOID TAX INCREASES.  THE MOST RECENT MARKET DOWNTURN WAS “A POLITICAL OPPORTUNITY.”

From “Public Pension Benefits Under Siege”:

” . . . public employees have diligently and faithfully paid their contributions while their government employers have failed to pay their required share.  Indeed, for decades, states have treated pension systems as a credit card to pay for government services and avoid tax increases or service cuts.”

“Public pensions are under siege because the current fiscal climate in most states presents a political opportunity for change.  For lawmakers, it is simply politically more palatable unilaterally to cut pension benefits for public employees and retirees than to raise taxes, cut services, or both.”

(My [extended] commentary: The Colorado General Assembly cannot legitimately blame the constitutional TABOR amendment for limiting their revenue and pension funding options.  Nothing prevented the General Assembly from referring a constitutional amendment to the people to address PERA pension funding.  Why did the General Assembly not take this step before embracing the breach of its contractual pension obligations?  This would have demonstrated “good faith.”  Nothing prevented the General Assembly from enacting legislation that would properly place the costs of any pension reform measure on PERA-affiliated employers [who are after all contractually obligated to fund pension benefits.]  Instead, as the prime sponsor of SB 10-001 has told us, the bill asked these PERA-affiliated employers to pay a mere 10 percent of the costs of the 2010 pension reform.  Nothing prevented the General Assembly from exploring options for increased revenues that could be directed toward pension obligations, from sources beyond TABOR’s restrictions.  Why did the General Assembly fail to appoint a study committee to explore potential sources of revenue by which it could meet its contractual pension obligations?  Instead, the General Assembly abdicated this role to the lobbyists.  One should note that a preponderance of PERA-affiliated employers have already exempted themselves from TABOR restrictions through “de-Brucing.”  Most PERA-affiliated employers cannot claim that TABOR presented an obstacle to their ability to raise funds.  In fact, just a few weeks ago dozens of Colorado governmental entities succeeded in raising new revenues through ballot measures.  Nothing has prevented the General Assembly from historically choosing to place expenditures to meet its contractual obligations above its discretionary expenditures.  Nothing prevented the General Assembly from retaining all of its revenues, and directing more of these revenues to meet contractual obligations, instead of making annual $100 million discretionary grants for property tax relief.  Further, the General Assembly has been under no legal obligation to historically direct $500 million of its revenues to local government public pensions while ignoring its own PERA pension obligations.  Nothing prevented the General Assembly from exploring the issuance of pension certificates of participation and taking advantage of historically low interest rates.  The General Assembly was under no obligation to enact legislation under Governor Bill Owens slashing its revenue stream.  Nothing prevented the General Assembly from asking its own lawyers to provide a legal opinion regarding the constitutionality of their pension reform proposal [or did they?]  Nothing prevented Governor Ritter and the General Assembly from sending an interrogatory to the Colorado Supreme Court regarding the constitutionality of their proposed pension reforms.  The Denver Post editorial board encouraged the General Assembly to take this step.  Why did the General Assembly ignore this advice?  Did the General Assembly simply not want to hear the answer? Or, perhaps it was the lobbyists who did not want to hear the answer?)

COLORADO CASE LAW TAKES A CONTRACTUAL APPROACH TO PUBLIC PENSIONS, THUS, SB 10-001 WILL LIKELY BE FOUND UNCONSTITUTIONAL.

From “Public Pension Benefits Under Siege”:

“The adoption of the contractual approach by Colorado . . . however, make(s) it more likely that pension reform efforts (the COLA provisions of SB 10-001) will be found unconstitutional.”

A PDF of the Madiar paper is available on the website of the National Conference of State Legislatures at the following link:

http://www.ncsl.org/home/searc…

Winners and Losers of 2012: Winners

We posted our ‘Losers’ separately. Here are the Winners:

1. Colorado Media

Perhaps it was because Colorado had such national prominence as a top swing state, but whatever the reason, Colorado media outlets did an excellent job in their campaign coverage. What was different? The change was subtle but important: follow-up questions.

Too many reporters, particularly TV reporters, get so attached to their list of questions that they don’t ask important follow-up questions. There was a great example of this in Missouri, in the infamous interview in which Rep. Todd Akin made his “legitimate rape” comments. Those two words re-elected Democratic Sen. Claire McCaskill, and they certainly damaged Republican candidates across the country who were asked their opinion of the statement. But what is often forgotten is that the reporter (who later apologized) didn’t ask a follow-up question. Really. Akin made one of the most important political statements of the year, and when he was done, his interviewer moved on to another question.

By contrast, reporters in Colorado dogged Republican Rep. Mike Coffman after a tape emerged of him saying that President Obama was “not an American,” with one TV reporter catching him on the sidewalk; Coffman never answered the reporter directly, but his ducking and dodging on-camera said more than enough. The media may not always get the story right, but by asking a few extra questions instead of just tossing softballs, they can help voters understand more about the candidates.

2. Reality

Republicans rode the “smaller government, lower taxes” mantra to moderate success in the past decade, but in 2012 voters finally decided to do the math themselves. Whether it was questioning Mitt Romney’s implausible budget & tax cut math, or whether they just started seeing more needs locally, voters in Colorado made it clear that they want their government to actually work. School bond measures that failed in 2008 were easily approved in Jefferson County, Denver, and Cherry Creek, among others. Republicans attacked Democrat Andy Kerr for being the face of an anti-TABOR lawsuit, but Kerr still defeated Ken Summers for a Jefferson County Senate seat.

Generic negative ads about the cost of “Obamacare” or the auto bailout weren’t effective anywhere, and poll after poll showed that voters favored broad ideas like environmental protection even after hearing arguments that it could slow economic growth. Nobody wants to pay more in taxes, but voters are no longer willing to risk our basic infrastructure (roads, bridges, schools, etc.) just to save a couple of bucks.

3. Cory Gardner

The freshman Republican was never in danger of losing his seat to Democrat Brandon Shaffer. After redistricting was finalized and left CD-4 with a strong Republican lean, Gardner just had to run out the clock. In fact, redistricting made Gardner’s seat safe for the next decade, giving him the opportunity to take the mantle as the GOP’s leader in Colorado.

4. Scott Tipton

On paper, redistricting results seemed to suggest that CD-3 was much more competitive than it turned out to be in 2012. Tipton defeated a strong challenger in Democrat Sal Pace, and he did so by a hefty margin. As a result, Democrats won’t likely bother spending time or resources trying to take CD-3 in 2014 and beyond. Rep. Tipton is probably safe here for as long as he wants the seat.

5. Morgan Carroll

Carroll was re-elected to the state senate without much trouble, and she oversaw Democratic efforts to maintain control of the Senate. She also graciously ceded the CD-6 nomination to Joe Miklosi when she could have run herself. Carroll will again be one of the Democrats’ most vocal leaders in the legislature, and there are several higher offices (CD-6, Attorney General) for which she would be at the top of the list in 2014.

6. Latino and Young Voters

Candidates and campaigns have said for years that the Latino and Youth vote could be important, but it was never clear whether enough of these registered voters were actually casting a ballot. That changed this year, with exit polls and other data showing that both groups voted in large numbers. The true test will come in 2014 – if candidates spend significant resources on messages specifically for these voting blocs, there will no longer be any doubt.

7. Mark Udall & John Hickenlooper

There aren’t a lot of Republican rising stars that could pose a serious threat for Democrats in elections for U.S. Senate and Governor, respectively, in 2014. One of the GOP’s most likely candidates, Mike Coffman, performed so poorly in 2012 that he may have trouble even getting re-elected; even if he does challenge Udall, Coffman will be a significantly weaker candidate after so many self-imposed errors this year.  

We also list Hickenlooper as a “Loser” in our rankings, but for different reasons. From a re-election perspective, Hick can also be pleased with 2012 results. Republican Secretary of State Scott Gessler was thought to be the most likely challenger for Governor (in part because there aren’t many Republicans who think Hick is beatable). Gessler’s already poor reputation took further damage with so many media stories about his bumbling attempts to purge “illegal voters” that didn’t exist in the first place, and now he faces criminal charges for repeatedly cleaning out the SOS petty cash drawer.

8. County Clerks

Colorado’s County Clerks, both Republicans and Democrats, generally ran a smooth election that produced early results and relatively few issues of concern. They stood up to Gessler at various points throughout the year, and then proved their mettle once ballots dropped.

9. The Tea Party

Make no mistake: the Tea Party is killing the Republican Party. But 2012 showed that Republicans are still terrified at the thought that they could earn the wrath of the Tea Party, which would mean a primary challenger. There has been a lot of talk from pundits about how Republicans have a lot of “soul-searching” to do in the wake of 2012 losses, but there isn’t a clear answer for how they can both satisfy the Tea Party and run candidates who can win in a General Election. There’s no question that ultra-conservative Republicans lost Senate seats in Indiana and Missouri that should have been easy victories. There’s no question that Republicans can’t keep running so far to the right in a General Election. But it’s still the GOP that needs to convince the Tea Party to change — not the other way around.  

10. FOX News

A Romney victory was the worst thing that could have happened to FOX News, because they would have lost their chief villain (President Obama) with a replacement that hardcore conservatives didn’t really like all that much. Four more years of Obama is four more years of red meat to drive ratings.

TABOR Challenge May Continue, Says Federal Judge

Big news breaking this morning on TABOR. As Tim Hoover of the Denver newspaper reports, a federal judge rejected arguments from Attorney General John Suthers intended to prevent a legal challenge to the 1994 ballot measure that greatly restricts the State’s ability to raise and spend money.

Today’s decision means that the lawsuit will be heading for a trial. At issue is whether TABOR violates a U.S. Constitutional guarantee that every state is guaranteed a republican form of government as opposed to a direct democracy (where citizens govern themselves, essentially).  

John Hickenlooper’s Great Idea: TBD Citizen’s Summit

I spent Saturday at TBD — a very lame name for a pretty cool idea. Governor Hickenlooper wanted to bring together one thousand civic leaders from all over the state, educate them on the basics of the budget process in Colorado, and give them ample opportunities to talk to each other about how best to move forward, in a completely nonpartisan environment.

The name TBD means “To Be Determined”, which I am told, refers to the fact the completed program still does not have a permanent name. When I was initially invited to join the group, the name was daunting — despite a vague description on a website, I had no idea what I was in for.

TBD took place over two weekend half-days in various regional locations, and culminated in a day-long Summit in Denver. Two other cities in CO joined the Denver group by Skype. The main content of the workshops revolved around five key areas previously chosen by a “framing committee”: transportation, health care, state workforce, education and the state constitution. These key areas became the framework for discussion and debate.

Lt. Governor Joe Garcia attended the full day Summit with us, and Governor Hickenlooper attended the last portion of the Summit, giving closing remarks, and inviting all of us to stay  involved on state matters. I overheard the Governor say to someone at one point, “That’s a very interesting idea. Why don’t we go for a beer and talk about is some more?”

During the course, participants were given reading materials, an overview of how the budget process works, and how TABOR, the Gallagher Amendment and the Colorado Constitution interact. Every step of the way, we were given questions to answer about our personal values, which were tabulated electronically in real time using college test-taking hand units. After each participant voted on a question, the results were displayed immediately on a large screen, sometimes prompting further discussion. During the Summit, we transferred those values into the State Budget using the Backseat Budgeter. As you would imagine, balancing Colorado’s budget is much harder than it looks, and almost every attempt resulted in a smack against the infamous “Wall of TABOR”.

I found the whole process to be fascinating. Logistically, the program clearly had some bugs — there were questions that didn’t make sense at first glance and needed to be clarified, and there were times when our small groups did not understand what was being asked of us. Sometimes the pace seemed very rushed; other times a little slow. Because this was the first year for TBD, I’m confident will be worked out for future year’s workshops. The high-tech classroom worked well for the most part, and clearly furthered Hickenlooper’s brand as the geeky but lovable Governor who thinks outside the box.

Because the room was filled with municipal and county leaders rather than elected officials, I found it refreshing to talk honestly to people without partisan politics getting in the way. The participants were from a wide range of geographical areas, political affiliations and demographical groups, and I learned a great deal about why people vote the way they do. I also gained a better understanding of the mechanics that make balancing the state budget so complex (and frustrating).

TBD was presented through a private organization and paid for through contributions to a 501C-3. No state dollars were used to pay for any of it. Summaries of the statewide discussions and votes can be found on the website: http://tbdcolorado.org/

I strongly encourage my fellow activists and blog readers to apply to the program the next time it rolls around. The time commitment is minimal, the educational opportunity is great, there are free meals, you meet interesting people from all over the state, and when the temperature is 103 degrees outside, the air conditioned classroom is a godsend. And maybe the best part of all … the opportunity to see the Governor’s face when the vast majority of the room expresses their serious reservations about fracking.

How would Stapleton pay for road and bridge upgrades?

( – promoted by Colorado Pols)



During an interview on KLZ’s Grassroots Radio Colorado yesterday, Colorado State  Treasurer Walker Stapleton came out in support of a lawsuit alleging that the 2009 FASTER law, which raised Colorado vehicle registration fees to pay for road and bridge upgrades, is unconstitutional.

Here’s the key exchange on the radio show:

WALKER STAPLETON:  Well, you know, my friend Rich Sokel is at the tip of the spear, there. And I think it’s a great thing.  And I hope they prevail because, you know, the FASTER tax was one of many taxes and fees that was passed without our input as voters in Colorado.  And it was passed and given cover by a liberal activist Supreme Court.  And so I hope that it gets some traction, because these fees need to be called what they are, and that’s tax increases.

Host: Absolutely.  So I’m going to wish them luck on that and we’re going to do everything we can to support those guys and their efforts.  Walker Stapleton, Colorado state—

STAPLETON:  Thank you, guys!  I appreciate you!

HOST: We appreciate you and everything you’re doing and you know you’ve got a friendly voice here, so use us whenever we can and we’ll help you fight this battle.  That’s Walker Stapleton, Colorado State Treasurer.

Listen to Walker Stapleton on KLZ 6-7-12

It’s painful to hear a public official, who claims to be the standard bearer for fiscal responsibility, support striking down the FASTER law without explaining how he’d fund road and bridge repair in the state. And this is of course not the first time Republicans have exhibited this problem.

So, please, all you entertaining people over at KLZ, put this question to Stapleton when you have him back on Grassroots Radio Colorado: Does he 1) want to fix Colorado’s crumbling roads and bridges, and, if so 2) how he does he propose to pay for it ($300 million in bonds issued and $400 million to be issued in 2017).

The Definitive TABOR Thread, for Muhammad Miguel Ali Hasan

Miguel Ali posted this on one of the recent Doug Bruce threads:

“I stand by my mentor, Douglas Bruce

I believe him when he says he’s innocent and I proudly support his appeal  

TABOR4LIFE”

Now, Miguel Ali has made some huge political strides in the past few years, rejecting the faction of the GOP that is racist, anti-immigrant, and homophobic. For that, I give him all of the credit in the world. M. Ali is also known around here for being polite — a characteristic this former preschool teacher finds refreshing. (Mrs. Hasan — great job!) I struggle to understand, however, how M. Ali has gotten so far as a “political insider” without fully understanding the horrific financial impact TABOR has made on the state of Colorado.

I’m wondering if in the spirit of free public education, for M. Ali’s benefit, and for the benefit of all of the Pols readers and lurkers we don’t know, we could have an intelligent thread about why TABOR is such a nightmare. I’d like to hear from our Polsters how different people have seen the effects in different ways around the state. There are a number of knowledgeable people here who could do a much better job explaining it than I can. Anyone else want to start, or should I?

And to M. Ali — I suspect we’ll all learn from an honest and respectful exchange. I hope you’re cool with this.

TABOR Author Doug Bruce Sheds Jailhouse Orange

AP via the Pueblo Chieftain:

One of Colorado’s best known anti-tax crusaders has been released from a Denver jail after serving time for tax evasion…

He was sentenced in February after being convicted for evading state income taxes, filing a false return and failing to file tax returns between 2005 and 2010.

But Doug Bruce is out a bit early on account of his unlikely good behavior–and the Colorado Springs newspaper’s editorial board is already hard at work on his rehabilitation, writing today that “love or hate his cause and personality, men like Bruce are too few.” We have little doubt that, like other comic-book villains, we’ve not seen the last of Bruce in Colorado politics.

If anything, we’re sad this means the end of Cool Hand Bruce.

UPDATE: FOX 31′s Eli Stokols:

After spending 103 days in jail, convicted tax evader Douglas Bruce was released early Thursday morning. He made claims of innocence and called the jail system “sadistic” while detailing the “slop” food and his “mistaken” trips to solitary confinement.

Bruce, 62, was convicted in December of tax evasion and three other tax-related crimes tied to his non-profit organization Active Citizens Together. He was sentenced in February to 180 days in jail. However, that sentence was reduced on May 7 for good behavior…

Bruce called the system sadistic as he detailed his time spent working in the kitchen. “They serve this inedible, unsanitary food… (the deputies) didn’t serve (the inmates) regular porridge, they served them cream of white, which is tasteless paste,” he said.



New media can inform us about small-time candidates like legacy media never did

Even in their heyday, the big urban news outlets almost never covered state legislative races very well, much less school board, city council, and other local elections. Small-time election campaigns were seen, for the most part, as boring to the mass audience, especially on local TV news.

New media offer great ways to get to know local candidates in depth, if you have the tiniest bit of inclination dig it up with few clicks of a mouse.

One such new-media platform is internet-only radio, where even the lowliest candidate for the lowliest race can shine.

“Art’s Place,” which aired on BlogTalkRadio Saturdays from 3 p.m. to 5 p.m. (and is available 24/7 via podcast) is one such example.

The host of “Art’s Place” is Art Carlson, who’s running in the Republican primary for Senate District 28.

Last Saturday, April 21, for example, Carlson had Art “Skip” Carlson on his show. (Yes, they have the same name, but Art Skip Carlson is running for House District 50.)

The interview, covering a wide range of topics, compliments and expands on information on his campaign website and elsewhere.

I won’t present the entire interview here, because you should just listen to it if you’re interested.  But I’ll pull out a few highlights:

ART CARLSON: Let’s find out a little bit more about you.  Why are you running for State House, Skip?

ART “SKIP” CARLSON:  Well, Art, I’m a fourth generation Coloradan.  In fact, I’m a fourth generation Weld County person. We’ve been active in politics, we’ve been active in the community for my whole life.  My parents were. My great uncle was governor of the state of Colorado.  We’ve had representatives from my family – my ancestry in the statehouse ever since Colorado became a state.  And you know, we had to vote on our constitution four times before it was ever actually accepted as a state.  We would not, had we been successful in our first run at the state, would not have been the Centennial State but would have indeed been in two years before.  So, with all of that background, I just thought  I needed to give something back to the community and the country that has been so great to me, full of opportunity.  I didn’t succeed at all things.  But I’ve had an opportunity to do things, and it’s been a great place to live and a great place to raise a family, and I just want to protect that.

ART CARLSON: All right. And what are your main issues that you’re going to tackle down at the capitol?

ART “SKIP” CARLSON: [chuckles] Well, you know, Art, that’s one thing that so many people ask me!  [inaudible] says, “Well, what are you going  to go down there and …”  I said, “you know, I don’t know that I’m going to go down there and do anything other than get rid of a bunch of things that don’t belong there.  I think, all of these people going down and saying, “I’m going to pass this law for this and, I’m going to pass this for that…” without thinking of the ramifications and looking into the past and seeing, well, if we got rid of something, maybe, your goal would be accomplished by getting rid of some of the encumbrances that we have in the Statehouse now.  But, what I’m going to have is opportunity.  My by-word is ‘Opportunity to succeed for all.’  Forget about some of these government regulations … some of this stuff.  I’m tired of governments – state, local, and so forth, giving these significant tax credits to huge corporations to come in and build their buildings, and go to work, and put our small businesses out of work, and we can’t work with our small businesses which is the backbone of Colorado, and the backbone of this country, to help them be successful and to flourish, because that is so much better.  So, that’s basically what I’m after, is getting back to local – as local as you can on anything and making sure that everybody has an opportunity to succeed….

ART “SKIP” CARLSON: …the past four years when the democrats controlled both houses and we had a really liberal governor, and they decided to put in these taxes.  And they figured out a way to get around TABOR.  But they don’t call them taxes. They call them fees.

ART CARLSON: [laughs]

ART “SKIP” CARLSON: … The FASTER thing that came in, where people just to go register their cars had to pay additional funds, is nothing but a huge, terrible tax on those who could least afford it, and that’s the low income, and those people who are on Social Security — on fixed income.  It hurt them significantly and it didn’t raise that much money.

ART CARLSON: That’s right!  I had two cars and I had to get rid of one because I just couldn’t afford the insurance and the taxes on it.

ART “SKIP” CARLSON: … We certainly need some money for road and bridge and so forth.  But we ought to think about working some deals, having a consumptive tax, perhaps raise the tax on the gas, on a exchange for getting rid of some of the things that the oil and gas people have to do, and to get rid of FASTER, would be far, far more fair, raise significantly more money, and be much, much better off for the entire community.

ART CARLSON: That’s right.  If we just grow the economy, that will bring in more revenue too.

ART “SKIP” CARLSON: Oh, absolutely!….

ART CARLSON: What are your thoughts on vouchers and charter schools?

ART “SKIP” CARLSON: I love charter schools. My grandson is in a charter school.  And as I’m going down to the  Statehouse, I don’t think that I should have that responsibility, although I will have because that’s who it has deferred to. I think the local community should handle that stuff the best they possibly can. We put some new charter schools in here in Greeley, and they are doing extremely well. The public school is having a little bit of a tough time, but as it ends up, all and all, we’re doing a little bit better and I think if we do more of those things.

And I’m for vouchers. Vouchers are nothing more than competition, competition based on who’s doing the best job. If my grandson, who is one that we sent to a private school, and we sent him there only because he needed that, and that was the best place we could find for his education. We didn’t wake up one day and say, we got a bunch of money we want to waste. Let’s see, where can we waste money today. No, because we didn’t have the money to waste, but we invested it in my grandson’s education as well as a number of other people did here in Greeley. And that education he has gotten from that school has been just tremendous. And now it’s part of the Greeley system as a charter school, and they are doing very well…

ART CARLSON: …I really love living here in Colorado….

ART “SKIP” CARLSON: …Colorado is a wonderful place. We’ve got to keep working at it. I’ve  got another meeting that I have to run off to here, Art.

ART CARLSON: Well, it’s been great having you, Skip. It was an honor having you on the show. It’s so much fun talking to you. You have such knowledge of the state, and I really like to pick at your brain more. Unfortunately, next week is the last episode of Art’s Place since I have to devote more time to the campaign… I think it would be amazing at roll call when they have to announce two Art Carlsons.

ART “SKIP” CARLSON: …That would be a good thing.

ART CARLSON: Yes it would.

If you look around the web, you don’t find as many radio blogs in Colorado, like Art Carlson’s, as you might expect. And, as he said, he’s suspending his show. Carlson seems like the kind of guy who will help you get one going, if you want to pick up the slack.

Heated Debate Shakes Up HD 41

(In-person, original coverage of a local race — wonderful. – promoted by ProgressiveCowgirl)



It was everything I hoped it would be and more. The Candidates all brought everything they had (which is more impressive for some than others) and provided a couple hours of very entertaining discussion in one of the most (if not the most) contentious Democratic primaries in the state.

The debate was hosted in Arapahoe County’s brand new headquarters, which looks fantastic, and featured the three Democratic Candidates vying for the open House District 41 seat.

The candidates are/were:

Andrew Bateman: The Activist

Jovan Melton: The Staffer

Terry Todd: The Husband

Highlights and my version of Monday-morning-QBing after the jump…

Here’s how I felt about the race before the debate, including some background on the candidates themselves.

The Short Version: Bateman Won. Melton made a good showing. And Todd reinforced the feeling that he is out of his league.

Opening Statements



In the opening statements, the candidates each gave the routine “thanks for being here, isn’t democracy great, I’m a good person” type remarks. Bateman also asked the crowd (packed to the walls) to watch for who was being vague about what they want to do versus who put forward serious and specific policies, and that he planned to do the latter. In my opinion, he was the only one to do so.

The First (and most predictable) Question



When asked what they each thought the most important issue for HD41 was, Todd answered first with a vague response related to economy that could be created (yes, he said “economy created”) by ensuring that the light rail expansion is completed. Bateman immediately came out swinging, saying that if Todd thought RTD was the most important issue in the district, he should consider running for the RTD board, but since this was a race for the state legislature, Bateman would address a state-wide issue. He then laid out a fascinating proposal for what he called “partial unemployment” which could prevent workers from being laid off during a recession and help companies re-staff faster during recovery. Melton’s answer, I honestly can’t remember. It didn’t stand out to me.

The Meat of the Debate



Most of the evening followed that tone. Melton came across as likable and capable, but failed to demonstrate much knowledge of public policy. Bateman, on the other hand, was never unable to answer a question in detail and easily came across as the smartest guy up there. What’s more, he showed his work, listing off a new example of actual accomplishment and progress that he had contributed to, or even led, for nearly every issue raised by the audience.

I got the feeling throughout the evening that Bateman and Melton were united in the cause of de-legitimizing Todd. If so, it was very successful. Neither missed an opportunity to highlight what Todd didn’t know about something, including a moment where Bateman had to remind Todd what Ref C was. Meanwhile, each of them seemed to hold off on openly attacking each other. Maybe that is just a sign of who respects whom.

They did all come together at one point when Independent HD41 candidate JM Fay asked a nonsensical question about four-square-mile. All three of them, as well as anyone else in the room who knew her, let out a unanimous exasperated sigh at the woman who has become little more than an incessant bother to everyone she encounters, barraging us all with hard-headed personal vendettas and crusades. I was happy to see the three of them trade smiling glances before brushing off the question and moving on.

My Favorite Moment of the Whole Evening

Toward the end, when the candidates were given time to ask questions of each other, Todd took a desperate swing, pulling out the only criticism of Bateman and Melton he’s been able to come up with since last April. He accused both Melton and Bateman of being dishonest about their history of residency within the district. As this issue has been raised a number of times by Todd and his allies and consequently rebutted several times over the last year, I caught several people rolling their eyes.

Melton responded first by pointing out that he attended public school in the district and grew up here. He had only left the district because he was working at the capitol, but returned to care for his ill mother well before deciding to run for office.

Bateman then gave the same answer he’s been giving all along, that while he has lived in several places around the county, he has lived in Arapahoe County since the day he was born. And that while he did, in fact, move across the district board (a move of a few blocks) to run for 41, he didn’t believe that people on opposite sides of an imaginary line had significantly different issues. He went on to state that, as people who had grown up in the area, he and Melton had a much better understanding of what it is like to live, work, and go to school in the district than Todd, who grew up, went to school, went to college, and began his career in another state, moving to Colorado only after establishing a stable career.  

Bateman then responded directly to the accusation of dishonestly, calling out Todd for refusing to give a straight answer on whether or not he was running when asked repeatedly by Bateman leading up to his entrance in the race. A the time Bateman announced and filed, he was the only candidate of either party in the race.

Favorite Lines From Each Candidate

Todd: “My website is www dot… um… Terry… uh… J… Todd dot Com”

Melton: (while talking about the repeal of TABOR, which both he and Bateman committed to supporting, and which Todd avoided committing to)”You can’t eat the elephant all at once, you have to do it one bite at a time. I call it an elephant because, well, that’s where it came from.”

Bateman: “There is more to being a representative than raising your hand at the right moment. You have to be willing and able to do the hard work and convince others to raise their hands at the same time.”

What Each Candidate Could Have Done Better

Melton: Every time you followed one of the other candidates, you started by saying “I agree with…”, which made it difficult for the things you said to stand out. You have the opposite problem as Bateman. While your personality is very appealing, you don’t speak up for yourself enough to get noticed.

Bateman: I get that you are the smartest guy in the race and that you want to demonstrate that, but you have a tendency to come across as a bit arrogant. Deserved or not, it’s a little off-putting and you may want to work on it. A forceful presentation is necessary sometimes, like when pumping up a rally, but you have to be able to play the humble public servant sometimes, too. Crack some jokes, smile more, and inspire people to be a part of what you’re trying to do.

Todd: For the love of God, study! You were a teacher for crying out loud (albeit an elementary gym teacher). Being the husband of a legislator does not qualify you to be one. If you want to make it through the next few weeks as a candidate, you have got to be able to show up with something more substantive than weak lines about “liberty and justice for all.” Tell us what you plan to do. Show us you can bring something to the table. Or get out of the way and let the two who did their homework have a productive primary without you in it.

Where I Stand

Bateman and Melton both impressed me overall. Todd did not. While I think Melton could easily do the job of being a legislator and do it competently, I believe that Bateman would be able to light a much needed fire under some asses at the capitol.

I encourage others in the district or around the state to support one of these two as well. They are good, strong, up-and-coming politicos and this position will be a great fit and a great start for either of them. Todd, on the other hand, is 72. And I hate to make it about age, but this is not a person that we can hope for big things from. At best, he will follow his wife’s footsteps, serve 8 years in each house and then retire from politics at the age of 89.

I wish all the candidates well at caucus. But I sincerely hope that Bateman and Melton emerge as the primary contenders and that Todd sees the light and backs out. I think primaries are good for a party, but only if the participants are elevating the level of debate, not dragging it down.

First Stage of Death of TABOR? Perhaps

We didn’t get a chance to get to this earlier, but comments by U.S. District Judge William Martinez yesterday could be the first step in the eventual overturning of TABOR. Tim Hoover of the Denver newspaper reports that Martinez disagreed with a key argument from the defense — in this case, the Colorado Attorney General’s office — that sought to throw out a lawsuit based on an old Oregon ruling regarding state initiatives versus a constitutional right to a “republican form of government.”

Joe Hanel of The Durango Herald elaborates:

Lawyers for the state argued that U.S. District Judge William Martinez should throw the case out because it’s a political question not suited for the courts. They pinned their argument on a 100-year-old case from Oregon.

But Martinez made clear at the beginning of the hearing that he disagreed that the Oregon case applied to the TABOR lawsuit. The judge quizzed Assistant Attorney General Megan Paris Rundlet with a hypothetical situation.

“What if tomorrow, a ballot started to be circulated for the abolition of the Colorado Legislature? And what if, given how popular legislatures are these days … it passed?” Martinez said.

Rundlet paused, and then said the current case law would bar courts from overturning such a ballot measure.

It is certainly too early to point to any potential decision, which Judge Martinez said could be months down the line, but our understanding is that yesterday’s proceedings absolutely did not go well for TABOR backers.

On a separate note, Judge Martinez probably just gave the Tea Party an idea for their next ballot measure.

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.

Lobato Ruling a Yawner

Pundits and advocates alike are abuzz over Judge Sheila Rappaport’s ruling in Lobato v. Colorado. Judge Rappaport, a Republican appointee (Governor Bill Owens), ruled that the state has failed in its constitutional duty to provide a “thorough and uniform” system of public education across Colorado. Any exasperation, perspiration or celebration over the Lobato ruling is both premature and ill-placed. Here are five reasons the Lobato ruling will prove to be an historical afterthought:

First, this is only just the beginning. The Lobato ruling is just that: a trial court determination of facts as applied to existing law. (Note: the state performed a dismal job of presenting evidence during the trial. Oddly, the state decided not to hire Sutherland Asbill & Brennan, a Georgia law firm with a national reputation for successfully defending states in school finance litigation, and instead called its own fringe witnesses.) Because Judge Rappaport’s ruling remains subject to appellate review, the Colorado Supreme Court may very well reject her application of the law and put the kibosh on any further proceedings in the Lobato litigation. End of story.

Alternatively, if the Colorado Supreme Court upholds the ruling, the state legislature must attempt to remedy, with little guidance from the judiciary (see the fourth reason below), the constitutional defects in the current system. Experiences from across the country demonstrate that plaintiffs typically challenge legislatures’ first attempts at these remedies, thus beginning the legal wrangling all over again. New Jersey’s school finance litigation has gone on for over 25 years, undergoing a constant volley (at least ten times) between the legislature and the state’s supreme court. New Hampshire and Texas offer similar cautionary tales. This volleying is certainly nothing to get to excited about.

Second, a fully implemented remedy is impracticable. Assuming the Colorado Supreme Court does uphold the Lobato ruling, the $2 to $4 billion price tag is so costly as to render it economically and politically impracticable. Again, experiences from around the nation demonstrate that some recalcitrant state legislatures have simply refused to comply with these types of far-reaching orders, leaving the appellate courts powerless to enforce compliance, even with the aid of the executive branch. Ohio, for instance, has operated on an unconstitutional school finance system for a decade. What’s more, governments can have a difficult time protecting and enforcing positive rights (e.g., a right to an adequate education). President Eisenhower needed to deploy the National Guard to enforce court-ordered desegregation, for instance. It would behoove Colorado stakeholders to avoid a separation of powers standoff.

Third, a broader injustice is at play. Inequitable and inadequate school funding remain systemically rooted in deeper economic, social and political ills not addressed in Judge Rappaport’s Lobato ruling. Minus any major corrections to these fundamental ills, any state response to the Lobato ruling will prove unsustainable and will fail to correct the harms cited in the ruling. A separate school finance case that addresses the same level of inadequate funding may very well crop up five, ten or twenty years from now.

Fourth, Lobato is a dialogical ruling (i.e., it rules on the factual and legal merits of the case yet abstains from articulating a clear remedy or way forward). Judge Rappaport’s ruling only gives judicial cognition to the inadequate funding of public schools, something already recognized by Coloradans with children in the public school system. Furthermore, and as mentioned above, the ruling only gives cognition to a symptom of an underlying illness: that of greater social and economic inequality throughout the state and the reticence of the body political to invest in the state’s economic, social and civic infrastructure.

Fifth, Lobato ignores intra-district inequalities. The Lobato plaintiffs relied on an outdated legal strategy: challenging the “adequacy” of state funding for public schools. Albeit a successful strategy, adequacy challenges ignore inequities that occur within school districts (e.g., Colorado’s best teachers often end up teaching Colorado’s most capable students). Judge Rappaport rightfully cites a need for increased funding for public schools but remains silent on the fact that school districts often deploy resources where they are least needed. The way forward will come through a more logical deployment of enhanced school resources.

Pundits and advocates need to take a deep breath before reacting with such gusto to the Lobato ruling. Too many variables and defects exist in the ruling in its current form to expect systemic change. The ruling does provide an opportunity, however, for the governor’s office, whether the Colorado Supreme Court upholds Judge Rappaport’s ruling or not, to take the lead and initiate a statewide campaign to coalesce public support for systemic changes to how and how much Colorado funds public education. The legislature then needs to listen and act on this public sentiment. As the U.S. Supreme Court opined almost forty years ago regarding school finance litigation:

[T]he ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them.

-San Antonio v. Rodriguez, 411 U.S. 1, 59 (1973).

2011: The Top Ten Stories in Colorado Politics

It’s the year that was–your top ten stories in Colorado politics for 2011 after the jump.

10. The End of the Dick Wadhams Era

9. Medical Marijuana, The Feds, and Jared Polis

8. The Rise and Fall of “Occupy Denver”

7. TABOR Author Doug Bruce Convicted of Tax Evasion

6. Hancock Beats “Class President” Romer, Survives Rocky Start

5. Scott Gessler–The “Honey Badger” of Colorado Politics

4. Mixed Messages: The Lobato Case and Proposition 103

3. Latinos, the RSCC and the Failed “Arizona Strategy”

2. GOP Historically Bungles Reapportionment

1. Redistricting and Colorado’s New Congressional Landscape

10. The End of the Dick Wadhams Era. On New Year’s Eve one year ago, former Colorado GOP chairman Dick Wadhams was likely to run for his third term. But by early February, Wadhams had pulled himself out of the running, telling FOX 31′s Eli Stokols that he “got tired of the people who see a conspiracy behind everything we do.” In the aftermath of the GOP’s disastrous 2010 gubernatorial primary, Wadhams was singled out for blame by many fellow Republicans for failing to properly “vet” the GOP’s eventual nominee Dan Maes. Others broke with Wadhams for publicly attacking Maes in his role as the state party chairman after Maes won the nomination, and all but endorsing the third-party entry of Tom Tancredo into the race.

The 2010 gubernatorial disaster was the last in a long history of meddling in Republican primaries by Dick Wadhams. In 2008, Wadhams was accused of muscling any challenge to longtime friend Bob Schaffer out of the GOP U.S. Senate primary, including both minor and (at least at the time) perfectly viable candidates. In the 2010 Senate primary, Wadhams is widely believed to have colluded with national Republicans to clear the field for former Lt. Gov. Jane Norton–another total failure that severely harmed Wadhams’ standing with the conservative base.

In the end, Wadhams was done in by his own arrogance. The sort of pre-primary wrangling that made Wadhams infamous is not new in politics, but coming during the “Tea Party” surge on the right and against the wishes of an increasingly restive GOP base, Wadhams discovered a hard limit to the power of the smoke-filled backroom.

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9. Medical Marijuana, The Feds, and Jared Polis. Colorado’s burgeoning medical marijuana industry, approved by the state’s voters under Amendment 20 in 2000 and greatly expanded by new rules allowing for commercial medical marijuana dispensaries in recent years, faces a growing challenge from federal law enforcement. Marijuana remains a “Schedule I” controlled substance under federal law, meaning no legitimate medical use of it is recognized. The federal government is in the process of cracking down hard on the state of California’s less-regulated medical marijuana indistry, and in Colorado, federal uncertainty has resulted in marijuana dispensaries legally operating under state law being unable to access simple business banking services.

In response, Rep. Jared Polis of Boulder has emerged as the state’s–and nation’s–leading congressional defender of medical marijuana and pot legalization in general. Polis has sponsored legislation to end the universal federal prohibition of marijuana and leave its regulation to the states. In questioning of Attorney General Eric Holder, Polis has tried to differentiate bewtween California’s medical marijuana industry and Colorado’s much more tightly-regulated model.

Polls are showing that the issue of marijuana prohibition is quickly shifting in terms of public support. The federal government is increasingly behind the curve as states pass greater and greater liberalizations of marijuana laws. It seems to us that Rep. Polis is very much at the vanguard of a winning long-term issue–and for a young guy in politics, that’s a great place to stand.

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8. The Rise and Fall of “Occupy Denver.” Late this summer, massive protests inspired by Canadian activist magazine AdBusters gripped cities across the United States. Called the “Occupy Wall Street” movement, these protests sought to call attention to widening income and economic opportunity inequality in America and around the world. Coming on the heels of the “Arab Spring” protests that ended despotic regimes in Tunisia, Egypt, and eventually Libya, there were high hopes that these protests would result in meaningful reforms in American economic policy.

And then it started to get cold.

Here in Colorado, a robust “Occupy Denver” encampment developed near the state capitol in late September, and was initially welcomed–even some lawmakers like Rep. Wes McKinley pitched a tent to “be close” to the protesters. Unfortunately, as this encampment grew, provisions for basic functions like sanitation and rudimentary safety policies (no tapping light posts for power, no blocking traffic) never materialized. This basic lack of organization, as time went on, began to squelch the larger message of the protests–and gave authorities all the pretext they needed to start breaking up “Occupy Denver.”

The fact is, “Occupy Denver” never had a viable plan for surviving the winter season. During the season’s first major snowstorm, it become obvious that many of the protesters were not concerned with their own safety or that of others. It became a situation where underequipped protesters were standing out in the cold without adequate protection–sorry, but a cheap dome tent is not enough to protect you in those conditions–and blaming the police for their resultant hypothermia. The fact is, if the tents had been permitted to remain, the police would have pulled frozen “Occupiers” out of them. All of which was plain to the average observer, the real “99%” that Occupy Denver was supposed to be speaking for.

The lack of organization and rational decisionmaking on the part of the “Occupiers” has today stripped them of much of their public support. The “Occupy Denver” contingent still present near the capitol has dwindled as winter has set in, and now seems to be composed of a core group of already-homeless people who really can’t be reasoned with. Their larger message points about income inequality and economic reform have been hopelessly sidelined by increasingly strained allegations of police brutality.

Bottom line: anyone who hopes to see something more productive in the spring from the “Occupy” movement had better be prepared to join it and change its course. There is a chance that “Occupy” could still have a political impact in 2012 if these public safety and organizational embarrassments that alienate “Occupy” from the real “99%” can be overcome–but not by the usual-suspect marginal types who have caused them.

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7. TABOR Author Doug Bruce Convicted of Tax Evasion. Republicans have a love-hate relationship with the mastermind of the 1992 Taxpayer’s Bill of Rights (TABOR), anti-tax activist Doug Bruce. On the one hand, they, along with Bruce, don’t like taxes.

On the other, Doug Bruce takes his dislike for taxation to an extreme that Republicans should find most unsettling.

Bruce’s conviction for felony tax evasion and attempting to influence a public servant, related to a false charity he established to move money around between his personal wealth, business dealings, and his various local and statewide anti-tax initiatives, reveal the mind of the man who authored the labyrinthine Taxpayer’s Bill of Rights. TABOR’s restrictions on the timing and operation of elections for tax increases go well beyond the talking point that TABOR simply requires such elections. The complicated and sweeping changes to fiscal policy made by TABOR cannot even be undone in a single initiative due to the subsequent “single subject rule” passed in response to its complexities.

In short, TABOR’s simplified explanation that it requires voter approval of tax increases conceals all of the sneaky things it does to make such an election very hard to successfully carry out. Fixating on that one popular provision also conceals the fact that TABOR stripped the state of the most straightforward method of socking away revenue when times were good for when they weren’t–something voters say they support as a measure of fiscal responsibility.

Now we know that TABOR’s author Doug Bruce is just a sneaky guy in general. And the same mind that produced TABOR has now produced a felony case of tax evasion. For Colorado Republicans, for whom TABOR is an inviolable article of faith however much they don’t like the author, this situation will either result in either introspection, or denial meant to be loud enough to drown out said introspection.

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6. Hancock Beats “Class President” Romer, Survives Rocky Start. We’re going to upset some of you by positing that Mayor Michael Hancock was an absolutely awful candidate, perhaps one of the worst we’ve ever seen who actually managed to win their election. The fact that Hancock is now the Mayor of Denver is principally due to the fact that he was running against an even worse candidate in the person of former state Sen. Chris Romer, and that both Hancock and Romer were were able to outspend everybody else in the initial race.

Voters were surprisingly willing to put aside the fact that Hancock had repeatedly betrayed an anti-science (or at least scientifically ambivalent) bias when answering questions about creationism being taught in schools. In a city as educated and overwhelmingly Democratic as Denver, we do consider this to be fairly remarkable. Part of the reason Hancock drew a pass was the gleefully over-the-top way that Romer’s supporters tried to drive the issue home–facts of the matter notwithstanding, the Hancock campaign was able to convince the press that “negative campaigning” was the real story here, not the fact that Hancock had repeatedly expressed support for creationism in school curriculum. We wouldn’t have predicted that.

But there is perhaps no better example this past year in Colorado politics of a political self-inflicted wound than the reaction of the Hancock campaign to a story about Hancock’s name and phone number appearing in the records of the Denver Players prostitution ring, the same operation whose meticulous bookkeeping had already destroyed the career of a federal judge. Many details surrounding this “June Surprise” scandal remain mysterious–the original records were reportedly stolen from their owner at the height of the controversy in a case that remains unsolved. Hancock has consistently denied ever using the Denver Players prostitution service, and while he admits the phone number in the records is his, he claims it is not there legitimately.

All of which would have remained in the land of inside-baseball gossip until Hancock’s campaign broke agreements they had made with the press to disclose exonerating phone records, prompting the Denver Post and other major outlets to damagingly expose the allegations to the lay public. Whether a miscommunication, or an unexpected delay, or whatever, it was stunning to watch the press holding an uncooperative politician accountable–and probably a very good thing. Hancock ultimately did produce phone records that satisfied the press in terms of showing no contact with the Denver Players, which ended the standoff, but in the process he reminded everyone in public life of the power of a media doing its job.

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5. Scott Gessler–The “Honey Badger” of Colorado Politics. We’ll be honest, folks: we didn’t think infamous GOP elections lawyer Scott Gessler was going to be elected in 2010. We’re pretty sure that Gessler didn’t expect to win, either. But when the GOP’s #1 defender of groups and persons accused of election law violations became the chief enforcer of election law, we knew it was going to be bad.

And it’s fair to say that Gessler has shattered our expectations.

Secretary of State Scott Gessler has set a new standard for openly, wantonly partisan manipulation of his office and duties. Gessler began his term by announcing a plan to continue working for his old law firm, a situation so potentially fraught with conflicts of interest it was downright laughable. Gessler has (unsuccessfully) sought sweeping new power to purge the voter rolls based on dubious, unquantified allegations of “illegal voters.” Gessler tried to stop counties from mailing ballots for this year’s elections to tens of thousands of registered voters flagged as “inactive,” losing in court in his injunction attempt with the judge rebuking him in strong language about protecting the right to vote.

Gessler has been so openly and boorishly partisan that it is making other Republicans routinely cringe. This was well-illustrated this past summer when Gessler’s office first slashed the fines owed by the Larimer County Republican Party, then hosted a fundraiser for the same Larimer County GOP to pay off the remaining fines. Gessler’s original plan to appear in a “dunk tank” to raise money for the Larimer County GOP was canceled after statewide ridicule, but the fundraiser itself still went ahead.

None of the criticism over these gaffes has slowed Gessler down a bit: after a judge struck down Gessler’s loosening of campaign finance reporting requirements, he simply tried again in new rules he is proposing–rules that allegedly exceed his rulemaking authority in all kinds of other ways, too. After Gessler’s unsuccessful manipulation of a legislative error to unlawfully strike a whole class of primary campaign finance reports, Gessler imposed a new rule that intentionally produces the worst possible consequence of that error out of pure spite.

There are those who tell us that Gessler in fact has no plans to run for re-election in 2014, and looks forward to returning to the much more profitable legal representation side of election law. In the meantime, Gessler’s first year in office portends three coming years of more or less open partisan warfare waged from the Colorado Secretary of State’s office. Gessler’s not going to be nice about it, and he’s probably not going to be all that sneaky about it either.

Because “Honey Badger doesn’t give a shit.”

4. Mixed Messages: The Lobato Case and Proposition 103. Earlier this month, Denver District Judge Sheila Rappaport handed down a 180+ page ruling in the case of Lobato vs. Colorado. The Lobato case’s plaintiffs, led by rural school districts in the San Luis Valley but eventually including many other districts and individuals, alleged that Colorado’s public education funding system is not rationally related to the increasing requirements imposed on the system–and that the state is unconstitutionally violated the Education Clause in the Colorado Constitution obligating a “thorough and uniform” public education system.

In 180+ absolutely damning pages of meticulously-compiled evidence, Judge Rappaport agreed with the plaintiffs. The combination of so many limits on the funding of public education with the increasing requirements that standardized testing and school accountability programs have placed on the system has, ruled the judge, resulted in an irrationally underprovisioned and broken system that is failing in its charge to thoroughly and uniformly educate Colorado’s children.

Obviously there is a wide range of debatable positions in the argument of what constitutes a “thorough” education. But there are structural minimums in place as a result of standards now imposed on public education. If Judge Rappaport’s decision is upheld by the state Supreme Court, we will have a situation where the legislature, and also the voters, will be called out by the judiciary to take major action–possibly to the tune of billions of dollars per year.

Anyway, somebody really needs to explain this situation to the voters of Colorado, who rejected this November in overwhelming numbers a modest, temporary return to 1999 sales and income tax rates to raise some $500 million per year for public education. The Proposition 103 campaign in hindsight really didn’t have a chance: it was not supported by the governor or key institutional players beyond traditional education advocates. The campaign was never funded to the extent required to overcome the natural propensity against tax increases by voters. To the extent that the public was aware of the debate, there was an intense campaign of out-and-out misinformation waged by opponents.

What we have today in Lobato vs. Colorado decision and the results of Proposition 103 is a microcosm of the fundamental cognitive breach that exists in American politics after years of “small government” drum beating. The problem for the right is that they have in large part succeeded in their goal of depriving the public sector, through legislative, initiative, and executive policy, of the resources it needs to function. And they’ve swayed the public with their repetitious axioms.

But that’s why our system of government has checks and balances.

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3. Latinos, the RSCC and the Failed “Arizona Strategy.” The fastest-growing demographic in the United States is the Latino population. They are also the fastest-growing segment of the electorate. Throughout the West and the whole nation, Latinos are increasingly showing political strength, and are expected to become a decisive factor in coming election cycles.

Just as the Republican Party is doing their level best to permanently alienate them.

Led by the passage of the controversial anti-immigrant SB-1070 in Arizona, the “Tea Party”-influenced GOP is creating a long-term demographic disaster for itself as Karl Rove, former Colorado GOP chairman Bob Martinez, and many others have warned with increasing urgency. In Colorado this year, Republicans in the General Assembly repeatedly introduced legislation that attempted to mimic Arizona’s law in whole or in part. All of them were defeated, but be assured the Latino community took notice of what was happening and who was responsible.

In some ways, it seems as though the GOP can’t help itself on the issue of relations with Latino voters. Rep. Mike Coffman, a staunchly conservative congressman now running in a highly competitive district, still championed ill-advised legislation to relax federal requirements regarding the distribution of bilingual ballots–not targeting illegal immigrants but legal American citizens.

There remain some voices in the Colorado Republican Party who are opposed to the anti-immigrant posturing of many of their colleagues. Rep. Robert Ramirez, for example, told the New York Times that the GOP needs to become the “party of inclusion”–right after he voted against the ASSET bill to allow undocumented students in Colorado access to in-state tuition.

It’s still possible that reasonable voices in the GOP will prevail in the long run, especially if this continued anti-immigrant posturing begins to be felt negatively at the polls more than it helps shore up the conservative base. But in Colorado, even among those who claim they would like to see that, they did themselves no favors in 2011.

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2. GOP Historically Bungles Reapportionment. The story of state legislative reapportionment in Colorado this year, which established General Assembly district boundaries for the coming decade, is one of partisan overreach, self-destructive belligerence, and bogus recriminations.

Nonetheless, both sides seem to be adapting to the new reality.

The state legislative reapportionment commission, composed of equal numbers of Democrats and Republicans with one tie-breaking unaffiliated voter, originally produced new House and Senate maps that were approved with bipartisan support. But some Republicans, led by state party chairman Ryan Call and House Speaker Frank McNulty, weren’t entirely happy with these bipartsan-approved maps, and led the effort to appeal them to the Colorado Supreme Court.

When the Supreme Court sided with Republicans and ordered the maps remanded with instructions to reduce the number of county splits between legislative districts, Republicans cheered. The commission went back to work, and the unaffiliated chairman Mario Carrera ultimately voted with Democrats in a 6-5 vote to approve their proposed maps. The Democratic maps, as ordered by the Supreme Court, reduced the number of county splits and were duly affirmed. But it’s critical to understand that it was Republicans who led the fight against the original maps, and it was this second round of belligerence and exposure to risk that proved to be their cardinal error.

Following the commission’s 6-5 vote to approve the Democratic maps, Republicans exploded in a fury of accusations that the process was rigged–that Republicans didn’t get as much time as Democrats, than chairman Carrera had somehow “misled” those who recommended his appointment by having made political donations as an unaffiliated voter. On examination of the procedural record, these claims didn’t hold up. Republicans were submitting late proposals just like Democrats, and the idea that an unaffiliated voter isn’t “allowed” to make political donations, which Carrera has to both parties, is frankly kind of ridiculous.

One effect the new maps do have, compared to the first approved maps, is a number of incumbents who were either drawn out of their old districts, or drawn into districts represented by other incumbents (or both). Since approval of the final maps, some Republicans, and at least one Democrat, have announced their intentions to step aside in 2012. In HD-19, a high-profile primary between two GOP incumbents is getting underway–even though one of them, Majority Leader Amy Stephens, had been guaranteed a primary regardless of the outcome of reapportionment. Claims that these changes were an intentional “misogynist” attack on conservative women have been debunked to the point of backfiring on the accusers. And Democrats insist these changes were necessary in order to comply with the court’s directions in remanding the original maps.

And the funny part is, as Republican commissioner Bob Loevy discovered when he actually started looking at these new maps, is that they really don’t give the kind of advantage to Democrats that Republican accusations about them presuppose. In fact, what you have in Colorado are far more truly competitive districts, districts that don’t lend themselves to political extremism on either side. Districts that a moderate reasonable Republican could win or a moderate reasonable Democrat. To the extent that Republicans may have fewer such moderate reasonable candidates in their farm league, well, that might be a short-term issue for them.

But objectively, most of the state’s voters fill find this a positive development.

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1. Redistricting and Colorado’s New Congressional Landscape. In response to significant changes in the makeup and distribution of Colorado’s population in the last ten years, Democrats came into the congressional redistricting process thinking big. And through a combination of savvy politics, expert map-drawing strategy, and persistence, they got much of what they wanted.

Much like the legislative reapportionment process described above, Republicans were never really able to articulate a coherent strategy for congressional redistricting. Their arguments as the divided General Assembly’s redistricting committee futilely attempted to agree on a map essentially boiled down to status-quo preservation and accusations of bad faith on the part of Democrats.

Democrats responded by drawing better maps. Starting with maps that made the biggest changes to Colorado’s congressional districts in 30 years, Democrats answered criticisms and feedback by scaling back those proposals while preserving many of their overall goals. As a result, relatively incremental changes were made to CD-3 on the Western Slope. But CD-6, created as a safe Republican seat in 1980, was dramatically changed into a hotly competitive and diverse district centered on the city of Aurora. This change firmed up CD-4, held by freshman Rep. Cory Gardner, as a safer GOP seat at the direct expense of CD-6 incumbent Mike Coffman. CD-2, represented by the wealthy and liberal Jared Polis, becomes somewhat more competitive, and Ed Perlmutter’s CD-7 becomes more compactly centered on his home turf of suburban Jefferson County.

In all, the affirmed changes do result in an excellent chance for Democrats to recapture the majority of the state’s congressional delegation, today 4-3 GOP. Apart from the hardening of CD-4 for the GOP and the continued uncompetitive nature of El Paso County-centered CD-5, there’s really no place in the state where Democrats cannot strongly contend for these seats. But as with reapportionment, this should not breed complacency: they are competitive seats, not partisan freebies by any stretch.

As with reapportionment, the GOP’s engagement in the redistricting process was simply not constructive, and ended up distracting and self-injurious. Their proposals were unimaginative, and based on a rote defense of the status quo that judges rejected. Their public relations strategy of stoking public outrage over minute details in this inside-baseball process was a failure with both the media and the judiciary–for whom their pouting was never a factor anyway.

We won’t really know the full story of redistricting until after the 2012 elections, of course–you can make the argument that it won’t really be known until it’s time to do this again in 2021. Last time, Republicans turned the story of redistricting into a scandal by attempting an unconstitutional do-over in 2003 after electoral gains the previous year.

No such scandal this time. Assuming these maps play out as the sides expect them to, Republicans were simply beaten, fair and square, in the biggest game of the decade.