Lobato vs. Colorado at the Colorado Supreme Court

9NEWS reports, a portentous set of oral arguments just finished before the Colorado Supreme Court:

It will be months before the Supreme Court issues a ruling, which could have a major affect [sic] on the state budget…

"We're a wealthy state," said Kathleen Gebhardt, founder of Children's Voices, a non-profit law firm which advocates for education. "We're in the top 10 for wealth and in the bottom for funding our students."

Gebhardt is an attorney representing the plaintiffs in the lawsuit of Lobato vs. the State of Colorado. The lawsuit, which has been initially upheld in district court, states that school funding is not equal across the state of Colorado and that is a violation of the state constitution. The case is currently under appeal.

According to the Colorado Department of Education and Gebhardt, schools receive an average of $6,474 per pupil in tax dollars.

"And, that puts us well into the bottom quadrant of all other states," Gebhardt said. "That worries me greatly about Colorado."

The district court ruling, which we discussed when it was issued back in 2011, was a thorough 180+ page indictment of the present state of Colorado's education system. District Judge Sheila Rappaport found that Colorado's public education funding system is not "rationally related" to the increasing requirements imposed on it–and that the state is unconstitutionally violating the Education Clause in the Colorado Constitution, which requires a "thorough and uniform" public education system.

If plaintiffs prevail, what could follow is a massive and court-mandated shakeup of not just education funding, but just about every other publicly-funded program in the state of Colorado as priorities obligatively shift to comply. The potential major upheaval this could create is a big reason why Gov. John Hickenlooper and others, even many who would support a large systemic change in support of public education, to oppose plaintiffs and argue that creating a "thorough and uniform" education system is a responsibility of the elected legislature–not the courts.

Recognizing the difficulty in striking a balance between these competing rational arguments, but mindful of the stories of severe hardship in many chronically underfunded school districts around the state, we've been anticipating this showdown for some time.

Another Shot At The Apple?

Not to be lost among the splashier debates underway at the Capitol, the Durango Herald's Joe Hanel reports today on an ambitious new School Finance Act proposal from Sen. Michael Johnston:

A state senator is proposing a $1 billion tax increase to fund the first major change in 20 years to the way Colorado pays for its schools.

Sen. Mike Johnston, D-Denver, has previously sponsored controversial school-reform legislation, including an end to seniority-based job protection for teachers.

On Monday, he unveiled what he called the capstone of those efforts – a new school-finance system to pay for the reforms passed by the Legislature. But if his bill passes, it would not take effect unless voters approve a historic tax increase for schools.

“We see this as a once-in-a-generation chance to get this right,” Johnston said…

The Legislature currently spends a little more than $5 billion on public education. Johnston estimated his new system would require an additional $750 million to $1.1 billion a year.

Read more about Sen. Johnston's proposal here. In addition to increased funding generally, badly needed after years of cuts, what we're looking at here is the first real proposal to address the historic ruling in the case of Lobato v. Colorado–which ruled that education funding in the state is fundamentally unequal, and not "rationally related" to the constitutional requirement to provide a thorough and uniform education for all students.

The last such attempt to boost education funding, 2011's Proposition 103, bombed with voters, but in the wake of its defeat, it's become clear that many voted against it because they didn't consider it to be a sufficient remedy for the problem. That fact would seem to be acknowledged in Sen. Johnston's call for an additional billion dollars per year, a number much closer to what experts say public schools in Colorado need to recover from years of austerity and cuts than Proposition 103's modest and temporary tax increases could have provided.

It's increasingly likely that this proposal, or something like it, will be a big part of our politics very soon.

#Obamaquester? Too Clever By Half

jedimindtrickOur friends at the Washington Post report:

Congressional Republicans now have a hashtag for their efforts to pin the blame for the looming sequester on President Obama: #Obamaquester.

President Obama this week ramped up public calls for the GOP’s cooperation on averting the deep automatic spending cuts set to go into effect on March 1. 

The National Republican Campaign Committee and House leadership on Friday began pushing the hashtag #Obamaquester, surfacing an excerpt from Bob Woodward’s book “The Price of Politics,” wherein Obama aide Jack Lew first proposes the deep cuts as a trigger for future action on debt…

But as Natalie Jennings at the Post quickly reminds her readers, the plan for "sequester" cuts in the Budget Control Act of 2011 were approved by a large majority of Republicans–a much greater percentage of Republicans than Democrats in fact–at the end of a long episode where those very same Republicans held the nation hostage in demand of…bigger budget cuts! You remember all of this, don't you? It wasn't that long ago. 


Boehner: Obama Seeks GOP’s “Annihilation”

Politico–tough to consider this a constructive attitude:

President Barack Obama is aiming to “annihilate” the GOP during the president’s second term, House Speaker John Boehner says.

“And given what we heard yesterday about the President’s vision for his second term, it’s pretty clear to me that he knows he can’t do any of that as long as the House is controlled by Republicans,” Boehner (R-Ohio) said at a gathering of the Republican-oriented Ripon Society on Tuesday, a day after President Barack Obama’s second Inaugural address. “So we’re expecting over the next 22 months to be the focus of this Administration as they attempt to annihilate the Republican Party. And let me just tell you, I do believe that is their goal — to just shove us into the dustbin of history.”

Boehner’s comments came in the wake of what critics called an unusually partisan inaugural speech from Obama, who pledged commitment to liberal priorities including climate change, protecting entitlements and gay marriage.

President Barack Obama’s second inaugural address received high marks from base Democrats, many of whom had felt frustrated by Obama’s long and usually fruitless negotiations with Speaker John Boehner and congressional Republicans–negotiations in which Obama was seen making concession after concession to Republicans, and still failing to attract their support. And it needs to be said every time–the things Obama wants enjoy popular support.

Bottom line: Boehner’s charge that Obama wants to shove the GOP “into the dustbin of history” is laden with irony after GOP Senate Leader Mitch McConnell’s promise in 2010 to render Obama a “one-term President”–his “top priority” as you recall. Arguably, Obama’s first four years in office amounted to one massive campaign by Republicans to shove Obama “into the dustbin of history.” And as opinion polling shows the public understands today, this was done without heed to the collateral damage: to the economy, or to the public’s confidence in any of our leaders.

And now that they have failed, totally failed, it’s Obama who wants to “annihilate” the Republican Party?

No, folks. If that’s what happens, history will record they did it to themselves.

Mesa Valley District 51 had a SURPLUS in 2010-2011 of $2.124 Million!

Contrary to popular news flashes and propaganda released by the Mesa Valley School District 51 and their Union TABOR buster handouts, they actually show a Surplus in the recent 2010-2011 Colorado Department of Education (CDE) Total Expenditures and Revenues.  This is after the hotly contested Mill Levy Override requested last year by the District Administration for 3B in which Mesa County homeowners and businesses rejected!  The businesses and homeowners were asked to give up a Starbucks coffee and a movie in return for an increased property TAX and the District pleaded that if the Levy override wasn’t passed schools would close immediately.  To date NO Mesa Valley Schools have been closed and at the January 8th, 2013 school board business round table discussion it was mentioned by a Board member that the District had extra funds available this year as well.

BUT what is interesting as you dig into the PAST you discover A SPENDING Problem during some of our best financial years!!!  Also notice the per pupil funding as it differs often from the low $6,100 you always hear.

Here are the 2010-2011 Totals based on 21,025.2

Total Revenues (Incoming Taxes) $212,037,042.00 or $10,085 per pupil

Total Expenditures (Outgoing Cost) $209,912,512.00 or $9984 per pupil

Surplus (What’s left over after all Cost) $2,124,530.00 or $101 per pupil

Just to completely verify the above numbers as accurate, VetTheGov contacted CDE finance office staff via email. Here is the Exchange:

Hello Theresa,

Questions on Total Revenues vs Expenditures at the District Level.

Do the totals in Table IIB rows J & K for 2010-2011 represent every dime from that District??? Is there any other Expenditures or Revenues not shown here and if not where else would they be???

Do reimbursements for transportation or special needs appear in these calculations???

Mr./Mrs. _____,

It reflects all reported expenditures reported by the districts. If you asking about state categorical funding for transportation and special education? If so, yes the revenue and associated expenditures are reported.

Theresa Christensen | Sr. Consultant Public School Finance | Colorado Department of Education

Since we have been hearing about the dire straight budget constraints over the past few years of recession lets look back a couple of budget cycles.

Here are the 2009-2010 Totals based on 20,996.2 pupils

Total Revenues (Incoming Taxes) $202,371,247.00 or $9638 per pupil

Total Expenditures (Outgoing Cost) $201,300,376.00 or $9587 per pupil

Surplus (What’s left over after all Cost) $1,070,871.00 or $51 per pupil

Here are the 2008-2009 Totals based on 21,041.8 pupils

Total Revenues (Incoming Taxes) $195,144,726.00 or $9274 per pupil

Total Expenditures (Outgoing Cost) $199,263,059.00 or $9470 per pupil

Deficit (Overspent Revenues) $-4,118,333.00 or $-196 per pupil

Here are the 2007-2008 Totals based on 20,241 pupils

Total Revenues (Incoming Taxes) $188,562,683.00 or $9316 per pupil

Total Expenditures (Outgoing Cost) $194,187,598.00 or $9594 per pupil

Deficit (Overspent Revenues) $-5,624,915.00 or $-278 per pupil

Here are the 2006-2007 Totals based on 20,206 pupils

Total Revenues (Incoming Taxes) $179,871,623.00 or $8902 per pupil

Total Expenditures (Outgoing Cost) $194,976,795.00 or $9649 per pupil

Deficit (Overspent Revenues) $-15,105,142.00 or $-747 per pupil

Interesting to Note that in 2010-2011 the CDE administration’s budget was $38.5 Million for 110 Full Time Equivalents (FTE) and has been raised during this recession to just over $80 Million for 150 FTE’s!  So CDE how can you justify 40 new administrators during a recession for twice the previous allocations???  Taxpayers these are the questions you need to ask your elected officials, otherwise the Smoke & mirrors campaign pushes forward!

After following the PAST money trail it appears during the Boom cycles Mesa Valley District 51 Overspent by a large amount and after being over $24 Million in the RED  they finally have their hands around how to budget!  Kudos to the current administration especially Melissa Devita for stopping the bleeding but it leaves many questions as to why the HUGE deficits when times were best and now when times are poor you are actually in Surplus. Mesa County residents these are the questions to begin asking the school board and school administration!  Where have the TARP monies been spent???  Why are you not discussing all Revenues when discussing the budget only State and local funds???  Why do you state that Federal funds are directed to be spent in certain areas when you know that is an untrue statement???  Why did you overspend back in the BOOM cycle???  How much monies from Referendum C did you receive???  Why the ATTACK on TABOR???

Here is the Districts Smoke & Mirror campaign of trying to cover up the past OVERSPENDING issues when State Tax Revenue times were at their pinnacle!!!  Enjoy the Video!

Colorado Senate Leads Off With Working Class Tax Credit

Colorado Senate Bill 13-001, as announced yesterday by the Democratic Majority Office:

When the Colorado General Assembly reconvenes on January 9, President Morse will introduce Senate Bill 1, the Colorado Working Families Economic Opportunity Act of 2013. The Act would create a tax credit for working families, a child and dependent care credit, and a child tax credit against state income taxes.

Many Colorado families are still struggling from the impact of our slow economic recovery, which has made it hard for wages to keep up with the increasing costs of basic necessities like childcare and transportation. This bill could provide a financial boost for more than 370,000 working families.

The Colorado Working Families Economic Opportunity Act is a refund mechanism funded by a state revenue surplus, in accordance with the Taxpayers Bill of Rights (TABOR). Additionally, this proposed legislation would not create more government or bureaucracy because it is based upon already established federal guidelines and qualifications for earned income tax credits.

As further explained by KRDO-TV Colorado Springs:

Senate Bill One, the Colorado Working Families Economic Opportunity Act of 2013 proposes three tax credits. One would be for families who earn up to $60,000, the second would be for families with children and the third would be for families who provide for someone like children or an elderly parent.

“If you’ve got a single mom with two kids, making $32,000 a year, she’d get about $720 worth of credit that she would then be able to use to pay for childcare, pay for medical expenses, pay for transportation expenses, those kinds of things” Senator Morse said.

He said families receiving the tax credits wouldn’t be the only ones affected. He said the small businesses that employ them would also benefit, as workers would be able to attend work more consistently. And he said by spending that money they keep, those individuals would stimulate the economy.

The effect of passage of these refundable tax credits would be similar to the help to working families provided by the Democratic-favored federal Earned Income Tax Credit, and paid for with improving revenues now coming in as the economy recovers. Particularly with the recent end of the federal payroll tax “holiday” benefiting many of the same working class taxpayers, it’s tough to argue against this credit despite its expected fiscal note. As was the case with the EITC, we expect to see some impact studies showing this plan having a greater positive economic impact than, say, funding the Republican-favored Senior Homestead Exemption.

A clever initiative for Senate Democrats; we’ll be curious to see the arguments against this.

Denver’s Donnell-Kay Foundation Hears Pension Reform Ideas From Pew Center.

On October 17, 2012, the Donnell-Kay Foundation held a “Hot Lunch” meeting in Denver with representatives of the Pew Center and the John Arnold Foundation.


My take is that Donnell-Kay is an organization that works for the betterment of Colorado’s education system, but is also an advocate for elimination of public sector defined benefit plans in favor of cash balance or defined contribution plans. I believe that Donnell-Kay finds a kindred spirit in the Pew Center/Arnold Foundation partnership.

Here’s a description of the “Hot Lunch” presentation:

“Josh B. McGee, Vice President for Public Accountability Initiatives at the Laura and John Arnold Foundation, presented ‘Affordable, Sustainable and Secure: Fixing retirement savings systems for future generations.” Also presenting at the “Hot Lunch” was David Draine, lead researcher on public sector retirement systems at the Pew Center on the States.

A Podcast of the presentation is available at a link provided by EdNewsColorado here:


And, slides from the talk are here:


I listened to the podcast and looked at the slides. I appreciated Josh McGee’s third slide titled “Colorado Pension Plans – Recommended and Actual Contributions.” This slide addresses the shortfall in the Colorado General Assembly’s annual required public pension contributions over the last decade. (Later in the presentation, David Draine of the Pew Center states that the Colorado General Assembly has underfunded Colorado PERA by $3.5 billion from 2000 to 2011.)

On Josh McGee’s seventh slide he suggests that: “The unfunded (pension) liability should be viewed as government debt.” (Agreed . . . in fact, I’ve noticed that Colorado’s TABOR amendment implicitly recognizes public pension obligations as state “debt,” not to mention Colorado case law, AG opinions, etc.)

On later slides Josh McGee presents the John Arnold Foundation’s advocacy of cash balance and defined contribution plans.

An ednewscolorado.org article covering the “Hot Lunch” presentation quotes David Draine on the reasons for Colorado PERA’s financial downturn: “Contributions weren’t made, benefit increases weren’t paid for and investment returns didn’t materialize, he (Draine) said.”

A person named “Marilyn Sweet” has the following comment (in the comment section) under the ednewscolorado.org article covering the Hot Lunch presentation:

“This article fails to mention that in 2000 the Republican governor and legislators made PERA refund money to employees in the form of Matchmaker which gave us each $40 a month in refunds from the pension system. The fund was 102% funded and apparently this was unbearable to the Repubs. The problem stems from the lawmakers messing with a good system and not ‘banking’ during the good years. Poor business practice at best. Don’t blame the retirees for this shortsightedness.”

(My understanding is that EdNewsColorado is funded by Donnell-Kay.)

In my opinion, the Pew Center appears to be ready to save public resources through the breach of public pension contracts where possible (see comments below in support of pension reforms adopted in Rhode Island and San Jose that seized contracted pension COLA benefits.)

Now for a few quotations from the podcast. David Draine of the Pew Center on the States:

“From 2000 to 2011 contributions from state and local governments in Colorado fell short of what they should have been by $3.5 billion.”

“Ultimately these benefit promises will need to get paid.”

“It is also clear that the longer states delay the more painful the fiscal impact will be.”

(This statement calls to mind an observation from the Illinois pension reform debate:

” . . . 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)

In his talk, David Draine also sang the praises of the San Jose and Rhode Island pension reform efforts (which, by the way, included COLA theft.) Finally, he noted that PERA’s new leader, Greg Smith, was also present at the hearing. As a newly anointed Executive Director, where does Greg Smith intend to take Colorado PERA next?

Josh McGee, of the John Arnold Foundation then spoke. Here are a few quotations:

“We’ve promised one thing and funded something completely different.”

“There is an incentive to underfund these systems.”

(I found it interesting that Josh McGee commented on the loss in pension wealth that his wife [who is teacher] incurred when the couple chose to move from Arkansas to Texas.)

Josh McGee then pointed out the benefits of cash balance and defined contribution plans, and said that the costs of transitioning to a new public pension system is a “red herring.”

“There are no costs to transitioning” to a new plan system.

So, in my opinion, it appears that the Pew Center and the John Arnold Foundation are not attempting to provide objective public policy research . . . they are advocates for specific policy solutions to the public pension underfunding problem, and are apparently apologists for the breach of public pension contracts. (Nothing wrong with being an advocate as long as you let people know!)

Here’s a link to a Josh Mcgee paper recommending DC plans, Cash Balance plans, and Hybrid pension plans:


Here’s the Donnell-Kay’s position on Colorado PERA:

“The current pension system (PERA) provides none of these assurances; it ensures that salaries are held low, that once a person enters the teaching profession, for example, that they should stay for their entire lifetime, that there is only one way to save for retirement and that wildly optimistic earnings projections will mask a system that is and never will be fully funded.”






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.”



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.”



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:


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:


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:  



“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.”



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.



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.)


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:



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.'”


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.)


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.)


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:


“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”?)


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.])”


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?)


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:


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  


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.