With 2022 an election year, lawmakers traditionally back off a bit from introducing controversial bills. That’s why they have approved some of the biggest measures of the past six years — oil and gas reform, Colorado option, climate change and greenhouse gas — in odd-numbered years when they worry less about voter reactions at the ballot box.
Will 2022 be part of that tradition or will lawmakers buck the trend and go for broke?
Already, some of the bills being talked about for the session that begins on Jan. 12 could keep lawmakers working into the wee hours of the morning, similar to the 2021 session.
In theory, they'll stay away from the most aggravating non-budget policy fights.
Bob Loevy, professor emeritus at Colorado College, frames the tradition this way: "With all of the state House of Representatives and half of the state Senate up for re-election in even-numbered years, it makes sense to avoid controversial issues that might be used against legislators in the upcoming elections."
Of course, he added, whether a bill is controversial depends on varying opinions. And he noted that, with term limits, legislators not seeking reelection could be "more courageous about pushing controversial legislation."
But the biggest battles will likely focus on spending. Unlike in 2020, when the government shut down parts of the economy and lawmakers cut $3.3 billion, the state this time around is flush with cash.
Driven by strong wages, consumer spending and business growth, legislative analysts revised their September forecast to add $791.4 million to the fiscal year 2022 revenue. They also anticipate that legislators will have $3.2 billion more to spend compared to the current spending plan — a complete reversal from the budget cutting days of the 2020 session.
Their actions in the upcoming session will have a direct bearing on state finances in just a few years, when the state is expected to face billions of dollars in deficit.
However, just how much gets done could depend on the latest COVID variant, Omicron.
For the past two years, lawmakers delayed or canceled portions of the 120-day session while hoping that COVID tamps down. But with Omicron now the dominant cause of COVID in the United States, and with half of new cases in Colorado tied to it, will the new variant result in a third consecutive pause?
For now, legislative leaders expressed optimism that 2022 won't be a repeat of the previous two years.
Senate President Leroy Garcia, D-Pueblo and House Speaker Alec Garnett, D-Denver, noted how the situation has changed rapidly over the course of this pandemic but added the vaccine is highly effective.
"We feel that, with sufficient safety protocols in place, the session can proceed safely at this time," they told Colorado Politics in a joint statement. "We will continue monitoring the situation, and always prioritize the health of our members, the public, and our hardworking staff while ensuring the people of Colorado can continue to participate in the legislative process."
Another crucial factor is Gov. Jared Polis' legislative agenda. The governor will present his fourth State of the State address at 11 a.m. on Jan. 13, where he is expected to try and set the tone for the session.
Here’s a look at some of the hot topics shaping up for the 2022 session.
Money, money, money
The 2022 General Assembly will have big dollar signs in their eyes, the result of $3.8 billion in federal funds plus another $3 billion in one-time money in the state general fund, according to the Dec. 17 forecast from legislative economists.
But the federal money from the American Rescue Plan Act (ARPA) must be spent by Dec. 31, 2024, which means legislators have to decide quickly how and where to allocate the funding. The spending deadline also potentially creates a major conundrum, in which programs funded with one-time cash (affordable housing, behavioral health) face a fiscal cliff in three years.
And it remains to be seen how the abundance of funding - as opposed to scarcity of money - would shape the budget battle.
In the 2021 session, two bills set up funds to handle $550 million in federal funds, intended to address pandemic relief.
HB 1329 established the affordable housing task force, along with $100 million in ARPA dollars in fiscal year 2021-22, to address housing insecurity, lack of affordable housing, or homelessness resulting from the COVID-19 pandemic. However, the bill did not set a date for when those recommendations are due to the General Assembly and governor.
The task force has met just six times since the bill was signed, although it can meet for up to 16 times.
A draft funding strategy, presented on Dec. 8, would direct between $400 million and $569 million toward affordable housing in a variety of programs:
- Revolving loan fund — $146 million to $208 million. This creates 20,000 new units and stabilizes another 27,000.
- Nonprofit and local government grants — $110 million to $164 million. This creates 20,000 new units and stabilizes another 27,000.
- “Resident-owned communities,” mobile home parks and land-banking — $28 million to $44 million. This stabilizes 14,000 units.
- Permanent supportive housing — $28 million to $40 million. This creates 10,000 new units.
- Modular housing — $32 million to $40 million. This creates 100,000 new units.
A second committee, on behavioral health, also has a draft on funding strategies for the $550 million it was allotted under Senate Bill 137. Its first year spending, in 2021-22, stood at $114 million.
The committee's funding strategies for spending between $379.5 million and $471.5 million include the following:
A Southern Ute behavioral health facility — $20 million to $25 million
Youth and family residential care, including funding more beds in youth facilities — $54 million to $59 million
Adult residential care — $47 million to $55 million
“Immediate life-saving activities,” to include opioid treatment — $20 million to $24 million
Investments in school-based health centers — $1.5 million
Investment grants for community services for children, youth and families — $50 million
Crisis response, diversion and competency grants — $43 million to $94 million
Behavioral workforce training — $18 million to $25 million
Behavioral health workforce retention — $50 million
Community investment grant — $25 million to $50 million
The $3 billion in one-time general fund money doesn’t have a set purpose yet — and won’t until final figure-setting takes place in March. Legislative Council economists noted the available dollars don’t take into account increased caseload, which normally surface in areas such as Medicaid, behavioral health, child care, or corrections.
That said, the state budget for the upcoming fiscal year is likely to be a record-setter at $40 billion, nearly $6 billion higher than the current year.
But there are clouds on the horizon in the form of what state economists call a structural deficit or "fiscal cliff."
The structural deficit, which is estimated to be at zero in 2023, would balloon to more than $2 billion by 2027 without prepaying certain state obligations, according to the Office of State Planning and Budgeting.
Notably, Democrats are wary that state spending on critical services could be constrained by the Taxpayer's Bill of Rights, which sets limits on how much the state government can collect and spend.
With that in mind, Gov. Jared Polis has asked lawmakers to set aside more money in the state's general fund reserve, plus prepay $1.8 billion in future obligations in the following areas:
- $330 million to the State Education Fund
- $58 million to delay employer/employee paid leave premiums for six months
- $71 million to fund an agreement with Colorado WINS, the state employee union
- $354 million for universal preschool
- $147 million for affordable housing, spread out over a three-year request
- $270 million for three years of Colorado Department of Transportation payments
- $380 million to prepay the state's obligation to the Public Employees Retirement Association under SB 18-200
- $220 million in controlled maintenance
Retirement and pension
Part of the General Assembly’s budget-balancing in the 2020 COVID session included canceling a $225 million general fund payment to the Public Employees’ Retirement Association, a requirement under Senate Bill 18-200. That annual payment resumed in the next fiscal year.
Lawmakers are now wrangling over whether to pay it back, pay it back with interest, or don’t pay it back at all, and the battle lines are already being drawn.
The Pension Review Commission, led by Rep. Bird, intends to sponsor a bill that would pay the $225 million, plus $78.57 million in interest that would have accrued over two years had the payment been made under PERA’s investment rate of return.
The Legislative Council, which is made up of legislative leaders and select lawmakers from both sides of the aisle, is required to review and approve interim committee bills. It’s usually just an up or down vote, and in their Nov. 15 hearing on those bills, council members approved everything in front of them.
But some on the committee clearly did not favor the PERA repayment, a sentiment shared by members on both sides of the aisle. Both Esgar, Sen. Dominick Moreno, D-Commerce City and Sen. Paul Lundeen, R-Monument, said they agreed with paying the $225 million, but the $78.57 million in interest is another matter altogether.
Moreno said paying interest could set a precedent he isn’t comfortable with. He explained that no other budget cut to a state agency was restored with funding exceeding the original cut. Other programs could make the case for missed opportunities or services not rendered, he warned.
The Legislative Council approved the bill, but with hopes that conversations between Bird and the Joint Budget Committee, as well as the Governor’s Office, would continue.
Not making that $225 million payment, according to PERA spokesman Patrick von Keyserling, "would have a long-term impact of about $993 million with the 7.25% long-term expected rate of return over the period until full funding."
Could this finally be the year that the interim committee on school finance comes up with a plan to rework how K-12 public education is funded?
The Interim Committee on School Finance is now in its fourth year of trying to figure out a better way to cover the cost of K-12 education, which eats up about 39.5% of the state budget.
In 2021-22, for example, the state paid 61% of the cost of K-12 education, at $4.8 billion, with local communities picking up the rest — $3.1 billion — through property taxes.
The upcoming agenda for a Jan. 10 meeting of the interim committee hints that bill proposals are finally ready for prime time, but as it turns out, not on a school finance formula rework.
Sen. James Coleman, D-Denver, said bills in 2022 from the committee are a possibility, and one would skirt around the edges of the school finance formula without making major changes.
The committee’s concerns have focused on funding for special education and ensuring allocation for low-income students and those in rural communities, Coleman told Colorado Politics.
Then there’s the impact of COVID on education when remote learning isn’t always possible in some parts of the state, and that also is part of the mix, he said.
“Dustbin of history,” quipped committee member Rep. Colin Larson, R-Littleton, who said he doesn’t think a bill revamping the school finance system will ever take place.
He said bills coming from the committee are likely to focus on changes to the state land trust, categorical areas, such as special education, English Language Learners and gifted education, and tweaking the formula on the definition of at-risk students. The current definition for the latter is free and reduced-price lunch students, Larson said.
For the past several years, however, that hasn’t worked because students weren’t at school during the pandemic.
A proposal that Larson doesn’t support seeks to implement a mill levy override match.
Committee Chair Rep. Julie McCluskie, D-Dillon, who also chairs the Joint Budget Committee, and her JBC colleague, Sen. Bob Rankin, R-Carbondale, favor that approach, according to Larson.
The proposal would apply to school districts that are property poor and don’t have a sufficient property tax base, Larson said. There’s a fundamental inequity in place, but added the current school finance formula is partly to blame for it.
It would incentivize districts to ask voters to raise property taxes through mill levy overrides in order to receive the state match.
“You’re bribing districts to raise taxes,” Larson said of the match proposal. “We shouldn’t go down that road.”
In 2021, a furor broke out after two Democratic members of the House voted down a cash bail legislation that took two tries to move from the Senate to the House.
Sen. Pete Lee, D-Colorado Springs and Rep. Adrienne Benavidez, D-Adams County, in the last session sponsored both SB 62 and SB 273, which would have prohibited custodial arrests for certain traffic, petty, misdemeanor or municipal offenses and low-level felonies, including for minor drug possession, unless a custodial arrest is required by state law or the offender could not produce identification. It also would have limited the use of cash bail under those charges, which supporters said disproportionately impacts low-income people.
District Attorney Alonzo Payne of the 12th Judicial District in the San Luis Valley, spoke in support of SB 273 last session, arguing custodial arrests for misdemeanor offenses disproportionately affect low-income individuals.
“Misdemeanor offenses for the large part, if you were being held in custody, it is because you are poor. When people are being presented with cash and surety bonds that are anywhere from $50 to $5,000, those are amounts that most people can't meet,” he said.
SB 62 never made it out of its first committee hearing in the Senate, while SB 273 reached the Senate, albeit on a largely party-line vote, with one Democrat voting no. SB 273 got through the House Judiciary Committee with one Democrat voting against the bill, but that wasn’t enough to put an end to it. That happened in House Finance, where Reps. Shannon Bird, D-Westminster and Matt Gray, D-Broomfield, joined Republicans in voting it down.
Both bills drew heavy opposition from law enforcement.
“This completely takes away our discretion in dealing with repeat offenders, and, unfortunately, while these crimes are labeled lower-level, they affect thousands of crime victims,” Colorado Springs Police Chief Vince Niski said. “We all agree this bill is going to reduce arrests, monetary bail and jail populations, but no one has said it will reduce actual crime and no one has a backup plan if crime spikes further because of it.”
With attention now being drawn to escalating crime rates in Colorado, which one study blamed on the state’s “criminal-friendly public policy,” will another bail or arrest legislation be in the cards for 2022?
Not from Lee, he told Colorado Politics. But he’s not abandoning the idea, either. He said recently the bill would likely start in the House. Benavidez said she’s working on it, but it won’t be among her first three measures in 2022.
Likely sponsor: Rep. Jennifer Bacon, D-Denver, who was traveling out of the United States and was unavailable for comment.
The Treatment of Persons with Mental Health Disorders in the Criminal Justice System Committee, which meets the year-round, has proposed five bills to deal with aspects of criminal justice and mental health.
Three of the five specifically focus on criminal justice issues, such as modifications to the plea of not guilty by reason of insanity, changing how pretrial diversions for those with behavioral health issues are handled, and developing jail standards.
Under insanity pleas, the committee learned that individuals may be confined from one day to life for a crime they may not be criminally responsible for because of mental health conditions.
Lee, who served on that committee during the summer, said some people are confined to mental health facilities for years longer than the time that would have been imposed for a prison sentence.
The bill coming from the interim committee would allow courts to evaluate defendants to see if they are eligible for community placement and set a maximum time for confinement.
Sponsors: Benavidez and Rep. Judy Amabile, D-Boulder
The pretrial diversion bill would extend a pilot program due to expire next year that places individuals with behavioral health issues and are charged with low-level crimes into community treatment programs instead of jail or prison.
Sponsors: Lee and Sen. Cleave Simpson, R-Alamosa
Benavidez said she and Amabile are working with the sheriffs’ association on the bill creating statewide jail standards, legislation rejected by the committee.
“Every jail operates independently,” and there are no minimum standards, Benavidez told Colorado Politics.
For example, in some jails, detainees placed in administrative segregation, known as solitary confinement, are to be checked on every 15 minutes. But some jails don’t require checking in as often. In Boulder, Benavidez said, one young man put in solitary pounded his teeth on a sink, losing seven teeth, and clawed his eyes out. Ryan Partridge, who suffers from a variety of mental health disorders, is now blind and suing the Boulder County Sheriff and other officials. The jail reportedly attempted to find a bed for him at the state mental hospital in Pueblo after he broke his teeth, but was told none was available, and took no further action until he clawed his eyes out.
The state banned the use of solitary confinement for more than 15 days in prisons in 2017, but it’s still used in city and county jails.
Amabile and Lee sponsored a 2021 bill, HB 1211, which prohibits jails with more than 400 beds from placing a detainee in solitary if they meet mental or physical health conditions or are under the age of 18. But the law requires only a check on those housed in solitary every 30 minutes.
The draft legislation proposed to the committee would create a Colorado Jail Standards Commission, comprised of sheriffs and county commissioners representing different areas of the state, people with experience of being incarcerated in a Colorado county jail, mental health and health professionals working in jails, jail rights advocates, jail employee advocates, and representatives from the Office of the State Public Defender and district attorneys. The commission would come up with minimum standards, according to the draft.
Sponsors: Benavidez and Amabile
The committee is also sending to the General Assembly a bill that could change how three-day holds are used in Colorado.
The bill recommends changing the standard for an emergency 72-hour mental health hold to include when a person appears to have a mental health disorder or be gravely disabled, and if a person appears to present a substantial risk of harm to self or others. It also defines “substantial risk,” according to the committee report.
Benavidez said that in one year, 50,000 people in Colorado were taken to hospitals for three-day holds, but only about 10,000 were actually put on those holds. As many as 3,000 were “gravely disabled” or at imminent risk of harming themselves or others, she said.
The problem is that a three-day hold is intended to be a pathway for assessment or treatment, but in most cases, by the time the person has reached the hospital and talked with a doctor, they’re coherent and no longer a threat, and they are then released without getting help.
Sponsors: Benavidez and Amabile. Benavidez added that Amabile is working on a separate, longer bill on civil commitment standards.
And for Coloradans who have experienced the theft of a catalytic converter, Benavidez and Sen. Joann Ginal, D-Fort Collins, are trying to help.
Benavidez said she and Ginal are working on a bill with the Attorney General’s office to address catalytic converter thefts. According to CBS Denver, Lakewood Police reported 11 catalytic converter thefts in 2019. In 2021, it’s up to 145.
Catalytic converters aren’t being stolen to put into other vehicles; Benavidez said it’s against the law in Colorado to install a used converter. The value is in the rhodium, one of three precious metals used in converters. It’s valued at $28,000 per ounce, according to a recent NPR report.
The cost to consumers whose converters are stolen isn’t cheap — it’s about $3,000 to replace a converter, according to Benavidez, whose daughter recently found the converter stolen from her car.
So far, the remedies have included putting vehicle identification numbers (VINs) on the converter, painting them with a bright color or putting a cage around it.
The legislative solution contains several components. According to the Attorney General’s Office, the legislation will tap into the commodity theft task force “by adding the materials within a catalytic converter to the existing authority. It creates record keeping requirements for transactions (typically salvage and recyclers) to help with investigations.” The bill will also add converters to the list of major components covered under the state’s “chop shop” statute. It also will “help relieve supply chain challenges by allowing aftermarket converters if they meet certain requirements,” the Attorney General’s Office said.
Sponsors: Benavidez and Ginal
Finally, the uproar over a 110-year prison sentence handed to truck driver Rogel Aguilera-Mederos, convicted of four counts of vehicular homicide in Jefferson County, is prompting calls for the General Assembly to take a look at minimum sentencing guidelines.
So far, however, there doesn’t seem to be much of a bite on that topic.
Sen. Bob Gardner, R-Colorado Springs, had been mentioned as a possible sponsor of a bill to look at the issue. Gardner told Colorado Politics he’s planning to speak to prosecutors and the criminal defense council on whether the Aguilera-Mederos case is an anomaly on consecutive sentencing, how the system works and whether change is needed. He has not committed to running a bill.
Two years ago, he noted, when the accident happened on I-70, people were clamoring for a stiff sentence for the driver because of the deaths and injuries. Two years later, he said, four million people with limited knowledge of the case and the remedies are signing a petition to seek a lesser sentence.
“Whatever might happen to Aguilera-Mederos, it’s clear he is deserving of some time in corrections; the jury found him guilty, and there are sentencing review procedures,” Gardner said.
“It’s astounding to me that an egregious and reckless disregard for the safety of others, resulting in four lives lost, has now become a backlash” about how Aguilera-Mederos was unjustly treated, he said.
“The criminal justice system is to work deliberately and thoughtfully and based on the facts of the case. What I want to do, after reading about the 110-year sentence and that they are consecutive, is to learn about the case, how it played out and what the law is,” Gardner said, adding he would then determine what might be appropriate to address the Capitol.
“I have no doubt that will be a hot topic” in 2022, Gardner said, given that legislatures are largely reactive institutions.
“Whatever the latest topic that appears two or three times in the newspaper immediately right before the session is guaranteed to produce bills,” whether they’re thought out, deliberated or even necessary, Gardner said.
Public Employees Union
One bill that will likely generate a lot of heat around the Capitol is House Majority Leader Daneya Esgar’s second attempt at allowing all public employees to join a union.
A 2021 draft bill that never made it to the floor would allow unions for anyone employed by cities, counties, school, library or fire districts, public colleges or universities, or the Office of the Colorado State Public Defender.
The 2021 draft said public employees would be allowed to unionize, collectively bargain, communicate with unions and other public employees, participate in the political process, have exclusive representation at formal discussions on grievances or personnel policies and practices, and be able to post information on unions in an employer’s facilities.
Joining a union, under the draft, is optional. Each bargaining unit could be as small as an individual campus, for example.
One wrinkle is how it affects the 104 home rule cities and three home rule counties, which under state law are allowed to conduct their own affairs. The 2021 draft did not exclude them, which raised the ire of city leaders, including Colorado Springs Mayor John Suthers.
Another wrinkle is strikes. State law prohibits certain employees — state employees for example — from striking, but the 2021 draft did not include that prohibition for other public employees.
Esgar, D-Pueblo, said recently she held off introducing the bill in the 2021 session because she wanted to make sure the groundwork was done and that the stakeholder process was thorough, and there just wasn’t enough time to do all that.
As the pandemic has continued, however, she said she and others have “seen the issues for working people coming up, and wanted to make sure we’re listening and hearing what’s happening.”
She said she is meeting with proponents, as well as opponents.
“There have been issues in the public sector for a long time. This isn’t new,” she said.
But, she added, the pandemic has "exacerbated those issues, and this year we have to move forward and get this done.”
The General Assembly, until recently, had a bicycle caucus, and one of the last bills coming from that caucus allowed local communities to decide on whether to allow an “Idaho Stop.”
That’s when a cyclist approaches an intersection, and after determining it’s safe to proceed, can ignore the stop sign or slide through the red light. Few communities in Colorado, however, have taken advantage of that law.
The interim transportation committee, however, decided the time has come to make the Idaho Stop statewide. The measure also allows pedestrians to skip the stop signs and red lights, when safe to proceed. A 2020 study in Delaware, which adopted the law in 2017, showed a 23% decrease in crashes involving bicycles at “Idaho stop” intersections.
Sponsors: Gray and Rep. Edie Hooton, D-Boulder; Sen. Faith Winter, D-Westminster.