In a grueling hearing that stretched nearly nine-and-a-half hours, the Colorado Initiative Title Setting Review Board on Wednesday considered 61 proposed ballot initiatives, ultimately advancing oil and gas setbacks, the expungement of criminal records and a slate of tax policy issues toward the ballot.
“I hope to not see you again anytime soon,” Board Chair Theresa Conley jokingly told a lawyer for two of the proponents late in the evening.
Seventeen of the initiatives arose from Vision 2020, an effort to launch a tax-related measure to the November ballot. A spokesperson for the Colorado Fiscal Institute, which is part of Vision 2020, said that the coalition has not decided which of the various measures will circulate, but that “the Title Board rulings will help Vision 2020 network partners decide which initiatives to choose from.”
Board members’ reactions, in turn, were illuminating.
“What are you guys doing here?” asked Jason Gelender, representing the Office of Legislative Legal Services.
The board was puzzled over Initiative #180, which would require voter approval for any tax increase or new tax that affected the bottom 90% of income earners. Gelender wanted to know how the proposed constitutional amendment would interact with the Taxpayer Bill of Rights, which already requires approval from all voters for tax raises.
“I’m not sure I know the answer to that question,” responded Edward Ramey, the attorney for designated representatives Carol Hedges and Steve Briggs. “I think you posed a good question, and I don’t think this is really the venue to sort that out.”
“Well,” Gelender responded after a pause, “to find the single subject, the first thing we have to know is some idea of what this does.”
To advance a proposed initiative for signature gathering, the board must find that the measure adheres to a single subject, then set a ballot title for the voters to read that is brief and includes all of the central features of the initiative.
Gelender added that the initiative does not appear to do anything novel.
“TABOR may or may not be around,” Ramey responded. “TABOR may go through its own vicissitudes. I’m not trying to be coy.”
Gelender pointed out that Hedges and Briggs are also the proponents of a separate ballot measure this year to repeal TABOR.
The two other board members were also critical of the vague answers they were getting from Ramey.
“I think we’re kind of being cute with the voters,” said Daivd Powell, the representative of Attorney General Phil Weiser.
“I also would like to note my discomfort and frustration for the record,” said Conely, the representative of Secretary of State Jena Griswold.
Earlier, the board had grown skeptical of another Vision 2020 constitutional amendment proposing the right to “a fair and just tax system” that would “provide the revenue to satisfy constitutional requirements; establish justice; ensure safety and security; promote the general welfare...and protect the environment and natural resources.”
“How is the fair and just tax system connected to” all of those provisions, asked Powell. “That seems to be like those are other subjects.”
“We are trying to accomplish a broad, constitutional, minimum conceptual basis for the way the tax system should work, and not to get into detail,” Ramey responded.
Powell observed that he doubted a voter could understand what the amendment would accomplish, adding, to Ramey, “I know you can’t even explain it.”
The Title Board also advanced initiatives from Hedges and Briggs to recalculate tax increases at the state and local level that are subject to voter approval. They considered 13 additional proposals to establish a progressive income tax and a minimum corporate income tax, which would raise up to an estimated $2.5 billion annually.
Powell, however, voted against many versions of the proposal that combined the two tax provisions, believing that the dual tax changes violated the single-subject requirement.
The revenue would go towards education and addressing “the impacts of a growing population and a changing economy”.
When the board asked Ramey what the latter expenditures would look like, he responded, “That is a broad topic. I suppose there’s some things that would not fit within that topic. I’m not sure I’m competent to address what. Maybe large pay hikes for government officials?”
After the hearing, Hedges, the executive director of the Colorado Fiscal Institute, said that she brought forward 13 similar measures to have "all the options" available for circulation, given that she could not change anything once submitted.
"We don't know what the title's going to say. We're still gathering input," she said. "Just like a legislative process goes right down to the very moment you vote on a bill.
After previously blocking a proposal that would have established a process for criminal records expungement, the Title Board considered 27 versions of the concept from designated representatives Stephen Ball and Paul Ball.
“I really appreciate what you’re trying to do here. Our charge is to determine if what you’re proposing meets the single-subject requirement,” Powell said. “There’s a lot of things that you have in here that I think are separate subjects.”
The measure would collect expungement fees and distribute them to such varied purposes as a fallen first responder fund, agricultural scholarships and Colorado pet overpopulation. The Title Board in January felt the funding for those programs did not fit within the single subject expungement process.
Stephen Ball, who is not a lawyer but worked with Legislative Council Staff on the documents, had difficulty explaining the relationship between funding for educational and rehabilitative programs and expunging criminal records.
“We look at the expungement of the records and it says, okay, ‘well maybe your life, if you were to get in trouble, isn’t going to be ruined forever,'” he said. He described how people may be so fearful of getting a criminal record that they approach interactions with police in an escalated fashion.
He then pivoted to the fallen first responder funds, stating that if a police officer found themselves killed in the line of duty, there would be money such that “your family can be taken care of. So maybe you’re going to approach that situation with a little more humanity.”
Board members expressed that they wanted to help the proponents get a title set. Eventually deciding that the single subject was the use of expungement fees, the board greenlit seven of the proposals. The board clerk explained that traditionally, proponents with multiple versions of the same idea would agree to only circulate one. Ball indicated that he would do the same.
He said afterward that he submitted multiple, slightly modified initiatives so that the Title Board could find one that met their criteria and to make it likelier that at least one initiative would survive challenges from objectors.
The Title Board also advanced five proposals that would increase the setback requirement from occupied structures and “vulnerable areas” like parks and playgrounds for oil and gas operations. Two-thousand and 2,500-foot setbacks were proposed, as was the option to allow certain single-family homeowners to exempt their property from the setback. An additional proposal would require that extraction companies provide at least $270,000 in financial assurance that they can close and cleanup the well.
The designated representatives stated that they would only circulate one version of the setback measure.
Finally, the Title Board moved forward multiple ballot initiatives to raise the cigarette tax and establish a nicotine products tax. The money would go toward expanding preschool access.