Let’s say a highway washes out in September. Should we wait until January or later to fund repairs?

Colorado Amendment 78, at its simplest, would require the Colorado General Assembly to formally appropriate “custodial moneys,” for the most part money that comes to the State of Colorado but is not generated by state taxation. The ballot language calls for the custodial moneys to be “appropriated in a public hearing with opportunity for public comment.” Today, custodial moneys can be spent without formal General Assembly public process – for example, certain emergency pandemic relief funds were authorized for spending through Governor’s executive orders and not legislative process.

Amendment 78 amends both the Colorado Constitution and Colorado Revised Statutes, and since it amends the Constitution it would require at least 55% voter approval instead of a simple majority to pass.

What’s At Stake?

Amendment 78 would establish a “Custodial Funds Transparency Fund” in the state Treasury. All moneys considered custodial would need to go into this fund, and Amendment 78’s language says the Colorado General Assembly “shall annually appropriate” the fund.

The Colorado Blue Book offered a few examples of what would be considered custodial moneys:

  • Emergency relief funds: For example, federal CARES Act funding that helped Colorado deal with a wide range of COVID-19 pandemic impacts.
  • Other federal money: Think health care, transportation, or education money, and it would be considered “custodial” if the feds say how it should be spent.
  • Legal settlements: These funds may now be spent according to the terms of court orders, but under Amendment 78 they would need to be legislatively appropriated.
  • Transportation funding: Most state transportation spending is allocated by the Colorado Transportation Commission, but the legislature would need to directly allocate this spending under Amendment 78.
  • Grants, gifts, and donations: For example, under Amendment 78 the legislature might need to appropriate a gift directed to the University of Colorado.

The measure itself doesn’t seem very clear on what the legislative process would be, only saying moneys “shall be appropriated in a public hearing with opportunity for public comment.” Today, state bills that include appropriations get public hearings in the Appropriations Committees in both the House and the Senate, and there can be public testimony in Appropriations hearings though it’s somewhat rare. Then, if the bills pass Appropriations, the entire House and Senate would both need to pass the bill, but there are not public hearings during formal House or Senate chamber meetings.

Also, Amendment 78 is actually being challenged in court, as of early October. According to this story from the Colorado Sun:

“Scott Wasserman, of the Bell Policy Center, and Summit County Commissioner Tamara Pogue claim that Amendment 78, which would require more legislative oversight over how money from legal settlements and the federal government is spent, should be able to appear only on even-year ballots. That’s because odd-year elections in Colorado are supposed to be reserved for questions that have to do with the Taxpayer’s Bill of Rights…(Amendment 78 proponent Michael) Fields said he thinks the lawsuit is frivolous and that it will be quickly tossed out in court.”

Who’s Behind It?

The language for Amendment 78 was originally filed as Initiative 19, and after gathering enough petition signatures the initiative became Amendment 78. The proponents of Initiative 19 were Michael Fields, Executive Director of Colorado Rising Action and former Colorado director of Americans For Prosperity, and Suzanne Taheri, former Deputy Secretary of State under Scott Gessler. The official committee is called “Committee for Spending Transparency,” and Fields is the registered agent for this committee. As of October 5, the committee had reported $1,275,000 in contributions, all of it coming from the organization Unite For Colorado.

As of October 9, I have not found a website or a committee for opponents to Amendment 78.

PRO

  • This measure would give the public an opportunity to directly weigh in on spending involving custodial moneys, whereas today people might not even know the spending is taking place.
  • Amendment 78 would provide legislative oversight, and it’s not impossible that members of the legislature might see things that other agencies might miss.

CON

  • “Custodial moneys” includes federal emergency funding, which typically needs to be used as soon as possible. Amendment 78 might delay disbursement of these moneys.
  • The state General Assembly is typically only in session from January through May every year. Emergencies can happen any time, and if they happen when the legislature isn’t in session, either the Governor would need to call a special session or appropriating the money would need to wait until the legislature was back in regular session.

ON THE WEB

Richard’s Take

I’m a strong “no” on the measure, though the broader concept might be worthy of more detailed future discussions than what we’d get through a blunt amendment to the Constitution. Here are a few of my major problems with the ballot measure.

Part-Time Legislature, Full-Time World: Under normal circumstances, the Colorado General Assembly only meets for 120 calendar days per year, normally January through May. But if we have an emergency like a natural disaster in between sessions – and we need money from the federal government for public safety solutions – the General Assembly would not be in session and would not be able to hold public hearings unless the Governor called a special session. And calling a special session for such a purpose would not only be a waste of time and money, it would be foolish because unless some number of legislators are more heartless than I think, votes on spending emergency funding like this ought to be close to unanimous.

Furthermore, just because we might have a natural disaster in, say, July, does not mean we couldn’t have another in October.

I could understand a well-reasoned debate over when and where certain spending decisions might best make use of public process, but Amendment 78 would remove all discretion and require legislative process for certain actions that in many cases ought to be basically automatic.

Timing Matters: Some, but perhaps not all, outside funding is to address purposes for which time might be an issue. For example, the federal CARES Act funding included housing and eviction funding support. People facing evictions or homelessness, especially during cold-weather months, needed help as soon as possible. The General Assembly can move rapidly, but it takes time to draft legislation, schedule and hold public hearings, consider amendments if necessary, and pass legislation through the House and Senate. In certain situations, unnecessary delays of days or weeks could really matter.

Political Balance Could Make a Difference: Right now, Democrats control the state House and Senate, and generally speaking I would guess Democrats would rarely oppose allocating federal funds given for specific purposes. But the state Senate has tended to be a little closer in political balance than the House recently, and flipping just a couple Senate seats could flip the balance – it had an 18-17 Republican majority as recently as 2018. I would love to hope that should Republicans gain control of a legislative chamber, they would not use this power to block or delay spending these funds, but I can’t ignore the general differences between the parties when it came to dealing with certain parts of the pandemic. Emergency federal COVID assistance would have been considered custodial moneys under Amendment 78, and I feel that putting issues like this back into the partisan political sphere would be at best risky if not irresponsible.

Unwieldy: The General Assembly typically deals with more or less 600 bills per year, plus resolutions, over the course of 120 days. Adding custodial moneys legislation and public hearings to this workload could cut into the time legislators might need to deal with a host of other issues. Plus, these moneys are typically given to the state for specific purposes, which makes adding another layer of deliberation seem wasteful and time-insensitive to me.

I hate to do this twice in one election guide, but as with this year’s Colorado Proposition 120, voters need to be wary about ballot initiatives coming from Americans For Prosperity or the Independence Institute, or people generally associated with these organizations, because they will keep running ballot measures with the potential to prevent or delay certain types of government spending as long as they believe there’s a chance of success. Don’t fall for it.