Gov. Race 2018: Brauchler and Robinson would both sign deal to save rural hospitals

Lew Gaiter has questions about its constitutionality, Joanne Silva wouldn’t sign it, and they differ on whether the bill violates the ‘spirit of TABOR’

Gov. Race 2018: Brauchler and Robinson would both sign deal to save rural hospitals

Two Republicans running for governor in 2018 say that despite reservations if they were currently in the office they would sign a compromise bill to reclassify a nearly billion-dollar hospital program to stave off crushing blows to rural hospitals. A third Republican candidate said he’d defer to the governor’s legal counsel about its constitutionality, and fourth said she wouldn’t sign it.  

Arapahoe-area District Attorney George Brauchler and Denver businessman Doug Robinson say they have been closely following a high-stakes debate over a program called the hospital provider fee. The fee is matched by federal dollars and distributed to hospitals to help cover the costs of health care for low-income and uninsured Coloradans.

Related: What the hospital provider deal deal does

If approved, the new law would reclassify the provider fee program into a standalone government enterprise exempt from a 1992 constitutional amendment known as TABOR— the Taxpayer’s Bill of Rights, which requires voters to agree to raising taxes, and limits state spending.

Reclassification would not only spare hospitals from drastic budget cuts, it would allow the state to bring in more money to spend on transportation, healthcare and education. The move has been a key budget priority for Democratic Gov. John Hickenlooper and Democratic lawmakers, and it has made for some bitter partisan battles over the past few legislative sessions.

But while both Brauchler and Robinson say Hickenlooper should sign the bill, they differ on whether doing so violates the spirit of TABOR. Brauchler says it does; Robinson says it doesn’t.

Larimer County Commissioner Lew Gaiter, who is also running, has not been following the details of the bill as closely and says he would refer the question of its constitutionality to legal counsel.  “The challenge is I don’t know all the specifics on the bill,” he said, adding that scathing criticism by his friend GOP Sen. Kevin Lundberg, who  called the bill “the worst piece of legislation I’ve seen in 15 years,” gives him pause.

Victor Mitchell, who formerly served in the legislature and is also running for governor, declined through a spokesman to discuss his take on the bill. “This is an issue that we are still studying,” the spokesman said.

Retired banker Joanne Silva of Loveland, who is also running, says she would not sign the law. She says she’s been following the debate by reading news coverage of it. “Every time that the state legislature tries to deviate from TABOR the voters just don’t like it,” she says. “I think we should stick with TABOR and not start compromising.”

Jim Rundberg of Moffat who has also filed paperwork to run for governor as a Republican didn’t respond to a voice message.

As far as deals and negotiations go, this particular piece of legislation has emerged as the grandest of bargains in the waning days of the legislative session. And, not surprisingly, not everyone is happy with every part of the deal, which still must clear the House before the session ends Wednesday. The give-and-take, horse trading and brinksmanship required to reach a compromise also illuminated key differences of opinion, especially around TABOR.

Related: What you need to know about Colorado’s biggest political battle

One aspect upon which Brauchler and Robinson agree is the leadership of Sterling Republican Sen. Jerry Sonnenberg, who led talks for the GOP caucus throughout the process and who has 11 rural hospitals in his district.

“I find him to be a great Republican leader,” Robinson told The Colorado Independent. “So I would be inclined to be for something if he’s for it.”

“I respect the hell out of Jerry Sonnenberg for his attempt to try and service [rural Colorado],” Brauchler said. “I just wish we had had better help with a better bill.”

But the two differ widely on a key aspect of the deal— whether reclassifying the hospital program violates the spirit of TABOR. In not counting the fee against Colorado’s revenue limits, the state is free to bring in more revenue — at least $656 million more—without having to go to voters.

At first, Sonnenberg wanted to lower the TABOR cap by basically the same amount that would be reclassified to keep state spending on a leash. Democrats bargained that reduction down to $200 million. In subsequent haggling, Democrats in exchange gave Republicans something they wanted: a doubling of Medicaid copays for prescriptions from $1 to $2, on average, and of outpatient visits from $2 to $4.

Related: Deal to save rural hospitals clears first hurdles

Brauchler, who is staking out a position in the more conservative lane of the 2018 GOP gubernatorial primary, says lowering the state’s revenue limit by $200 million wasn’t enough. If he were governor, he said, he would have pushed to lower the TABOR cap the whole way down— to $656 million.

He flat out called the legislation “certainly not the spirit of TABOR.”

“If I had been governor during this process, I would have used whatever political influence and capital I had to push back harder on the reduction of that spending cap, one, and two, to work harder at getting better reforms on the Medicaid side of things,” he said.

Brauchler also is not sold on the idea that reclassification into an enterprise is constitutional — despite an opinion from Republican Attorney General Cynthia Coffman that it is. The constitutionality aspect was one of the largest sticking points during the last legislative session. Coffman’s opinion seemingly put an end to it. (Coffman has said she is also thinking about running for governor.)

Related: Five reactions to Cynthia Coffman’s hospital provider fee bomb

“If the AG’s office were the last stop on the test of constitutionality we wouldn’t need a court system,” Brauchler said. “I don’t disrespect the AG’s office and I respect Cynthia and the smart people she has working for her with their opinions, but I want to think about that. Because before they came out with that opinion I felt pretty strongly that something like this wouldn’t have been constitutional because of the end-run it creates on TABOR.”

Robinson said he would have liked the TABOR cap to come down “another hundred million or more,” but when it comes to the other TABOR aspect of the bill he says he has a businessman’s take on it. TABOR has been good for Colorado, Robinson said, because it forces those in government to act cautiously with the hard-earned money of taxpayers. But he also said TABOR carves out space to create a government-owned enterprise.

“On occasion we’ve looked at situations where we have to make an exception— and that’s what TABOR is all about,” he said. “So I think this is within the spirit of TABOR.”

As for Gaiter: “My question is: Is there another way to do this without doing an end-run around TABOR and is it truly an end-run around the Colorado constitution?” he said. “If I sat down, and my attorney said, ‘Yes, Lew, it is an end-run around the Constitution,’ I would veto it.”

 

 

Photo by Toshiyuki IMAI for Creative Commons on Flickr.

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About the Author

Corey Hutchins

is a journalist in Colorado, and Columbia Journalism Review's Rocky Mountain correspondent for the United States Project. Follow him on Twitter @CoreyHutchins and email him at CoreyHutchins [at] gmail [dot] com.

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