5 reactions to Cynthia Coffman’s hospital provider fee bomb

Republican Attorney General Cynthia Coffman’s office dropped a news bombshell at the state Capitol on the eve of the Colorado caucuses— when most eyes are turned toward national politics not state level skirmishes.

Her office’s decision to give a legal green light to Democratic Gov. John Hickenlooper’s plan to reclassify a billion-dollar hospital program into an enterprise, exempting revenues from triggering refunds under the state’s Taxpayer’s Bill of Rights, is generating reactions across Colorado.

In a statement, Coffman called today’s opinion “a thoroughly researched legal analysis based on the language of the constitution and informed by Colorado court interpretations” of the Taxpayer’s Bill of Rights. “It answers a narrow legal question and outlines the minimum requirements under current law to create a ‘government-owned business’ under TABOR.” 

Coffman also said:  “While some may attempt to politicize this legal conclusion, my opinion is based solely on the law and its application to the facts. The debate over whether to create a Hospital Provider Fee enterprise can now shift back to the General Assembly.” 

The news broke at 10 a.m. And with the hot-button issue now out of legal limbo, Democratic leaders in the legislature were quick to jump on it, while Republicans in the House and Senate were not. In fact, in the House, the Democratic Speaker is already talking about legislation. Republican Senate Majority Leader Bill Cadman told reporters he would talk about potential options once legislative lawyers review the AG’s opinion. House Republicans hadn’t issued any formal statements from their caucus. Later, he released a statement.

Here’s a roundup of reactions from across the spectrum so far:

“I’m pleased that the answer is yes. The attorney general adds legal clarification to a growing consensus that this bill is constitutional. I will be working with members on both sides of the aisle in both chambers, and with education and transportation advocates, business leaders and healthcare providers to draft a bipartisan bill to prevent the 2016-17 state budget from becoming a disaster for the people of Colorado.” — Democratic House Speaker Dickey Lee Hullinghorst.

“Through a fair and complete process, we have now heard from two Attorney Generals who have stated that administering the hospital provider fee as an enterprise fund is indeed constitutional. We have the constitutional means to pass a balanced budget in a manner that protects our Colorado way of life. Now is the time to come together and take legislative action on our budgetary crisis to ensure we can provide great schools for our kids and safe roads and bridges across the state.” — Senate Democratic Minority Leader Lucia Guzman.

“Just because the Colorado Attorney General’s office believes that enterprising the Hospital Provider Fee is legal doesn’t make it advisable. Though over 300 special interest groups are pushing for this gimmick, AFP-Colorado will continue to hold its ground in opposition to this action. The reality is enterprising this fee will not solve the long-term state budget issues. And even Governor Hickenlooper has asserted that the people of Colorado do not want their elected officials taking away their refunds and going around their Taxpayer Bill of Rights. The state legislature should stand firm for taxpayers.” — Michael Fields, Colorado state director for Americans For Prosperity.

“The legal opinion from Attorney General Cynthia Coffman is great news for Colorado. A number of legislators expressed concerns about the legality of a hospital provider fee enterprise and this mitigates those concerns by confirming this change can be made constitutionally by our state legislature. Putting the legal question to bed means we can move forward with this strategy to secure funding for transportation infrastructure and education in Colorado.” – Kelly Brough, president and CEO of the Denver Metro Chamber of Commerce.

“While we certainly respect the attorney general’s opinion and will take her analysis into account, our objections to the hospital provider fee maneuver don’t hinge solely on this one question of constitutionality, as important as it is.

Whether or not this would count as an ‘enterprise’ under law doesn’t address the unprecedented proposal to not ‘rebase’ the budget, as required by the Colorado Constitution. Neither the AG’s opinion nor the opinion drafted by a collaboration of private law firms surmise that an HPF Enterprise could, or should, be treated differently than other state enterprises. The AG’s opinion didn’t even reference this constitutional issue. The private opinion, however, touched on this issue by asserting, ‘It is entirely consistent with TABOR for the Provider Fee enterprise to enjoy the same treatment as CU.’

Enterprising this fee and treating it the same as the University of Colorado, however, was not proposed in last session’s legislation. While that scheme cited the Constitution to establish a new enterprise, like CU (requiring the revenues to be set outside of Colorado’s state income) unlike the CU enterprise, that legislation tried to maintain those enterprised revenues ($690 million) within the spending base. This is a statutory slight-of-hand not allowed by Colorado’s Constitution.” — Republican Senate President Bill Cadman

A spokesperson for the governor hadn’t responded to an e-mail request for comment this morning, and the governor’s budget director didn’t return a morning voicemail by the time this post was published after 3 p.m.

Photo credit: Cynthia Coffman for Attorney General