Did the Colorado legislature’s biggest compromise set a Republican tripwire over TABOR?

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UPDATE: Since this story was posted, 18th Judicial District Attorney George Brauchler, who is running for governor as a Republican, said after thinking about it more he would not have signed the law. He said he believes it is unconstitutional. He said he would find the money to save rural hospitals elsewhere in the budget. He said he was a reluctant supporter at best on the day the compromise passed. “Certainly I’ve changed my position on signing it, but the distance between those positions isn’t that dramatic,” he said.

In the days after the end of the latest legislative session, a narrative that emerged was one of bipartisanship and compromise.

But “compromise” can sometimes be a dirty word, especially when it comes to party primaries, plenty of which could take place in 2018. Some potential challenges follow a high-stakes deal lawmakers passed to reclassify the state’s hospital provider fee so it is exempt from the Taxpayer’s Bill of Rights, commonly known as TABOR.

A constitutional amendment narrowly approved by voters in 1992, TABOR limits government spending through a complex formula, and in certain segments in and outside the Capitol is sacred to limited-government conservatives.

Any hints of its betrayal are akin to apostasy.

As a result, most Republicans in past sessions have said no— and Hell No— to reclassifying this hospital provider fee program, which was a top agenda item for legislative Democrats and Democratic Gov. John Hickenlooper in recent years. Doing so would bring in more revenue the state could use for transportation and education and help stave off hospital closings in rural districts. Some Republicans, though, saw reclassifying the fee as an end-run around TABOR— despite an opinion from GOP Attorney General Cynthia Coffman that doing so would be constitutional.

This year, Democrats and some unlikely Republicans hammered out a way to do it that made reclassifying the program palatable to both sides. But Senate Bill 267 still took the nearly $1 billion hospital program out from under TABOR.

Related: Republicans walk a tightrope over rural hospital fix

Now, with the session over, election season soon begins. And one looming question will be whether TABOR hardliners will try to make those Republicans who voted for the plan pay for what they did.

The Colorado Union of Taxpayers, for one, has thrown down the gauntlet.

“As Rush Limbaugh said after Obamacare repeal failed*, ‘there’s no reason to vote for Republicans,’ and that applies to the Colorado Republican Party as well,” CUT’s president, Greg Golyansky told The Colorado Independent.

Not everyone believes the group and those like it carry potent influence in GOP circles.


At least one Republican in the group’s crosshairs has a “bring it on” attitude as he heads into his next election.

Sterling Republican Sen. Jerry Sonnenberg, the chief GOP architect of the hospital TABOR deal, says he was threatened with a primary challenge, citing the Colorado Union of Taxpayers and another group, Principles of Liberty, as agitators.

“If you can find somebody who can represent the district better, and the district supports them, fine,” Sonnenberg told The Independent. “Choice is good— it gives me an opportunity to have these conversations with folks and how they want the district represented.”

Principles of Liberty director Rich Bratten says his group doesn’t comment on candidates, just public policy, although the group annually rates lawmakers on their voting record as it applies to conservative principles of free markets, limited government and personal responsibility. Sonnenberg was named one of the group’s top 10 lawmakers for his votes in the 2016 session and No. 3 among Republican senators.

In the two weeks since the vote, anger from some limited-government faithful has been bubbling.

TABOR defender Jon Caldara, who leads the libertarian-leaning Independence Institute think tank, penned a column headlined “The grand betrayal of Colorado Senate Republicans”— a counter narrative to all the talk at the Capitol about a “grand bargain.” He described the hospital provider fee vote as a repeat of the TABOR time-out ballot measure in 2005 called Ref C. That year, Colorado’s term-limited Republican governor, Bill Owens, joined Democrats in supporting the successful measure that lifted TABOR spending caps.

“What Republicans just did on Senate Bill 267 makes Owens look like Barry Goldwater,” Caldara wrote.

A total of 19 Republican lawmakers— 11 in the House and eight in the Senate— cast votes in support of the deal. Some of them knew doing so might help them write their own political obituaries.

Consider what GOP Rep. Lois Landgraf of Fountain said on the House floor prior to the vote. She hated having to vote on it, she said, because she knew she’d be called a “squish” and a RINO— for Republican In Name Only. She talked about some nicknames floating around for clusters of Republicans who supported the bill. The Fraudulent Four. The Three Stooges. Some of those catcalls came from outside the Capitol, but those who supported the provider fee bill took heat from their fellow Republican lawmakers, too.

“This is what we do to ourselves,” Landgraf said. “In spite of that, some of us vote on bills that we know won’t be popular, and other people vote against them because that’s what suits their district. And that’s OK. What’s not OK is that we tear each other up. What’s not OK is that I know that by the time I walk out of here I will have earned myself a primary.”

Multiple other lawmakers have also indicated concerns to The Independent that their votes might mean they, too, will catch a challenge from the right in their next election.

One of them is GOP Rep. Phil Covarrubias of Brighton, a first-year lawmaker and one of seven new Republicans in the House. Four of those seven voted in favor of the provider fee compromise. Covarrubias called it a tough first year, in part because of votes he made for the provider fee bill and a bipartisan transportation plan that eventually collapsed in the GOP-controlled Senate. And while he has heard talk of a potential primary opponent, it isn’t coming from within his district, he says.

“I based my decision (on the provider fee bill) from what I heard from the Joint Budget Committee and from the budget, not from any group or political party,” he said, adding that he told just that to an emissary from the Colorado Union of Taxpayers.

There might be a few constituents in his district who are TABOR hardliners, but he believes the session set a high-bar for getting things done.

Two weekends after the vote, about 70 miles south in Colorado Springs, GOP Sen. Bob Gardner, who voted for the deal, held a town hall in his district. He says constituents, even GOP primary voters, by and large might not be so tuned into the issue. But it did come up. He found those there open to a discussion about how he believed his vote was a necessary one to make.

Gardner, it should be noted, was once nearly removed from the House Appropriations Committee because of what he characterizes as his strong defense of TABOR. He says he knows there will be people who call him out for his vote on the hospital provider fee bill but he maintains he is no less committed to TABOR now than he was a decade ago.

He said the Republicans at his town hall last Saturday were open to hearing him out about why his vote was necessary, but he acknowledges not everyone shares his view.

“It’s kind of all over the map,” Gardner says, adding he believes the vote will likely be a key issue in what is expected to become a large Republican primary race for governor.

Indeed, the hospital provider fee vote was one the GOP candidates for governor were closely tracking as it played out. Anticipating primary voters might wonder how a future Republican governor would have handled the law if they were in office— sign it or veto it?— The Colorado Independent put the question to those currently running.

Two GOP candidates for governor said despite reservations if they were currently in the office they would sign the compromise bill into law. A third said he would defer to the governor’s legal counsel about its constitutionality, and fourth said she would veto it.

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

One of the Republican candidates who said he would sign the law was Arapahoe County-area District Attorney George Brauchler. He would do it, he said that day, but grudgingly.

“I think the alternative is too devastating for the rural community and I think we’re sort of in a place now where we’ve got to take this the way it’s at,” he said. “My regret is that because of a lack of leadership and political pressure from an office that could have exerted both we’re at a place where we’re going to have to accept not the best outcome here. But I think we have to do it for rural Colorado and for that I support it.”

A few days later, however, a scroll through Brauchler’s Twitter feed might leave one thinking otherwise.

When asked again about his views about the law on the morning of May 23, Brauchler said his views had not changed since the day of the vote, though it was something he was still struggling to reconcile. He maintained that just because GOP AG Coffman says the law is constitutional doesn’t mean she has the final say. A court could decide otherwise, he said. So the conundrum: Sign a law you think could be unconstitutional but will save rural hospitals, or veto it and make lawmakers hash it out in a special session?

Later that night, however, he said after thinking about it more he would not have signed the bill into law.


*Correction: an earlier version incorrectly noted that Rush Limbaugh referred to passage of the new health care bill; he was referring to the failure of the Republican-dominated Congress to repeal the Affordable Care Act.

Photo by Embajada de los Estados for Creative Commons on Flickr.